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EXHIBIT 10.8
EXECUTION COPY
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USS RECEIVABLES COMPANY, LTD.,
as Company,
UNITED STATIONERS FINANCIAL SERVICES LLC,
as Servicer,
and
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Trustee
on behalf of the Holders
UNITED STATIONERS RECEIVABLES MASTER TRUST
SECOND AMENDED AND RESTATED POOLING AGREEMENT
Dated as of March 28, 2003
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
Section 1.1 DEFINITIONS............................................................................2
Section 1.2 OTHER DEFINITIONAL PROVISIONS.........................................................28
ARTICLE II CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF RECEIVABLES.............................................................29
Section 2.2 ACCEPTANCE BY TRUSTEE.................................................................33
Section 2.3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY RELATING TO THE COMPANY.................33
Section 2.4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY RELATING TO THE RECEIVABLES.............38
Section 2.5 TRANSFER OF INELIGIBLE RECEIVABLES....................................................40
Section 2.6 PURCHASE OF INVESTOR CERTIFICATEHOLDERS' INTEREST IN TRUST PORTFOLIO..................41
Section 2.7 AFFIRMATIVE COVENANTS OF THE COMPANY..................................................42
Section 2.8 NEGATIVE COVENANTS OF THE COMPANY.....................................................50
ARTICLE III RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION
OF COLLECTIONS THE FOLLOWING PORTION OF THIS ARTICLE III IS
APPLICABLE TO ALL SERIES EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
OTHERWISE IN THE SUPPLEMENT RELATING TO SERIES
2003-1
Section 3.1 ESTABLISHMENT OF COLLECTION ACCOUNT; CERTAIN ALLOCATIONS..............................56
ARTICLE IV ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY
SUPPLEMENT WITH RESPECT TO THE SERIES RELATING THERETO
ARTICLE V THE CERTIFICATES AND INTERESTS
Section 5.1 THE CERTIFICATES......................................................................59
Section 5.2 AUTHENTICATION OF CERTIFICATES........................................................60
Section 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.................................61
Section 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.....................................64
Section 5.5 PERSONS DEEMED OWNERS.................................................................64
Section 5.6 APPOINTMENT OF PAYING AGENT...........................................................65
Section 5.7 ACCESS TO LIST OF INVESTOR CERTIFICATEHOLDERS' NAMES AND ADDRESSES....................66
Section 5.8 AUTHENTICATING AGENT..................................................................67
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Section 5.9 TAX TREATMENT.........................................................................68
Section 5.10 COMPANY EXCHANGES....................................................................69
Section 5.11 BOOK-ENTRY CERTIFICATES..............................................................71
Section 5.12 NOTICES TO CLEARING AGENCY...........................................................72
Section 5.13 DEFINITIVE CERTIFICATES..............................................................72
ARTICLE VI OTHER MATTERS RELATING TO THE COMPANY
Section 6.1 LIABILITY OF THE COMPANY..............................................................73
Section 6.2 LIMITATION ON LIABILITY OF THE COMPANY................................................73
ARTICLE VII EARLY AMORTIZATION EVENTS
Section 7.1 EARLY AMORTIZATION EVENTS.............................................................74
Section 7.2 ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS...............................75
ARTICLE VIII THE TRUSTEE
Section 8.1 DUTIES OF TRUSTEE.....................................................................75
Section 8.2 RIGHTS OF THE TRUSTEE.................................................................78
Section 8.3 TRUSTEE NOT LIABLE FOR RECITALS IN CERTIFICATES.......................................80
Section 8.4 TRUSTEE MAY OWN CERTIFICATES..........................................................80
Section 8.5 TRUSTEE'S FEES AND EXPENSES...........................................................80
Section 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE..................................................81
Section 8.7 RESIGNATION OR REMOVAL OF TRUSTEE.....................................................82
Section 8.8 SUCCESSOR TRUSTEE.....................................................................82
Section 8.9 MERGER OR CONSOLIDATION OF TRUSTEE....................................................83
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE........................................83
Section 8.11 TAX RETURNS..........................................................................85
Section 8.12 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF CERTIFICATES........................85
Section 8.13 SUITS FOR ENFORCEMENT................................................................85
Section 8.14 RIGHTS OF INVESTOR CERTIFICATEHOLDERS TO DIRECT TRUSTEE..............................86
Section 8.15 TRUSTEE TO DIRECT COMPANY............................................................86
Section 8.16 MAINTENANCE OF OFFICE OR AGENCY......................................................87
Section 8.17 LIMITATION OF LIABILITY..............................................................87
ARTICLE IX TERMINATION
Section 9.1 TERMINATION OF TRUST..................................................................87
Section 9.2 CLEAN-UP CALL AND FINAL TERMINATION DATE OF INVESTOR CERTIFICATES OF ANY SERIES.......87
Section 9.3 FINAL PAYMENT WITH RESPECT TO ANY SERIES..............................................88
Section 9.4 COMPANY'S TERMINATION RIGHTS..........................................................89
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ARTICLE X MISCELLANEOUS PROVISIONS
Section 10.1 AMENDMENT............................................................................90
Section 10.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST.....................................92
Section 10.3 LIMITATION ON RIGHTS OF HOLDERS......................................................92
Section 10.4 NOTICES..............................................................................93
Section 10.5 SEVERABILITY OF PROVISIONS...........................................................94
Section 10.6 ASSIGNMENT...........................................................................94
Section 10.7 CERTIFICATES NONASSESSABLE AND FULLY PAID............................................95
Section 10.8 FURTHER ASSURANCES...................................................................95
Section 10.9 NO WAIVER; CUMULATIVE REMEDIES.......................................................95
Section 10.10 COUNTERPARTS........................................................................95
Section 10.11 THIRD-PARTY BENEFICIARIES...........................................................95
Section 10.12 ACTIONS BY HOLDERS..................................................................96
Section 10.13 MERGER AND INTEGRATION..............................................................96
Section 10.14 HEADINGS............................................................................96
Section 10.15 SECURITY AGREEMENT..................................................................96
Section 10.16 NO SET-OFF..........................................................................97
Section 10.17 NO BANKRUPTCY PETITION..............................................................97
Section 10.18 LIMITATION OF LIABILITY.............................................................97
Section 10.19 CERTAIN INFORMATION................................................................101
Section 10.20 GOVERNING LAW......................................................................101
SECTION 10.21 CONSENT TO JURISDICTION............................................................101
SECTION 10.22 WAIVER OF JURY TRIAL...............................................................102
Section 10.23 CURRENCY CONVERSION AND CURRENCY INDEMNITY.........................................102
Section 10.24 CONFIRMATION AND RATIFICATION OF TERMS.............................................103
EXHIBITS
EXHIBIT A FORM OF LOCKBOX AGREEMENT
EXHIBIT B [INTENTIONALLY OMITTED]
EXHIBIT C FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D FORM OF COLLECTION ACCOUNT AGREEMENT
SCHEDULES
1. [Intentionally Omitted]
2. TRUST ACCOUNTS
3. ACTIONS WITH RESPECT TO CHATTEL PAPER
4. LOCATION OF CHIEF EXECUTIVE OFFICE OF THE COMPANY
5. CONTRACTUAL OBLIGATIONS
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6. FINANCING STATEMENT TERMINATIONS
7. ERRONEOUS FILING
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SECOND AMENDED AND RESTATED POOLING AGREEMENT, dated as of March 28,
2003, among USS RECEIVABLES COMPANY, LTD., a Cayman Islands limited liability
company (the "COMPANY"); UNITED STATIONERS FINANCIAL SERVICES LLC, an Illinois
limited liability company ("USFS"), in its capacity as servicer (the
"SERVICER"); and BANK ONE, NA (MAIN OFFICE CHICAGO) ("BANK ONE"), not in its
individual capacity, but solely as trustee (in such capacity, the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company, USFS and JPMorgan Chase Bank (as successor to
The Chase Manhattan Bank, a New York banking corporation) ("CHASE"), have
entered into an Amended and Restated Pooling Agreement, dated as of May 1, 2001
(the "ORIGINAL AGREEMENT");
WHEREAS, effective as of the date hereof, Bank One has been
substituted for Chase as the Trustee;
WHEREAS, the Company, USFS and the Trustee desire to amend and restate
the Original Agreement for the purpose of, among other things, reflecting the
substitution of Bank One for Chase as the Trustee under this Agreement;
WHEREAS, USSC, USFS, and the Servicer have entered into a Second
Amended and Restated Receivables Sale Agreement, dated as of the date hereof (as
amended, supplemented or otherwise modified and in effect from time to time, the
"USSC RECEIVABLES SALE AGREEMENT"), pursuant to which USSC has agreed to sell
and USFS has agreed to purchase, among other things, Receivables and Related
Property;
WHEREAS, USFS, the Company and the Servicer have entered into an
Amended and Restated USFS Receivables Sale Agreement, dated as of the date
hereof (as amended, supplemented or otherwise modified and in effect from time
to time, the "USFS RECEIVABLES SALE AGREEMENT"), pursuant to which USFS has
agreed to sell and the Company has agreed to purchase, among other things, such
Receivables and Related Property;
WHEREAS, the parties hereto wish to enter into this Agreement under
which the Company will continue to transfer all of its right, title and interest
in, to and under the Receivables and other Trust Assets now or hereafter owned
by the Company to the master trust created under the Original Agreement and such
master trust shall, from time to time at the direction of the Company, continue
to issue one or more Series of Investor Certificates which shall represent
interests in the
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Receivables and such other Trust Assets as specified herein and in the
Supplement related to such Series;
WHEREAS, by executing and delivering (i) the Series 2003-1 Supplement,
dated as of the date hereof, among the Company, the Servicer, Bank One, as
Funding Agent (in such capacity, the "FUNDING AGENT"), Trustee, and APA Bank,
and Falcon Asset Securitization Corporation, as Initial Purchaser, or (ii) the
Second Amended and Restated Series 2000-2 Supplement, dated as of the date
hereof, among the Company, the Servicer, Bank One, as Trustee and Market Street
Funding Corporation, as Committed Purchaser, and PNC Bank, National Association,
as Administrator (the "ADMINISTRATOR"), as applicable, the Investor
Certificateholders consent to the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"ACCOUNTS" shall have the meaning specified in Section 2.1 (a)(v) of
this Agreement.
"ADJUSTED INVESTED AMOUNT" shall have, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
"ADMINISTRATOR" shall have the meaning specified in the recitals
hereto.
"AFFILIATE" shall mean, with respect to any specified Person, any
other Person which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person; PROVIDED that a Person shall not
be deemed an Affiliate of another Person solely by reason of an individual
serving as an officer or director of such other Person. For purposes of this
definition, "control" of a Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"AGENT" shall mean, with respect to any Series, the Person or Persons,
if any, so designated in the related Supplement.
"AGGREGATE ADJUSTED INVESTED AMOUNT" shall mean, with respect to any
date of determination, the sum of the Adjusted Invested Amounts with respect to
all Outstanding Series on such date of determination.
"AGGREGATE ALLOCATED RECEIVABLES AMOUNT" shall mean, with respect to
any date of determination, the sum of the Allocated Receivables Amounts with
respect to all Outstanding Series on such date of determination.
"AGGREGATE DAILY COLLECTIONS" shall mean, with respect to any Business
Day, the aggregate amount of all Collections deposited into the Collection
Account on such day.
"AGGREGATE INVESTED AMOUNT" shall mean, at any date of determination,
the sum of the Invested Amounts with respect to all Outstanding Series on such
date of determination.
"AGGREGATE OVERCONCENTRATION AMOUNT" shall mean, with respect to any
date of determination, the sum of the Overconcentration Amounts of all Eligible
Obligors at the end of the preceding Business Day.
"AGGREGATE RECEIVABLES AMOUNT" shall mean, with respect to any date of
determination, the aggregate Principal Amount of all Eligible Receivables in the
Trust at the end of the Business Day immediately preceding such date less the
sum of: (i) the Aggregate Overconcentration Amount; and (ii) the aggregate
Dilution Reduction Amount.
"AGGREGATE TARGET RECEIVABLES AMOUNT" shall mean, with respect to any
date of determination, the sum of the Target Receivables Amounts with respect to
all Outstanding Series on such date of determination.
"AGREEMENT" shall mean this Second Amended and Restated Pooling
Agreement and all amendments and modifications hereof and supplements hereto,
and including, unless expressly stated otherwise, each Supplement.
"ALLOCATED RECEIVABLES AMOUNT" shall mean, with respect to any
Outstanding Series, the meaning assigned to such term in the related Supplement
for such Series.
"AMORTIZATION PERIOD" shall mean, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
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"APPLICANTS" shall have the meaning specified in Section 5.7.
"BANK ONE" has the meaning set forth in the preamble hereto.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code, as
amended from time to time.
"BANKRUPTCY EVENT" means the occurrence of any event of the type
described in Section 7.1(a) with respect to a Person or any of its subsidiaries.
"BOOK-ENTRY CERTIFICATES" shall mean the Certificates issued to a
Clearing Agency to facilitate the use of book entries by such Clearing Agency to
evidence ownership of beneficial interests in the Certificates, transfers of
which beneficial interests shall be made through book entries by such Clearing
Agency, all as described in Section 5.11; PROVIDED, HOWEVER, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer permitted and Definitive Certificates are issued to the Certificate
Book-Entry Holders, such Certificates shall no longer be "Book-Entry
Certificates".
"BUSINESS DAY" shall mean any day other than (i) a Saturday or a
Sunday or (ii) another day on which commercial banking institutions or trust
companies in the States of New York or Illinois or in the city where the
Corporate Trust Office is located, are authorized or obligated by law, executive
order or governmental decree to be closed; PROVIDED that, when used in
connection with the calculation of Certificate Rates which are determined by
reference to LIBOR, "Business Day" shall mean any Business Day on which dealings
in Dollars between banks may be carried on in each of London, England, Chicago,
Illinois and New York, New York.
"BUSINESS DAY RECEIVED" shall have the meaning specified in Section
2.3(e) of the Servicing Agreement.
"CANADIAN OBLIGOR" shall mean an Obligor, which if a natural person,
is a resident of Canada or any of its provinces, or if a corporation or other
legal entity, is organized under the laws of Canada or any political subdivision
thereof or has its chief executive office or principal place of business in
Canada.
"CAPITALIZED LEASE" of a Person shall mean any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" of a Person shall mean the amount of
the obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with GAAP.
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"CASH DILUTION PAYMENT" shall have the meaning specified in Section
4.6(a) of the Servicing Agreement.
"CERTIFICATE" shall mean one of any Series of Investor Certificates.
"CERTIFICATE BOOK-ENTRY HOLDER" shall mean, with respect to a
Book-Entry Certificate, the Person who is listed on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency, as the beneficial owner of such Book-Entry Certificate (directly or as
an indirect participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE RATE" shall mean, with respect to any Series and Class of
Certificates, the percentage interest rate (or formula on the basis of which
such interest rate shall be determined) stated in the applicable Supplement.
"CERTIFICATE REGISTER" shall mean the register maintained pursuant to
Section 5.3, providing for the registration of the Certificates and transfers
and exchanges thereof.
"CERTIFICATEHOLDERS' INTEREST" shall have the meaning specified in
Section 3.1(b).
"CHARGED-OFF RECEIVABLES" shall mean all Receivables (or portions
thereof) which (i) have been identified by the Servicer or the applicable Seller
as uncollectible or (ii) in accordance with the Policies of the applicable
Seller, have or should have been written off as uncollectible, including without
limitation the Receivables of any Obligor which becomes the subject of any
voluntary or involuntary bankruptcy proceeding or any Obligor that is a natural
person and is deceased.
"CLASS" shall mean, with respect to any Series, any one of the classes
of Certificates of that Series as specified in the related Supplement.
"CLEAN-UP CALL PERCENTAGE" shall have, with respect to any Series, the
meaning specified in the related Supplement for such Series.
"CLEAN-UP CALL REPURCHASE PRICE" shall have the meaning specified in
Section 9.2.
"CLEARING AGENCY" shall mean each organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"CLOSING DATE" shall mean March 28, 2003.
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"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
such Clearing Agency.
"COLLECTION ACCOUNT" shall have the meaning specified in Section
3.1(a).
"COLLECTIONS" shall mean all collections and all amounts received in
respect of the Receivables, including Recoveries, Seller Repurchase Payments,
Seller Adjustment Payments, Company Seller Repurchase Payments, Servicer
Indemnification Amounts paid by the Servicer and any other payments received in
respect of Dilution Adjustments, together with all collections received in
respect of the Related Property in the form of cash, checks, wire transfers or
any other form of cash payment, and all proceeds of Receivables and collections
thereof (including, without limitation, collections constituting an account or
general intangible or evidenced by a note, instrument, security, contract,
security agreement, chattel paper or other evidence of indebtedness or security,
whatever is received upon the sale, exchange, collection or other disposition
of, or any indemnity, warranty or guaranty payable in respect of, the foregoing
and all "proceeds", as defined in Section 9-102 of the UCC, of the foregoing).
"COLLECTOR" shall mean any employee employed by the Servicer to
collect payments in respect of Receivables in accordance with the Policies of
the Seller which generated such Receivables.
"COMPANION SERIES" shall have the meaning specified in Section 5.10.
"COMPANY" shall have the meaning set forth in the preamble hereto.
"COMPANY COLLECTION SUBACCOUNT" shall have the meaning specified in
Section 3.1(a).
"COMPANY EXCHANGE" shall have the meaning specified in Section
5.10(a).
"COMPANY INTEREST" shall have the meaning specified in Section 3.1(b).
"COMPANY SELLER REPURCHASE PAYMENT" shall have the meaning specified
in Section 2.6(b) of the USSC Receivables Sale Agreement.
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"CONTINGENT OBLIGATION" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership
unless the underlying obligation is expressly made non-recourse to such general
partner; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the lesser of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Contingent Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of the Contingent Obligation shall be
such guaranteeing person's reasonably anticipated liability in respect thereof
as determined by such Person in good faith.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"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 this Agreement is
located at Suite IL1-0596, 1-21, 1 Bank One Plaza, Chicago, Illinois 60670
(Attention: Asset Backed Finance).
"CREDIT AGREEMENT" shall mean that certain Five-Year Revolving Credit
Agreement, dated as of March 21, 2003, among USSC, as borrower, USI, as a credit
party, the lenders from time to time party thereto and Bank One as
administrative agent, as in effect on the date hereof, and without regard to any
amendment, modification or waiver of any term or condition thereof (except, so
long as the Trustee is Bank One, to the extent that the Trustee has consented in
writing to such amendment, modification or waiver) or termination thereof. In
the event that the Credit Agreement shall terminate or be replaced, references
in the Pooling and Servicing Agreements to the "Credit Agreement" shall continue
to refer to the
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aforesaid Credit Agreement in the form last in effect prior to its termination
or replacement.
"DEFAULTED RECEIVABLE" shall mean, as of any date of determination,
any Receivable, without duplication, (a) that is unpaid in whole or in part for
more than 60 days after its original due date or (b) which is, as of such date
of determination, a Charged-Off Receivable, or (c) which is, as of such date of
determination, a Disputed Receivable.
"DEFINITIVE CERTIFICATES" shall have the meaning specified in Section
5.11.
"DEPOSITORY" shall mean, with respect to any Series, the Clearing
Agency designated as the "Depository" in the related Supplement.
"DEPOSITORY AGREEMENT" shall mean, with respect to any Series, an
agreement among the Company, the Trustee and a Clearing Agency, or a letter of
undertaking by the Company and the Trustee, in each case in a form reasonably
satisfactory to the Trustee and the Company.
"DESIGNATED OBLIGOR" shall mean an Obligor designated in good faith by
the Trustee to the Company in writing, notice of which shall have been delivered
five Business Days prior to the effectiveness of such designation.
"DILUTION ADJUSTMENTS" shall mean any rebates, discounts, refunds,
payments or other adjustments (including, without limitation, as a result of the
application of any special or other discounts or any reconciliations) in respect
of any Receivable, the amount owing for any returns (including, without
limitation, as a result of the return of any defective goods) or cancellations
and the amount of any other reduction of any payment under any Receivable, in
each case granted or made by the applicable Seller or the Servicer to the
related Obligor, or any reduction or cancellation of any payment under any
Receivable as a result of a setoff in respect of any claim by the related
Obligor (whether such claim arises out of the same or a related transaction or
an unrelated transaction), PROVIDED that a "DILUTION ADJUSTMENT" does not
include any Charged-Off Receivable or any refund in either adjustment of any
Excluded Receivable.
"DILUTION REDUCTION AMOUNT" shall mean the sum of (i) the product of
(x) 1.25 multiplied by (y) the VCD rebates applicable to any Receivable, (ii)
the EFT rebates applicable to any Receivable, (iii) the load rebates applicable
to any Receivable and (iv) other rebates applicable to any Receivable.
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"DISPUTED RECEIVABLE" shall mean as of any Settlement Report Date, the
Receivables shown as such on the Seller's books and records (and that are not
otherwise Defaulted Receivables).
"DISQUALIFIED STOCK" means any preferred or other capital stock that,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is ninety-one (91) days after the Facility Termination Date (as
such term is defined in the Credit Agreement).
"DISTRIBUTION DATE" shall mean, except as otherwise set forth in the
applicable Supplement, the 20th day of each calendar month, beginning on April
20, 2003 or if such 20th day is not a Business Day, the next succeeding Business
Day.
"DOLLARS," "U.S. DOLLARS", "U.S. $" and "$" shall mean dollars in
lawful currency of the United States of America.
"EARLY AMORTIZATION EVENT" shall have, with respect to any Series, the
meaning specified in Section 7.1 of this Agreement (without taking into account
any Supplements) and in any Supplement for such Series.
"EARLY AMORTIZATION PERIOD" shall have, with respect to any Series,
the definition assigned to such term in Section 7.1 of this Agreement and in any
Supplement for such Series.
"EARLY TERMINATION" shall have the meaning assigned to such term in
the Receivables Sale Agreements.
"ELIGIBLE INSTITUTION" shall mean a depositary institution or trust
company (which may include the Trustee and its affiliates) organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia; PROVIDED, HOWEVER, that at all times (i) such depositary
institution or trust company is a member of the Federal Deposit Insurance
Corporation, the certificates of deposit or unsecured and uncollateralized debt
obligations of such depositary institution or trust company are rated in one of
the two highest long-term or highest short-term rating category by each Rating
Agency and (ii) such depositary institution or trust company has a combined
capital and surplus of at least $100,000,000.
"ELIGIBLE INVESTMENT" means any one or more of the following
obligations or securities, all of which shall be denominated in United States
dollars:
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(a) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America or any
agency or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of America;
(b) demand and time deposits in, certificates of deposit of, banker's
acceptances issued by, or federal funds sold by any depository institution or
trust company (including the Trustee) incorporated under the laws of the United
States of America or any State and subject to supervision and examination by
Federal and/or State banking authorities, so long as at the time of such
investment or contractual commitment providing for such investment, the
short-term, unsecured debt obligations of such depository institution or trust
company have credit ratings from S&P at least equal to A-1 and from Moody's at
least equal to P-1; provided that any such demand and time deposits shall be
fully insured by the Federal Deposit Insurance Corporation;
(c) repurchase obligations with a term not to exceed 30 days and with
respect to (i) any security described in clause (a) above or (ii) any other
security issued or guaranteed as to timely payment of principal and interest by
an agency or instrumentality of the United States of America, in either case
entered into with any depository institution or trust company (including the
Agent), acting as principal, described in clause (b) above;
(d) commercial paper rated at the time of the investment or
contractual commitment to invest therein, in the highest rating category by each
of S&P and Moody's; and
(e) investments in money market funds or money market mutual funds
registered under the Investment Company Act of 1940, as amended, whose shares
are registered under the Securities Act of 1933, having a rating from S&P and
Moody's in the highest investment category granted thereby, including funds for
which the Trustee any of its Affiliates is investment manager or advisor.
"ELIGIBLE OBLIGOR" shall mean, as of any date of determination, each
Obligor in respect of a Receivable that satisfies the following eligibility
criteria:
(a) it is a resident of the United States (or, from and
after the delivery of the notice referred to in the definition of "Excluded
Receivable," Canada), its territories or possessions or incorporated or
organized under the laws of the United States or any state in the United States
(or, from and after delivery of the notice referred to in the definition of
"Excluded Receivable," Canada or any province of Canada);
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(b) it is not (i) the United States federal government, or
any subdivision thereof, or any agency, department or instrumentality thereof,
or (ii) a state or local government, or any subdivision thereof, or any agency,
department, or instrumentality thereof;
(c) it is not a Seller or an Affiliate of a Seller;
(d) it is not the subject of any voluntary or involuntary
bankruptcy proceeding;
(e) is not a Designated Obligor; and
(f) is not an Obligor of Defaulted Receivables having an
aggregate Outstanding Principal Amount in excess of 25% of the aggregate
outstanding Principal Amount of all Receivables of such Obligor.
"ELIGIBLE RECEIVABLE" shall mean, as of any date of determination,
each Receivable owing by an Eligible Obligor that as of such date satisfies the
following eligibility criteria:
(a) it, together with any contract, instrument and/or
agreement related thereto, is a freely assignable obligation that constitutes
either (i) an "account" within the meaning of Section 9-102 of the UCC of the
State the law of which governs the perfection of the interest granted in it or
(ii) "chattel paper" within the meaning of Section 9-102 of such UCC, subject,
in the case of chattel paper, to compliance with the procedures set forth in
Schedule 3 hereto;
(b) it is not a Defaulted Receivable;
(c) the goods related to it shall have been shipped or the
services related to it shall have been performed and such Receivable shall have
been billed to the related Obligor;
(d) it is denominated and payable only in U.S. Dollars in
the United States (or, from and after delivery of the notice referred to in the
definition of "Excluded Receivable," Canadian Dollars or U.S. Dollars in
Canada);
(e) it arose in the ordinary course of business from the
sale of goods, products or services of the relevant Seller and in accordance
with the Policies of such Seller and, at such date of determination, no Early
Termination has occurred with respect to such Seller,
(f) (i) it, together with any contract, instrument and/or
agreement related thereto, does not contravene any applicable law, rule or
regulation
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and the applicable Seller (nor any of its transferees) is not in violation of
any law, rule or regulation in connection with it, in each case which in any way
renders such Receivable unenforceable or would otherwise impair in any material
respect the collectibility of such Receivable and (ii) it is not subject to any
investigation or proceeding known by such Seller, the Company or the Servicer
that would reasonably be expected to adversely affect the payment or
enforceability thereof;
(g) if the Company or the Trust is not excluded from the
definition of "investment company" pursuant to Rule 3a-7 under the 1940 Act, it
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
1940 Act;
(h) it is not a Receivable purchased by a Seller from any
Person;
(i) it is not a Receivable for which the applicable Seller
(or any of its transferees) has established an offsetting specific reserve;
PROVIDED that a Receivable subject only in part to the foregoing shall be an
Eligible Receivable to the extent not so subject;
(j) it is not a Receivable with original payment terms in
excess of 51 days from its original invoice date, or in respect of which the
applicable Seller, any of its transferees or the Servicer has (i) altered the
basis of the aging from the initial due date for payment such that the final due
date extends to a date more than 60 days from its original invoice date or (ii)
otherwise made any modification except, in the case of each of the foregoing, in
the ordinary course of business and consistent with the Policies of such Seller;
PROVIDED, that a Receivable with original payment terms in excess of 51 but less
than 120 days from its original invoice date that is otherwise an "ELIGIBLE
RECEIVABLE" but for this clause (j) (a "PERMITTED EXTENDED RECEIVABLE") shall be
an Eligible Receivable notwithstanding this clause (j), if the inclusion of such
Permitted Extended Receivable does not cause the aggregate outstanding Principal
Amount of all Eligible Receivables that are Permitted Extended Receivables to
exceed an amount equal to 2% of the aggregate outstanding Principal Amount of
all Receivables.
(k) all required consents, approvals or authorizations on
the part of the applicable Seller (and any of its transferees) necessary for the
creation and enforceability of such Receivable and the effective assignment and
sale thereof by the applicable Seller to USFS, and by USFS to the Company and by
the Company to the Trust shall have been obtained with respect to such
Receivable;
(l) [Intentionally Omitted];
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(m) all right, title and interest in it has been validly
sold to USFS by the applicable Seller pursuant to the USSC Receivables Sale
Agreement and to the Company by USFS pursuant to the USFS Receivables Sale
Agreement;
(n) the Company or the Trust will have legal and beneficial
ownership therein free and clear of all Liens and such Receivable has been the
subject of either a valid transfer from the Company to the Trust or,
alternatively, the grant of a first priority perfected security interest therein
to the Trust free and clear of all Liens;
(o) it is not subject to any dispute in whole or in part or
to any offset, counterclaim, defense, rescission, recoupment or subordination;
PROVIDED that a Receivable subject only in part to any of the foregoing shall be
an Eligible Receivable to the extent not so subject;
(p) it, together with any contract, instrument and/or
agreement related thereto, is at all times the legal, valid and binding
obligation of the Obligor thereon, enforceable against such Obligor to pay the
full Principal Amount thereof (and any accrued interest thereon) in accordance
with its terms;
(q) as of the related Receivables Purchase Date, none of the
Company, USFS or the applicable Seller has (i) taken any action that would
impair the rights of the Trustee or the Investor Certificateholders therein or
(ii) failed to take any action that was necessary to avoid impairing the rights
therein of the Trustee or Investor Certificateholders;
(r) each of the representations and warranties made in the
USSC Receivables Sale Agreement by the applicable Seller and in the USFS
Receivables Sale Agreement by USFS with respect to such Receivable is true and
correct in all material respects;
(s) at the time such Receivable was sold by the applicable
Seller under the USSC Receivables Sale Agreement and by USFS to the Company
under the USFS Receivables Sale Agreement, no event described in Section 6.1(g)
of each such Receivables Sale Agreement (without giving effect to any
requirement as to the passage of time) had occurred with respect to such Seller
or USFS, as applicable; and
(t) from and after delivery of the notice referred to in the
definition of "Excluded Receivable," the inclusion of such Receivable as an
Eligible Receivable does not cause the aggregate outstanding Principal Amount of
all Eligible Receivables the obligor of which is a Canadian Obligor to exceed an
amount equal to 5% of the aggregate outstanding Principal Amount of all
Receivables.
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"ELIGIBLE SUCCESSOR SERVICER" shall mean a Person which, at the time
of its appointment as Servicer, (i) is legally qualified and has the corporate
power and authority to service the Receivables transferred to the Trust, (ii)
has demonstrated the ability to service a portfolio of similar receivables in
accordance with the standards set forth in Section 6.2(c) of the Servicing
Agreement and (iii) has a combined capital and surplus of at least $5,000,000.
"ENHANCEMENT" shall mean, with respect to any Series, (i) the funds on
deposit in or credited to any bank account (or subaccount thereof) of the Trust,
(ii) any surety arrangement, any letter of credit, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap,
currency swap or other contract, agreement or arrangement, in each case for the
benefit of any Holders of such Series, as designated in the applicable
Supplement and (iii) the subordination of one Class of Certificates in a Series
to another class in such Series or the subordination of any Certificate held or
interest owned by the Company to the Investor Certificates of such Series.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"EXCHANGEABLE COMPANY INTEREST" shall have the meaning specified in
Section 3.1(b) and shall be exchangeable as provided in Section 5.10.
"EXCHANGE DATE" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10.
"EXCHANGE NOTICE" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10.
"EXCLUDED OBLIGOR" shall mean any Obligor designated from time to time
by the Company to the Trustee in writing.
"EXCLUDED RECEIVABLE" means any Receivable which (A) arises from any
Seller's advertising business which is indicated as such on the applicable
Seller's receivables aging books and records; (B) is owed by a Person who is not
a resident of organized under the laws of, or whose chief executive office or
principal place of business is not located in, the United States, its
territories or possessions and/or a payment obligation of a Person that is not
denominated and payable in U.S. Dollars in the United States; (C) is owed by a
Governmental Authority; (D) is owed by a Person who prior to the time such
Receivable arises, has been designated as an Excluded Obligor; or (E) except as
permitted by Section 2.8(k) in connection with the enforcement or collection of
a Defaulted Receivable, the payment for which is evidenced or required to be
evidenced by a note or other promissory instrument;
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PROVIDED that in the event any Excluded Receivable is included in a Required
Report, for the purposes of Section 2.01 of the Receivables Sale Agreements and
Section 2.1 hereof and the definition of "Collections", such receivable shall
not be an Excluded Receivable, provided, further that, from and after the date
that the Company delivers written notice to the Trustee that it desires to
transfer to the Trust Receivables owed by a Person who is a resident of or
organized under the laws of, or whose chief executive office or principal place
of business is located in, Canada or Receivables that are denominated and
payable in Canadian Dollars or U.S. Dollars in Canada, such receivable shall not
be an Excluded Receivable merely by virtue of the foregoing clause (B).
"EXISTING COMPANION SERIES" shall have the meaning specified in
Section 5.10.
"FITCH" shall mean Fitch, Inc.
"FRACTIONAL UNDIVIDED INTEREST" shall mean the fractional undivided
interest in the Certificateholders' Interest evidenced by an Investor
Certificate.
"FUNDING AGENT" shall have the meaning specified in the recitals
hereto.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time as set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board and the rules and regulations of the
SEC, or such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"GENERAL OPINION" shall mean, with respect to any action, an Opinion
of Counsel, which shall not be at the expense of the Trustee, to the effect that
(A) such action has been duly authorized by all necessary action on the part of
the Servicer, the Support Provider, the applicable Seller or Sellers or the
Company, as the case may be, (B) any agreement executed in connection with such
action constitutes a legal, valid and binding obligation of the Servicer, the
Support Provider, the applicable Seller or Sellers or the Company, as the case
may be, enforceable in accordance with the terms thereof, except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereinafter
in effect, affecting the enforcement of creditors' rights and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity)
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and (C) any condition precedent to any such action specified in the applicable
agreement, if any, has been complied with, which opinion in the case of this
clause (C) may, to the extent that such opinion concerns questions of fact, rely
on an Officer's Certificate with respect to such questions of fact.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any central bank.
"HOLDERS" shall mean the collective reference to (i) the Persons in
whose names the Certificates are registered in the Certificate Register, (ii)
the owner of the Exchangeable Company Interest and (iii) if applicable, the
owner of each Series Subordinated Interest.
"INTERCREDITOR AGREEMENT" shall mean an intercreditor agreement, by
and among, the Company, the Servicer, USSC, the Trustee and Bank One, as
administrative agent under the Credit Agreement, in form and substance
satisfactory to the Trustee, as amended, restated, supplemented or otherwise
modified from time to time.
"INDEBTEDNESS" of a Person means, at any time, without duplication,
such Person's (i) obligations for borrowed money which in accordance with GAAP
would be shown as a liability on the consolidated balance sheet of such Person,
(ii) obligations representing the deferred purchase price of property or
services (other than current accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade and accrued
expenses in connection with the provision of services incurred in the ordinary
course of such Person's business), (iii) Indebtedness of others, 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 (PROVIDED that the
amount of any such Indebtedness at any time shall be deemed to be the lesser of
(a) such Indebtedness at such time and (b) the fair market value of such
property, as determined by such Person in good faith at such time), (iv)
financial obligations which are evidenced by notes, bonds, debentures,
acceptances, or other instruments, (v) obligations to purchase securities or
other property arising out of or in connection with the sale of the same or
substantially similar securities or property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations of such Person in respect of any
Indebtedness, (viii) reimbursement obligations under letters of credit, bankers'
acceptances, surety bonds and similar instruments, (ix) Off-Balance Sheet
Liabilities, (x) Net Mark-to-Market Exposure under Rate Management Transactions
and (xi) Disqualified Stock.
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"INDEPENDENT PUBLIC ACCOUNTANTS" means any independent certified
public accountants of nationally recognized standing (or any successor thereto);
PROVIDED that such firm is independent with respect to the Servicer within the
meaning of Rule 2-01(b) of Regulation S-X under the Securities Act.
"INELIGIBLE RECEIVABLE" shall have the meaning specified in Section
2.5(a).
"INITIAL CLOSING DATE" shall mean April 3, 1998.
"INITIAL INVESTED AMOUNT" shall mean, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986.
"INVESTED AMOUNT" shall mean, with respect to any Outstanding Series,
the meaning assigned to such term in the related Supplement for such Series.
"INVESTED PERCENTAGE" shall mean, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
"INVESTOR CERTIFICATEHOLDER" shall mean the holder of record of, or
the bearer of, an Investor Certificate.
"INVESTOR CERTIFICATES" shall mean the Certificates executed by the
Company and authenticated by or on behalf of the Trustee, substantially in the
form attached to the applicable Supplement, but shall not include any
Certificate held by the Company.
"ISSUANCE DATE" shall mean, with respect to any Series, the date of
issuance of such Series, or the date of any increase to the Invested Amount of
such Series, as specified in the related Supplement.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset (including, without limitation, any lien which may arise under relevant
state or federal law, if any), (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement
relating to such asset and (c) in the case of securities, any purchase option,
call or other similar right of a third party with respect to such securities;
PROVIDED, HOWEVER, that if a lien is imposed under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA for a failure to make a
required installment or other payment to a plan to which Section
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412(n) of the Internal Revenue Code or Section 302(f) of ERISA applies, then
such lien shall not be treated as a "Lien" from and after the time any Person
who is obligated to make such payment pays to such plan the amount of such lien
determined under Section 412(n)(3) of the Internal Revenue Code or Section
302(f)(3) of ERISA, as the case may be, and provides to the Trustee, any Agent
and each Rating Agency written evidence reasonably satisfactory to the Rating
Agencies of the release of such lien, or such lien expires pursuant to Section
412(n)(4)(B) of the Internal Revenue Code or Section 302(f)(4)(B) of ERISA.
"LOCKBOX" shall mean the post office boxes listed on Schedule III to
the USSC Receivables Sale Agreement to which the Obligors are instructed to
remit payments on the Receivables and/or such other post office boxes as may be
established pursuant to Section 2.3 of the Servicing Agreement, PROVIDED that
from and after May 30, 2003, lockbox number 92515 maintained with The Northern
Trust Company shall not be deemed to be a Lockbox for purposes of the
Transaction Documents.
"LOCKBOX ACCOUNT" shall mean the intervening account used by a Lockbox
Processor for deposit of funds received in a Lockbox prior to their transfer to
the Collection Account.
"LOCKBOX AGREEMENT" shall mean, (A) with respect to each Lockbox
Processor, a lockbox agreement (i) substantially in the forms set forth as
Exhibit A hereto, (ii) or in such form as the lockbox processor party thereto
employs in the ordinary course of its business for transactions of a type
similar to the one contemplated by this Agreement and which is approved by the
Trustee and (B) with respect to the Collection Account and the Securities
Account, a control agreement among the Company, the Trustee and the financial
institution where the Collection Account or Securities Account, as applicable,
is maintained, in form and substance satisfactory to the Trustee.
"LOCKBOX PROCESSOR" shall mean the depositary institution or
processing company (which may be the Trustee) which processes payments on the
Receivables sent by the Obligors thereon forwarded to a Lockbox.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the financial condition or operations of USSC and its subsidiaries taken as a
whole, (b) the financial condition or operations of the Company or the Trust,
(c) the ability of any Seller, the Support Provider, USFS, the Servicer or the
Company, as the case may be, to perform its obligations under the Transaction
Documents, (d) the legality, validity or enforceability of any of the
Transaction Documents, (e) the collectibility of the Receivables taken as a
whole or in any material portion of the Receivables or (f) the interests, rights
or remedies of the Trustee or the Investor Certificateholders
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under or with respect to the Transaction Documents or the Receivables taken as a
whole or in any significant portion of the Receivables.
"MONTHLY SERVICING FEE" shall have the meaning specified in Section
2.5(a) of the Servicing Agreement.
"MONTHLY SETTLEMENT STATEMENT" shall have the meaning specified in
Section 4.2 of the Servicing Agreement.
"MOODY'S" shall mean Moody's Investors Service, Inc.
NET MARK-TO- MARKET EXPOSURE" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"NEW SERIES" shall have the meaning specified in Section 5.10.
"1940 ACT" shall mean the Investment Company Act of 1940, as amended.
"OBLIGOR" shall mean, with respect to any Receivable, the party
obligated to make payments with respect to such Receivable, including any
guarantor thereof.
"OFF-BALANCE SHEET LIABILITY" of a Person means, without duplication,
the principal component of (i) any Receivables Purchase Facility or any other
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person (other than the sale or disposition in the
ordinary course of business of accounts or notes receivable in connection with
the compromise or collection thereof consistent with customary industry practice
(and not as part of any bulk sale or financing of receivables)) or (ii) any
liability under any so-called "synthetic lease" or "tax ownership operating
lease" transaction entered into by such Person; provided that "Off-Balance Sheet
Liabilities" shall not include the principal component of the foregoing if such
principal component (a) is otherwise reflected as a liability on such Person's
consolidated balance sheet or (b) is deducted from revenues in determining such
Person's consolidated net income but is not thereafter added back in calculating
such Person's Consolidated EBITDA.
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"OFFICER'S CERTIFICATE" shall mean, unless otherwise specified in this
Agreement, a certificate signed by the Chairman of the Board, Vice Chairman of
the Board, President, Chief Financial Officer, any Vice President, any Secretary
or any Treasurer of the Servicer, the Support Provider or the Company, as the
case may be, or, in the case of a Successor Servicer, a certificate signed by a
Vice President and the financial controller (or an officer holding an office
with equivalent or more senior responsibilities) of such Successor Servicer.
"OPINION OF COUNSEL" shall mean a written opinion or opinions of one
or more counsel (who may be internal counsel) to the Company, Support Provider
or the Servicer, designated by the Company, Support Provider or the Servicer, as
the case may be, which is reasonably acceptable to the Trustee.
"OPTIONAL TERMINATION NOTICE" shall have, with respect to any Series,
the meaning specified in the related Supplement for such Series.
"OUTSTANDING SERIES" shall mean, at any time, a Series issued pursuant
to an effective Supplement for which the Series Termination Date for such Series
has not occurred.
"OVERCONCENTRATION AMOUNT" shall mean, at any date with respect to an
Eligible Obligor, the Principal Amount of Eligible Receivables due from such
Obligor at such date which, expressed as a percentage of the Principal Amount of
all Eligible Receivables in the Trust at such date, exceeds 3.3%; PROVIDED,
HOWEVER, that all Eligible Obligors that are Affiliates of each other shall be
deemed to be a single Eligible Obligor to the extent the Servicer knows or has
reason to know of the affiliation; PROVIDED, FURTHER, that a higher
concentration percentage for any Obligor may be established from time to time as
may be agreed by the Company, the Trustee and the Agents, except that the
Trustee may cancel any such higher concentration percentage upon not less than
three Business Days' Notice to Seller.
"PAYING AGENT" shall mean any paying agent and co-paying agent
appointed pursuant to Section 5.6 and, unless otherwise specified in the related
Supplement of any Outstanding Series and with respect to such Series, shall
initially be the Trustee.
"PERSON" shall mean any individual, partnership, limited liability
company, corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"POLICIES" shall mean, with respect to each Seller, the credit and
collection policies of such Seller, copies of which have been delivered to the
Trustee,
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as the same may be amended, supplemented or otherwise modified from time to time
in accordance with the Transaction Documents.
"POOLING AND SERVICING AGREEMENTS" shall mean, collectively, this
Agreement, the Servicing Agreement and each Supplement for an Outstanding
Series.
"POTENTIAL EARLY AMORTIZATION EVENT" shall mean an event which, with
the giving of notice and/or the lapse of time, would constitute an Early
Amortization Event hereunder or under any Supplement.
"POTENTIAL SERVICER DEFAULT" shall mean an event which, with the
giving of notice and/or the lapse of time, would constitute a Servicer Default
hereunder or under any Supplement.
"PREPAYMENT REQUEST" shall have, with respect to any Series, the
meaning specified in the related Supplement.
"PRINCIPAL AMOUNT" shall mean, with respect to any Receivable, the
amount due thereunder.
"PRINCIPAL TERMS" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, specified in Section 5.10(c).
"RATE MANAGEMENT TRANSACTION" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by the
USI, USSC or a Subsidiary which is a rate swap, basis swap, forward rate
transaction, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices or equity prices.
"RATING AGENCY" shall mean, with respect to each Outstanding Series,
any rating agency or agencies designated as such in the related Supplement;
PROVIDED that in the event that no Outstanding Series has been rated, then for
purposes of the definition of "ELIGIBLE INSTITUTION" "Rating Agency" shall mean
S&P and references to "each Rating Agency" shall refer solely to S&P.
"RATING AGENCY CONDITION" shall mean, subject to the applicable
Supplement, with respect to any action, that each Rating Agency shall have
notified the Company, the Servicer, any Agent and the Trustee in writing that
such action will not result in a reduction or withdrawal of the rating of any
Outstanding Series or
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any Class of any such Outstanding Series with respect to which it is a Rating
Agency.
"RECEIVABLE" shall mean the indebtedness and payment obligations of
any Person to a Seller (including, without limitation, obligations constituting
an account or general intangible or evidenced by a note, instrument, contract,
security agreement, chattel paper or other evidence of indebtedness or security)
arising from a sale of products or the provision of service by such Seller,
including, without limitation, any right to payment for goods sold or for
services rendered, and including the right to payment of any interest, sales
taxes, finance charges, returned check or late charges and other obligations of
such Person with respect thereto; PROVIDED that, except as otherwise expressly
provided, for all purposes hereunder "Receivables" shall not include Excluded
Receivables.
"RECEIVABLES PURCHASE DATE" shall mean, with respect to any
Receivable, the Business Day on which (i) USFS purchases such Receivable from
the applicable Seller and (ii) the Company purchases such Receivable from USFS
and transfers such Receivable to the Trust.
"RECEIVABLES PURCHASE FACILITY" means any securitization facility made
available to USI, USSC or any of its Subsidiaries, pursuant to which receivables
of USI, USSC or any of its Subsidiaries are transferred, directly or indirectly,
to one or more special purpose entities established for the purpose of
purchasing receivables in connection with such securitization, and thereafter
transferred to certain investors, pursuant to the terms and conditions of any
series of receivables purchase or sale agreements, servicing agreement and other
related agreements generally consistent with the terms contained in comparable
structured finance transactions pursuant to which USI, USSC or any of its
Subsidiaries sell or transfer to special purpose entities their interests in
certain receivables for securitization.
"RECEIVABLES SALE AGREEMENTS" shall mean the USSC Receivables Sale
Agreement and the USFS Receivables Sale Agreement.
"RECORD DATE" shall mean, with respect to any Series, the date
specified as such in the applicable Supplement.
"RECOVERIES" shall mean all amounts collected (net of out-of-pocket
costs of collection) in respect of Charged-Off Receivables.
"REINVESTMENT AMOUNT" shall mean, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
"RELATED PROPERTY" shall mean, with respect to each Receivable:
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(a) all of the applicable Seller's interest in the inventory
and goods (including returned or repossessed inventory or goods), if any,
relating to the sale which gave rise to such Receivable;
(b) all other security interests or Liens, and the
applicable Seller's interest in the property subject thereto, from time to time
purporting to secure payment of such Receivable, together with all financing
statements signed by an Obligor describing any collateral securing such
Receivable; and
(c) all guarantees, insurance, letters of credit, supporting
obligations (within the meaning of the UCC) and other agreements or arrangements
of whatever character from time to time supporting or securing payment of such
Receivable;
(d) all contracts and agreements associated with such
Receivable and all books, records and software related to such Receivable;
in the case of clauses (b) and (c), without limitation, whether pursuant to the
contract related to such Receivable or otherwise or pursuant to any obligations
evidenced by a note, instrument, contract, security agreement, chattel paper or
other evidence of indebtedness or security and the proceeds thereof.
"REPORTED PERIOD" shall have the meaning specified in Section 4.1 of
the Servicing Agreement.
"REQUIRED REPORT" shall have the meaning specified in Section 4.1 of
the Servicing Agreement.
"REQUIREMENT OF LAW" for any Person shall mean the certificate or
articles 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 a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"RESIGNATION NOTICE" shall have the meaning specified in Section 6.2
of the Servicing Agreement.
"RESPONSIBLE OFFICER" shall mean (i) when used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee including
any Vice President, any Assistant Vice President, Trust Officer or Assistant
Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and, in each case, having direct responsibility for the administration of this
Agreement and (ii) when used with
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respect to any other Person, the Chairman of the Board, President, Chief
Financial Officer, any Vice President, Treasurer, Assistant Treasurer, Secretary
or Assistant Secretary of such Person.
"REVOLVING PERIOD" shall mean, with respect to any Outstanding Series,
the meaning assigned to such term in the related Supplement for such Series.
"S&P" shall mean Standard & Poor's Ratings Services, or any successor
thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" shall have the meaning specified in Section
3.1(c)(ii).
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACCOUNT" shall have meaning set forth in Section 3.1(c).
"SELLERS" shall mean (i) USSC in its capacity as Seller under the USSC
Receivables Sale Agreement and any directly or indirectly wholly-owned
subsidiary of USI which has been added as a Seller in accordance with the
provisions of the USSC Receivables Sale Agreement and the other Transaction
Documents (but, in each case, excluding any such Subsidiaries which have been
terminated as Sellers in accordance with the provisions thereof and of the other
Transaction Documents), and (ii) USFS in its capacity as Seller under the USFS
Receivables Sale Agreement and any directly or indirectly wholly-owned
subsidiary of USI which has been added as a Seller in accordance with the
provisions of the USFS Receivables Sale Agreement and the other Transaction
Documents (but, in each case, excluding any such Subsidiaries which have been
terminated as Sellers in accordance with the provisions thereof and of the other
Transaction Documents), all of the foregoing in their capacities as Sellers
under such Receivables Sale Agreements; each, individually, a "SELLER".
"SELLER ADJUSTMENT PAYMENTS" shall have the meaning specified in
Section 2.05 of the Receivables Sale Agreements.
"SELLER REPURCHASE PAYMENTS" shall have the meaning specified in
Section 2.06 of the Receivables Sale Agreements.
"SERIES" shall mean any series of Investor Certificates, the terms of
which are set forth in a Supplement.
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"SERIES ACCOUNT" shall mean any deposit, trust, escrow, securities,
reserve or similar account maintained for the benefit of the Investor
Certificateholders of any Series or Class, as specified in any Supplement.
"SERIES SUBORDINATED INTEREST" shall mean, with respect to any Series,
the undivided retained interest of the Company in the Trust Assets, if any,
which is subordinated to the Certificateholders' Interest of such Series, as set
forth in the Supplement for such Series.
"SERIES TERMINATION DATE" shall mean, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement for such
Series.
"SERVICE TRANSFER" shall have the meaning specified in Section 6.1 of
the Servicing Agreement.
"SERVICER" shall initially mean United Stationers Financial Services
LLC in its capacity as Servicer under the Transaction Documents and, after any
Service Transfer, the Successor Servicer.
"SERVICER DEFAULT" shall have, with respect to any Series, the meaning
specified in Section 6.1 of the Servicing Agreement and, if applicable, as
supplemented by the related Supplement for such Series.
"SERVICER INDEMNIFICATION AMOUNT" shall have the meaning specified in
Section 5.2(c) of the Servicing Agreement.
"SERVICING AGREEMENT" shall mean that certain Second Amended and
Restated Servicing Agreement, dated as of March 28, 2003, by and among the
Company, United Stationers Supply Co., as Support Provider and the Trustee, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"SERVICING FEE" shall have the meaning specified in Section 2.5(a) of
the Servicing Agreement.
"SERVICING FEE PERCENTAGE" shall mean 1% per annum.
"SETTLEMENT PERIOD" shall mean commencing with May 2001, each calendar
month.
"SETTLEMENT REPORT DATE" shall mean, except as otherwise set forth in
the applicable Supplement, the 17th day of each calendar month (or if such 17th
day is not a Business Day, the next succeeding Business Day).
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"SPECIFIED BANKRUPTCY OPINION PROVISIONS" shall mean the factual
assumptions and the actions to be taken by any Seller, USFS or the Company, in
each case as specified in the legal opinion of Weil, Gotshal & Manges LLP
relating to certain bankruptcy matters and delivered on the Closing Date.
"SUBORDINATED NOTE" shall have the meaning specified in Section 8.01
of the USFS Receivables Sale Agreement.
"SUBSIDIARY" shall mean, as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests having by
the terms thereof ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time directly or
indirectly owned, or the management of which is otherwise controlled, through
one or more intermediaries, or both, by such Person.
"SUCCESSOR SERVICER" shall have the meaning specified in Section 6.2
of the Servicing Agreement.
"SUPPLEMENT" shall mean, with respect to any Series, a supplement to
this Agreement complying with the terms of Section 5.10(c), executed in
conjunction with the issuance of any Series.
"SUPPORT PROVIDER" shall have the meaning set forth in the Servicing
Agreement.
"TARGET RECEIVABLES AMOUNT" shall mean, with respect to any
Outstanding Series, the meaning assigned to such term in the related Supplement
for such Series.
"TARGETED HOLDER" shall have the meaning specified in Section 5.3(e).
"TARGETED INVESTOR CERTIFICATE" shall have the meaning specified in
Section 5.3(d).
"TAX OPINION" shall mean, with respect to any action, an Opinion of
Counsel, which shall not be at the expense of the Trustee, to the effect that,
for federal income tax purposes, (1) such action will not adversely affect the
characterization as debt or as debt or an interest in a partnership (other than
a partnership taxable as a corporation), as the case may be, of any Investor
Certificates of any Outstanding Series or Class not retained by the Company,
(ii) following such action, the Trust will not be classified as an association
or a publicly traded
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partnership taxable as a corporation, (iii) such action will not cause or
constitute a taxable event in which gain or loss would be recognized by any
Investor Certificateholder or the Trust and (iv) in the case of Section 5.9, the
Investor Certificates of the new Series which are not retained by the Company
will be characterized as debt or as an interest in a partnership (other than a
partnership taxable as a corporation).
"TERMINATION NOTICE" shall have the meaning specified in Section 6.1
of the Servicing Agreement.
"TRANSACTION DOCUMENTS" shall mean the collective reference to this
Agreement, the Servicing Agreement, each Supplement with respect to any
Outstanding Series, the Receivables Sale Agreements, the Lockbox Agreements, the
Intercreditor Agreement, the Certificates and any other documents delivered
pursuant to or in connection therewith.
"TRANSFER AGENT AND REGISTRAR" shall have the meaning specified in
Section 5.3 and shall initially be the Trustee.
"TRANSFER DEPOSIT AMOUNT" shall have the meaning specified in Section
2.5(b).
"TRANSFER OBLIGATION DATE" shall have the meaning specified in Section
2.5(a).
"TRANSFERRED AGREEMENTS" shall have the meaning specified in Section
2.1(b).
"TRUST" shall mean the United Stationers Receivables Master Trust
created by this Agreement.
"TRUST ACCOUNT" shall have the meaning, with respect to any Series,
specified in the applicable Supplement for such Series.
"TRUST ASSETS" shall have the meaning specified in Section 2.1.
"TRUST TERMINATION DATE" shall have the meaning specified in Section
9.1(a).
"TRUSTEE" shall mean the institution executing this Agreement as
trustee, or its successor in interest or any successor trustee appointed as
herein provided.
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"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction or if no jurisdiction is
specified, as in effect in the State of New York.
"UNITED STATES REGULATIONS" means 31 C.F.R. Part 357; 12 C.F.R. Part
615, Subpart O; 12 C.F.R. Part 912; 12 C.F.R. Part 1511; 24 C.F.R. Part 81; 31
C.F.R. Part 354; and 18 C.F.R. Part 1314.
"USFS RECEIVABLES SALE AGREEMENT" shall have the meaning specified in
the recitals hereto.
"USI" shall mean United Stationers Inc., a Delaware corporation.
"USSC" shall mean United Stationers Supply Co., an Illinois
corporation.
"USSC RECEIVABLES SALE AGREEMENT" shall have the meaning specified in
the recitals hereto.
Section 1.2 OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Agreement, the Servicing
Agreement or in any Supplement shall have such defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) All capitalized terms used herein and not otherwise
defined have the meanings assigned to such terms in Section 1.01 of the
Receivables Sale Agreements.
(c) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1 to the extent
not defined, shall have the respective meanings given to them under GAAP. To the
extent that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under GAAP, the definitions contained herein shall
control.
(d) 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; 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.
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(e) The definitions contained in Section 1.1 are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
(f) Where a definition contained in Section 1.1 specifies
that such term shall have the meaning set forth in the related Supplement, the
definition of such term set forth in the related Supplement may be preceded by a
prefix indicating (or include in its definition) the specific Series or Class to
which such definition shall apply.
(g) Where reference is made in this Agreement or any related
Supplement to the principal amount of Receivables, such reference shall, unless
explicitly stated otherwise, be deemed a reference to the Principal Amount (as
such term is defined in Section 1.1) of such Receivables.
(h) Any reference herein or in any other Transaction
Document to a provision of the Internal Revenue Code or ERISA shall be deemed a
reference to any successor provision thereto.
(i) To the extent that any provision of this Agreement or
any other Transaction Document requires that a calculation be performed with
respect to a date occurring prior to the effective date of such Transaction
Document, such calculation shall be performed as provided therein as though such
Transaction Document had been effective on and as of such prior date.
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF RECEIVABLES.
(a) By execution and delivery of this Agreement, the Company
does hereby transfer, assign, set over and otherwise convey to the Trustee, for
the benefit of the Holders, without recourse (except as specifically provided
herein), all of its present and future right, title and interest in, to and
under:
(i) all Receivables, including those existing at the
close of business on the Initial Closing Date and all Receivables
thereafter arising from time to time until but not including the Trust
Termination Date;
(ii) the Related Property;
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(iii) all Collections;
(iv) all rights (including rescission, replevin or
reclamation) relating to any Receivable or arising therefrom;
(v) each Lockbox , each Lockbox Account, the
Collection Account and the Securities Account (each Lockbox Account, the
Collection Account and the Securities Account collectively, the
"ACCOUNTS"), including (A) all funds and other evidences of payment held
therein and all certificates and instruments, if any, from time to time
representing or evidencing any of such Accounts or any funds and other
evidences of payment held therein, (B) all investments of such funds held
in such Accounts and all certificates and instruments from time to time
representing or evidencing such investments, (C) all notes, certificates of
deposit and other instruments from time to time hereafter delivered or
transferred to, or otherwise possessed by, the Trustee for and on behalf of
the Company in substitution for any of the then existing Accounts (D) all
Eligible Investments from time to held in, or credited thereto and (E) all
interest, dividends, cash, instruments and other property from time to time
held in any and all of the then existing Accounts; and
(vi) all monies due or to become due and all amounts
received with respect to the items listed in clauses (i) through (v) and
all proceeds (including, without limitation, whatever is received upon the
sale, exchange, collection or other disposition of the foregoing and all
"proceeds" as defined in Section 9-102 of the UCC as in effect in the State
of New York) thereof, including all Recoveries relating thereto;
(b) The Company hereby transfers, assigns, sets over and
otherwise conveys to the Trustee, for the benefit of the Holders, and grants to
the Trustee, for the benefit of the Holders, a first priority perfected security
interest in, all its right, title and interest in, to and under the following:
each Receivables Sale Agreement and the Servicing Agreement, including in
respect of each such agreement, (A) all property assigned thereunder and all
rights of the Company to receive monies due and to become due under or pursuant
to such agreement, whether payable as fees, expenses, costs or otherwise, (B)
all rights of the Company to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to such agreement, (C) claims of the Company
for damages arising out of or for breach of or default under such agreement, (D)
the right of the Company to amend, waive or terminate such agreement, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder, (E) all other rights, remedies, powers,
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privileges and claims of the Company under or in connection with such agreement
(whether arising pursuant to such agreement or otherwise available to the
Company at law or in equity), including the rights of the Company to enforce
such agreement and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or in connection therewith
and (F) all monies due or to become due and all amounts received with respect to
the items listed in clauses (A) through (F) and all proceeds (including, without
limitation, whatever is received upon the sale, exchange, collection or other
disposition of the foregoing and all "proceeds" as defined in Section 9-102 of
the UCC as in effect in the State of New York) thereof, including all Recoveries
relating thereto (all of the foregoing set forth in subclauses (A)-(F),
inclusive, the "TRANSFERRED AGREEMENTS");
Such property described in the foregoing paragraphs (a) and (b), together with
all investments and all monies on deposit in any other bank account or accounts
maintained for the benefit of any Holders for payment to Holders shall
constitute the assets of the Trust (the "TRUST ASSETS").
Subject to Section 5.9, although it is the intent of the parties to
this Agreement that the conveyance of the Company's right, title and interest
in, to and under the Receivables and the other Trust Assets described in
paragraph (a) pursuant to this Agreement shall constitute either a purchase and
sale or a loan, in the event that such conveyance is deemed to create a loan
this Agreement shall constitute a security agreement under applicable law in
favor of the Trustee, for the benefit of the Holders. For this purpose and
without being in derogation of the parties' intent stated in the immediately
preceding sentence, the Company hereby grants to the Trustee, for the benefit of
the Holders, a perfected first priority security interest in all of the
Company's present and future right, title and interest in, to and under the
Receivables and such other Trust Assets to secure the payment of the applicable
Invested Amounts, interest thereon and the other fees and expenses and other
amounts due to the Trustee and the Holders.
(c) The assignment, set over and conveyance to the Trust
pursuant to Section 2.1(a) shall be made to the Trustee, on behalf of the Trust,
and each reference in this Agreement to such assignment, set over and conveyance
shall be construed accordingly. In connection with the foregoing assignment,
except as expressly provided otherwise in the Transaction Documents, the Company
and the Servicer agree to deliver to the Trustee each Trust Asset (including any
original documents or instruments included in the Trust Assets as are necessary
to effect such assignment) in which the transfer of an interest is perfected
under the UCC or otherwise solely by possession and not by filing a financing
statement or similar document.
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Notwithstanding the assignment of the Transferred Agreements set forth
in Section 2.1(b), the Company does not hereby assign or delegate any of its
duties or obligations under the USFS Receivables Sale Agreement to the Trust or
the Trustee and neither the Trust nor the Trustee accepts such duties or
obligations, and the Company shall continue to have the right and the obligation
to purchase Receivables from USFS from time to time. The foregoing assignment,
set-over and conveyance does not constitute and is not intended to result in a
creation or an assumption by the Trust, the Trustee, any Investor
Certificateholder or the Company, in its capacity as a Holder, of any obligation
of the Servicer, USFS, the Company, any Seller or any other Person in connection
with the Receivables or under any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligor.
In connection with such assignment, the Company agrees to record and
file, at its own expense, any financing statements (and continuation statements
with respect to such financing statements when applicable) or, where applicable,
registrations in the appropriate records, (i) with respect to the Receivables
now existing and hereafter created, including those conveyed to it pursuant to
the USFS Receivables Sale Agreement and (ii) with respect to any other Trust
Assets a security interest in which may be perfected under the relevant UCC,
legislation or similar statute by such filing or registration, as the case may
be, in each case meeting the requirements of applicable law in such manner and
in such jurisdictions as are necessary to perfect and maintain perfection of the
assignment of the Receivables and such other Trust Assets to the Trust, and to
deliver a file-stamped copy or certified statement of such financing statement
or registration or other evidence of such filing or registration to the Trustee
on or prior to the date of issuance of any Certificates. The Trustee shall be
under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
or other registration under the UCC, other relevant legislation or similar
statute in connection with such transfer. The Trustee shall be entitled to rely
conclusively on the filings or registrations made by or on behalf of the Company
without any independent investigation and the Company's obligation to make such
filings as evidence that such filings have been made.
In connection with such assignment, the Company further agrees, at its
own expense, on or prior to the Initial Closing Date to indicate, or to cause to
be indicated, in its computer files containing its master database of
Receivables and to cause USFS and each Seller to indicate in its records
containing its master database of Receivables that Receivables have been
conveyed to USFS or Company, as the case may be, pursuant to the applicable
Receivables Sale Agreement or conveyed to the Trust for the benefit of the
Holders pursuant to this Agreement.
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Section 2.2 ACCEPTANCE BY TRUSTEE. (a) The Trustee hereby
acknowledges its acceptance on behalf of the Trust of all right, title and
interest to the property, now existing and hereafter created, assigned to the
Trust pursuant to Section 2.1 and declares that it shall maintain such right,
title and interest, upon the trust herein set forth, for the benefit of all
Holders.
(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.
Section 2.3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY RELATING
TO THE COMPANY. The Company hereby represents and warrants to the Trustee and
the Trust, for the benefit of the holders of Certificates of each Outstanding
Series, as of the Closing Date and as of the Issuance Date of such Series, that:
(a) ORGANIZATIONAL EXISTENCE: COMPLIANCE WITH LAW;
GOVERNMENTAL APPROVALS. The Company (i) is a limited liability company duly
formed, validly existing and in good standing under the laws of the Cayman
Islands, (ii) has all requisite power and authority and all legal right to own
and operate its properties, to lease the properties it operates as lessee and to
conduct its business as now conducted and proposed to be conducted, (iii) is
duly qualified to do business as a foreign limited liability company and is in
good standing under the laws of each jurisdiction in which its business or
activities requires such qualification, except where the failure to so qualify
and be in good standing would not reasonably be likely to cause a Material
Adverse Effect, and (iv) is in compliance with all Requirements of Law, except
where the failure to comply would not reasonably be expected to have a Material
Adverse Effect. The Company does not engage in activities prohibited by the
Transaction Documents or its memorandum and articles of association.
(b) ORGANIZATIONAL POWER: AUTHORIZATION. The Company has the
requisite power and authority, and the legal right, to execute, deliver and
perform this Agreement and the other Transaction Documents to which it is a
party and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement and the other Transaction Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance, validity or
enforceability of this Agreement and the other Transaction Documents to which it
is a party by or against the Company other than (1) those which have duly been
obtained or made and are in full force and effect on the Closing Date or the
relevant Issuance Date, as the case may be, (ii) any filings of UCC-1 financing
statements or similar documents
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necessary to perfect the Company's or the Trust's interest in the Trust Assets,
(iii) those that may be required under state securities or "blue sky" laws in
connection with the offering or sale of certificates and (iv) those the failure
of which to obtain or make would not reasonably be expected to have a Material
Adverse Effect. This Agreement and each other Transaction Document to which the
Company is a party have been duly executed and delivered on behalf of the
Company.
(c) ENFORCEABILITY. This Agreement and each of the other
Transaction Documents to which the Company is a party (i) constitute the legal,
valid and binding obligations of the Company enforceable against it in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and except as such enforceability may
be limited by general principles of equity (whether considered in a proceeding
at law or in equity) and (ii) are effective and all action has been taken to
cause compliance with paragraph (n) of the definition of Eligible Receivables.
(d) NO LEGAL BAR. The execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Company is a
party will not violate any Requirement of Law, and will not result in, or
require, the creation or imposition of any Lien (other than Liens contemplated
or permitted hereby) on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
(e) NO MATERIAL LITIGATION. There are no actions, suits,
investigations or proceedings at law or in equity (including, without
limitation, injunctions, writs or restraining orders) by or before any
arbitrator, court or Governmental Authority now pending or, to the knowledge of
the Company, threatened against or affecting the Company or any material
properties, revenues or rights of the Company which (i) involve this Agreement
or any of the other Transaction Documents or any of the transactions
contemplated hereby or thereby, or (ii) could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The transactions
contemplated hereunder and the use of the proceeds thereof will not violate any
Requirement of Law.
(f) NO DEFAULT. The Company is not in default under or with
respect to any of its Contractual Obligations. No Early Amortization Event or
Potential Early Amortization Event has occurred and is continuing.
(g) TAX RETURNS. The Company has filed or caused to be filed
all Federal and all other tax returns which are required to have been filed by
it and has paid or caused to be paid all taxes shown thereon to be due and
payable, and
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any material assessments made against it or any of its property. No tax Lien has
been filed, and, to the knowledge of the Company, no material claim is being
asserted, with respect to any such taxes. For purposes of this paragraph,
"taxes" shall mean any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any Governmental Authority.
(h) LOCATION OF RECORDS: CHIEF EXECUTIVE OFFICE. The offices
at which the Company keeps its records concerning the Receivables either (x) are
located at the addresses set forth on Schedule II of the USSC Receivables Sale
Agreement or (y) have been reported to the Trustee in accordance with the
provisions of Section 2.8(1) of this Agreement. The chief executive office and
principal place of business of the Company is located at one of the addresses
set forth on Schedule 4, the Company's jurisdiction of organization is the
Cayman Islands and the place where the Company is "located" for the purposes of
Section 9-307 of the UCC is the State of Illinois. The Company's organizational
identification number assigned to it by its jurisdiction of organization in the
Cayman Islands is CR-80735 and the Company's legal name is "USS Receivables
Company, Ltd.". The Company has not, within the period of twelve months prior to
the date of the Original Agreement, (i) changed the location of its principal
place of business and chief executive office, its legal name or its
organizational structure, (ii) changed its "location" (within the meaning of
Section 9-307 of the UCC of all applicable jurisdictions) or (iii) become a "new
debtor" (as defined in Section 9-102(a)(56) of the UCC of all applicable
jurisdictions) with respect to a currently effective security agreement
previously entered into by any other Person. The Company is a Cayman Islands
limited liability company and has not changed its jurisdiction of organization.
(i) SOLVENCY. Both prior to and after giving effect to the
transactions occurring on each Issuance Date, (i) the fair value of the assets
of the Company at a fair valuation will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Company; (ii) the present fair
salable value of the property of the Company will be greater than the amount
that will be required to pay the probable liabilities of the Company on its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; (iii) the Company will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Company
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
The Company does not intend to, nor does it believe that it will,
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incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it and the timing of
and amounts of cash to be payable in respect of its Indebtedness.
(j) NOT A HOLDING COMPANY OR AN INVESTMENT COMPANY. Each of
the Company and the Trust is not a "holding company" or a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or any successor statute. Each of the Company and the
Trust is not and, after giving effect to the transactions contemplated hereby,
will not be required to be registered as, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or any successor
statute.
(k) OWNERSHIP, SUBSIDIARIES. All of the issued and
outstanding shares of the Company are owned, legally and beneficially, by USFS
or a nominee for USFS, free and clear of any Lien, other than any Lien in favor
of the administrative agent under the Credit Agreement. The Company will remain
at all times a two-member limited liability company and USFS will not transfer
its ownership interest in the Company at any time (except to a nominee who is an
independent director of the Company). The Company has no Subsidiaries.
(l) NAMES. The legal name of the Company is as set forth in
this Agreement. The Company has not had, nor does it have, any trade names,
fictitious names, assumed names or "doing business as" names.
(m) LIABILITIES. Other than, (i) the liabilities,
commitments or obligations (whether absolute, accrued, contingent or otherwise)
arising under or in respect of the Transaction Documents and (ii) immaterial
amounts due and payable in the ordinary course of business of a special-purpose
company, the Company does not have any liabilities, commitments or obligations
(whether absolute, accrued, contingent or otherwise), whether due or to become
due.
(n) USE OF PROCEEDS; FEDERAL RESERVE BOARD REGULATION. No
proceeds of the issuance of any Investor Certificates will be used by the
Company to purchase or carry any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as in effect from time to
time). The Company is in compliance with all applicable regulations of the Board
of Governors of the Federal Reserve System (including, without limitation,
Regulation U and with respect to "margin stock").
(o) COLLECTION PROCEDURES. The Company, USFS and each Seller
have in place procedures pursuant to the Transaction Documents which are either
necessary or advisable to ensure the timely collection of Receivables,
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including, without limitation, those procedure necessary to comply with Sections
2.7(f) and 2.7(h) of this Agreement.
(p) LOCKBOX ACCOUNTS. The conditions and requirements set
forth in Sections 2.7(f) and 2.7(h) of this Agreement and Section 2.3 of the
Servicing Agreement have at all times been satisfied and duly performed in all
material respects. The names and addresses of all Lockbox Processors, together
with the account numbers of the Lockbox Accounts at each Lockbox Processor and
the post office box number of each Lockbox, are listed on Schedule III to the
USSC Receivables Sale Agreement. The name(s) and address(es) of the financial
institution(s) maintaining the Collection Account and the Securities Account are
listed on Schedule II to this Agreement. The Company has not granted any Person,
other than the Trustee as contemplated by this Agreement, dominion and control
or "control" (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) of any Lockbox or Lockbox Account or of the Collection Account or
the Securities Account, or the right to take dominion and control or "control"
(within the meaning of Section 9-104 of the UCC of all applicable jurisdictions)
of any such Lockbox or Lockbox Account or of the Collection Account or the
Securities Account at a future time or upon the occurrence of a future event.
The Company has taken all steps necessary to ensure that the Trustee has
"control" (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) over all Lockboxes and Lockbox Accounts, the Collection Account
and the Securities Account. Each Lockbox Agreement to which the Company is party
is in full force and effect and each Lockbox Account set forth in Schedule III
to the USSC Receivables Sale Agreement, the Collection Account and the
Securities Account are free and clear of any Lien (other than any right of
set-off expressly provided for in the applicable Lockbox Agreement).
(q) NO CONFLICT. The execution and delivery of this
Agreement and the USFS Receivables Sale Agreement, the performance of the
transactions contemplated hereby (including the issuance of the Certificates)
and thereby and the fulfillment of the terms hereof and thereof will not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
(i) any indenture, contract, agreement, mortgage, deed of trust, or other
material instrument to which the Company is a party or by which it or any of its
property is bound or (ii) its memorandum, articles of association or other
organizational documents, or any shareholder agreements, member agreements,
voting trusts or similar arrangements applicable to any of its authorized shares
or equity interests.
(r) ALL CONSENTS REQUIRED. All appraisals, authorizations,
consents, orders or other similar actions of any Person or of any governmental
body or official required in connection with the execution and delivery of this
Agreement,
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the USFS Receivables Sale Agreement and the Certificates, the performance of the
transactions contemplated hereby and thereby, and the fulfillment of or terms
hereof and thereof, have been obtained.
(s) BULK SALES. The execution, delivery and performance of
this Agreement do not require compliance with any "bulk sales" law by the
Company.
(t) MATERIAL ADVERSE EFFECT. The Company represents and
warrants that since September 30, 2002, no event has occurred that has had, or
would reasonably be expected to have a material adverse effect on (A) the
financial condition or operations of the Company, (B) the ability of the Company
to perform its obligations under the Transaction Documents, or (C) the
collectibility of the Receivables generally or any material portion of the
Receivables.
(u) ACCURACY OF INFORMATION. All information furnished on or
after January 1, 2003 by the Company or any of its Affiliates to the Trustee,
any Agent or any Holder for purposes of or in connection with this Agreement,
any of the other Transaction Documents or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by the Company or any
of its Affiliates to the Trustee, any Agent or any Holder will be, true and
accurate in every material respect on the date such information is stated or
certified and does not and will not contain any material misstatement of fact or
omit to state a material fact or any fact necessary to make the statements
contained therein not misleading.
The representations and warranties set forth in this Section 2.3 shall
survive after the date made and the transfer and assignment of the Trust Assets
to the Trust. Upon discovery by a Responsible Officer of the Company or the
Servicer or by a Responsible Officer of the Trustee of a breach of any of the
foregoing representations and warranties with respect to any Outstanding Series
as of the Issuance Date of such Series, the party discovering such breach shall
give prompt written notice to the other parties and to each Agent with respect
to all Outstanding Series. The Trustee's obligations in respect of any breach
are limited as provided in Section 8.2(g).
Section 2.4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY RELATING
TO THE RECEIVABLES. The Company hereby represents and warrants to the Trustee
and the Trust, for the benefit of the holders of Certificates of each
Outstanding Series, (x) as of the Closing Date, and (y) with respect to each
Receivable transferred to the Trust after the Closing Date, as of the related
Receivables Purchase Date, unless, in either case, otherwise stated in the
applicable Supplement or unless such representation or warranty expressly
relates only to a prior date, that:
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(a) [Intentionally Omitted].
(b) Each Receivable existing on the Initial Closing Date or,
in the case of Receivables transferred to the Trust after the Initial Closing
Date, on the date that each such Receivable shall have been transferred to the
Trust, has been conveyed to the Trust free and clear of any Lien.
(c) On the Initial Closing Date, each Receivable transferred
to the Trust that was included in the calculation of the initial Aggregate
Receivables Amount was an Eligible Receivable and, in the case of Receivables
transferred to the Trust after the Initial Closing Date, on the date such
Receivable shall have been transferred to the Trust, each such Receivable that
is included in the calculation of the Aggregate Receivables Amount on such date
is an Eligible Receivable. Each Receivable classified as an "ELIGIBLE
RECEIVABLE" by the Company in any document or report delivered hereunder
satisfies the requirements of eligibility contained in the definition of
Eligible Receivable.
(d) The Company has made an election to be treated as a
disregarded entity for United States federal income tax purposes.
(e) The representations and warranties of USFS in the USFS
Receivables Sale Agreement are true and correct in all material respects.
(f) Each Receivable, together with any contract, instrument
and/or agreement with respect thereto, is the legal, valid and binding
obligation of the related Obligor thereon, enforceable against such Obligor to
pay the full Principal Amount thereof (and any accrued interest thereon) in
accordance with its terms.
(g) Each Receivable, together with any contract, instrument
and/or agreement related thereto, does not contravene any applicable law, rule
or regulation (including, without limitation, laws, rules or regulations
relating to truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices or privacy), which in any way
renders such Receivable (or any contract, instrument and/or agreement related
thereto) unenforceable or would otherwise impair in any material respect the
collectibility of such Receivable.
(h) The Company has complied in all material respects with
the applicable Policies with regard to each Receivable and the related
contracts, instruments and/or agreements, and has not made any material change
to the Policies, except in accordance with Section 2.8(j).
(i) The Company has determined that, immediately after
giving effect to each transfer to the Trust hereunder, the Aggregate Receivables
Amount is at least equal to the Aggregate Target Receivables Amount.
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(j) PAYMENTS TO USFS. With respect to each Receivable
transferred to the Company under the USFS Receivables Sale Agreement, the
Company has given reasonably equivalent value to USFS in consideration therefor
and such transfer was not made for or on account of an antecedent debt. No
transfer by USFS of any Receivable under the USFS Receivables Sale Agreement is
or may be voidable under any section of the Federal Bankruptcy Code.
The representations and warranties set forth in this Section 2.4 shall
survive after the date made and the transfer and assignment of the Trust Assets
to the Trust. Upon discovery by a Responsible Officer of the Company or the
Servicer or a Responsible Officer of the Trustee of a breach of any of the
representations and warranties with respect to each Outstanding Series as of the
Issuance Date of such Series, the party discovering such breach shall give
prompt written notice to the other parties and to each Agent with respect to all
Outstanding Series. The Trustee's obligations in respect of any breach are
limited as provided in Section 8.2(g).
Section 2.5 TRANSFER OF INELIGIBLE RECEIVABLES.
(a) TRANSFER OBLIGATION. If (i) any representation or
warranty under Sections 2.4(a), (b) or (c) is not true and correct in any
material respect as of the date specified therein with respect to any Receivable
transferred to the Trust, (ii) there is a breach of any covenant under Section
2.8(c) with respect to any Receivable and such breach has a material adverse
effect on the Certificateholders' Interest in such Receivable, (iii) the Trust's
interest in any Receivable is not a first priority perfected ownership or
security interest at any time as a result of any action taken by, or any failure
to take action by, the Company, (iv) there is a breach of any covenant under
Section 2.8(p) or (v) any Dilution Adjustment is made (any Receivable as to
which the conditions specified in any of clauses (i), (ii), (iii) or (v) of this
Section 2.5(a) exists is referred to herein as an "INELIGIBLE RECEIVABLE") then,
upon the earlier (the date on which such earlier event occurs, the "TRANSFER
OBLIGATION DATE") of the discovery by the Company of any such event which
continues unremedied or receipt by the Company of written notice given by the
Trustee or the Servicer of any such event which continues unremedied (but in the
case of clause (iv), in no event later than 2 Business Days after such event
occurs), the Company shall become obligated to deposit or cause to be deposited
into the Collection Account the Transfer Deposit Amount with respect to such
Ineligible Receivable in order to transfer such Ineligible Receivables on the
terms and conditions set forth in Section 2.5(b) or, in the case of clause (iv),
to remedy the breach under Section 2.8(p).
(b) TRANSFER OF RECEIVABLES. Subject to the last sentence of
this Section 2.5(b), the Company shall, with respect to each Ineligible
Receivable required to be transferred pursuant to Section 2.5(a), or, in the
case of clause (iv) to
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remedy the breach under Section 2.8(p), deposit or cause to be deposited in the
Collection Account in immediately available funds on the Business Day following
the related Transfer Obligation Date an amount equal to the lesser of (x) the
amount by which the Aggregate Target Receivables Amount exceeds the Aggregate
Receivables Amount (after giving effect to the reduction thereof by the
Principal Amount of such Ineligible Receivable) and (y) the aggregate
outstanding Principal Amount of each such Ineligible Receivable (the "TRANSFER
DEPOSIT AMOUNT"). Upon transfer or deposit of the Transfer Deposit Amount, the
Trust shall automatically and without further action be deemed to transfer,
assign, set over and otherwise convey to the Company, without recourse,
representation or warranty, all the right, title and interest of the Trust in
and to such Ineligible Receivable, all monies due or to become due with respect
thereto and all proceeds thereof; and such transferred Ineligible Receivable
shall be treated by the Trust as collected in full as of the date on which it
was transferred. The Trustee shall execute such documents and instruments of
transfer or assignment prepared by and at the expense of the Company and take
such other actions as shall reasonably be requested by the Company to effect the
conveyance of such Receivables pursuant to this Section 2.5(b) free and clear of
the lien of this Agreement and all other liens created by the Trustee. Except as
otherwise specified in any Supplement, the obligation of the Company to deposit
or cause to be deposited the Transfer Deposit Amount with respect to any
Ineligible Receivable shall constitute the sole remedy respecting the event
giving rise to such obligation available to Investor Certificateholders (or the
Trustee on behalf of Investor Certificateholders).
Section 2.6 PURCHASE OF INVESTOR CERTIFICATEHOLDERS' INTEREST IN
TRUST PORTFOLIO. (a) Upon the actual knowledge of a breach of any of the
representations and warranties set forth in paragraphs (a), (b), (c), (d),
(e)(i) or (q) of Section 2.3, which breach has a material adverse effect on the
interests of the holders of an Outstanding Series (without giving effect to any
Enhancement) under or with respect to the Transaction Documents, then the
Trustee, at the written direction of holders evidencing more than 50% of the
Invested Amount of such Outstanding Series, subject to Section 8.2 hereof, shall
notify the Company to purchase such Outstanding Series and the Company shall be
obligated to make such purchase on the next Distribution Date occurring at least
five Business Days after receipt of such notice on the terms and conditions set
forth in Section 2.6(b) below; PROVIDED, HOWEVER, that no such purchase shall be
required to be made if, by such Distribution Date, the representations and
warranties contained in paragraphs (a), (b), (c), (d), (e)(i) or (q) of Section
2.3 shall be satisfied in all material respects and any material adverse effect
on the holders of such Outstanding Series caused thereby shall have been cured.
(b) As required under Section 2.6(a) above, the Company
shall deposit into the Collection Account for credit to the applicable
subaccount of
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the Collection Account on the Business Day preceding such Distribution Date an
amount equal to the purchase price (as described in the next succeeding
sentence) for the Certificateholders' Interest for such Outstanding Series on
such day. The purchase price for any such purchase will be equal to (i) the
Adjusted Invested Amount of such Outstanding Series on the date on which the
purchase is made plus (ii) an amount equal to all interest accrued but unpaid on
such Series up to the Distribution Date on which the distribution of such
deposit is scheduled to be made pursuant to Section 9.2 plus (iii) any other
amount required to be paid in connection therewith pursuant to any Supplement.
Notwithstanding anything to the contrary in this Agreement, the entire amount of
the purchase price deposited in the Collection Account shall be distributed to
the related Investor Certificateholders on such Distribution Date pursuant to
Section 9.2. If the Trustee gives notice directing the Company to purchase the
Certificates of an Outstanding Series as provided above, except as otherwise
specified in any Supplement, the obligation of the Company to purchase such
Certificates pursuant to this Section 2.6 shall constitute the sole remedy
respecting an event of the type specified in the first sentence of this Section
2.6 available to the applicable Investor Certificateholders (or the Trustee on
behalf of such Investor Certificateholders).
Section 2.7 AFFIRMATIVE COVENANTS OF THE COMPANY. The Company hereby
covenants that, until the Trust Termination Date occurs, the Company shall:
(a) FINANCIAL STATEMENTS. Furnish to the Trustee, each Agent
and the Rating Agencies, (i) as soon as available, but in any event within 125
days after the end of each fiscal year of the Company, a copy of the audited
financial statements (which shall include the balance sheet, statement of income
and retained earnings and statement of cash flows) of the Company as at the end
of such year, all in reasonable detail and certified (without qualification as
to scope) in a manner acceptable to the Trustee by independent public
accountants acceptable to the Trustee as correct and fairly presenting in all
material respects the financial position and results of operations of the
Company; (ii) as soon as available, but in any event within 90 days after the
end of the fiscal year of USI, a copy of the audited financial statements (which
shall include the balance sheet, statement of income and retained earnings and
statement of cash flow) of USI and its consolidated Subsidiaries as at the end
of such year, all in reasonable detail and certified (without qualification as
to scope) in a manner acceptable to the Trustee by independent public
accountants acceptable to the Trustee as correct and fairly presenting in all
material respects the financial position and results of operations of USI and
its consolidated Subsidiaries; (iii) as soon as available, but in any event
within 45 days after the close of the first three (3) quarterly periods of each
of USI's fiscal years, and within 60 days after the close of the first three (3)
quarterly periods of each of the Company's fiscal years, balance sheets of USI
and its consolidated subsidiaries and balance sheets of the Company, each as at
the close of each such period, and statements of income and
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retained earnings and a statement of cash flows for USI and its consolidated
Subsidiaries and for the Company, each for the period from the beginning of such
fiscal year to the end of such quarter, and (iv) as soon as available, but in
any event within 60 days after the close of the first three (3) quarterly
periods of each of USFS's fiscal years, and within 125 days after the close of
the fourth quarterly period of each of USFS's fiscal years, balance sheets of
USFS and its consolidated subsidiaries, each as at the close of each such
period, and statements of income and retained earnings and a statement of cash
flows for USFS and its consolidated Subsidiaries, each for the period from the
beginning of such fiscal year to the end of such quarter, all certified by an
appropriate Responsible Officer. Together with the financial statements required
hereunder, furnish to the Trustee and each Agent a compliance certificate in
substantially the form of Exhibit C hereto signed by an appropriate Responsible
Officer of the Company or USI, as applicable, and dated the date of such annual
financial statements.
(b) PAYMENT OF OBLIGATIONS: COMPLIANCE WITH OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, assessments, levies and other
governmental charges at any time owing by it and all of its other material
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company. The Company shall defend the right, title and interest of the
Holders in, to and under the Receivables and the other Trust Assets, whether now
existing or hereafter created, against all claims of third parties claiming
through or under the Company, any Seller or the Servicer. The Company will duly
fulfill all material obligations on its part to be fulfilled under or in
connection with each Receivable and the other Trust Assets and will do nothing
to impair the rights of the Holders in such Receivable and the other Trust
Assets. The Company shall pay when due any taxes (including, without limitation,
property, excise, transfer or similar taxes) arising with respect to, or payable
in connection with, the Receivables and the other Trust Assets or on account of
the transactions contemplated by the Transaction Documents.
(c) INSPECTION OF PROPERTY: BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and accounts in which full, true and correct
entries in conformity in all material respects with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its business
and activities; and permit representatives of the Trustee upon reasonable
advance notice (i) to visit and inspect any of its properties and examine and
make copies of and abstracts from any of its books and records during normal
business hours on any Business Day and as often as may reasonably be desired
subject to the Company's normal security requirements and (ii) to discuss the
business, operations, properties and financial and other condition of the
Company with officers and employees of the Company and
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with its Independent Public Accountants; PROVIDED, that the Trustee shall notify
the Company prior to any contact with such Independent Public Accountants and
shall give the Company the opportunity to participate in such discussions.
Without limiting the foregoing, at the Company's cost and expense, the Trustee
or its agents or representatives may conduct audits of the Receivables on an
annual basis (or more frequently in the Trustee's discretion if an Amortization
shall have occurred).
(d) COMPLIANCE WITH LAW AND POLICIES. (i) Comply in all
respects with all Requirements of Law applicable to the Company, except where
the failure to so comply would not reasonably be expected to have a Material
Adverse Effect; and preserve and maintain its limited liability company
existence, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing as a foreign
entity in each jurisdiction in which its business activities requires such
qualification, except where the failure to so qualify and be in good standing
would not reasonably be expected to have a Material Adverse Effect.
(ii) perform and cause each Seller to perform (A) its
obligations and otherwise comply in all material respects under all
contracts, agreements or instruments related to the Receivables and (B) its
obligations in accordance with, and comply in all material respects with,
the applicable Policies in regard to each Receivable and the Related
Property.
(e) PURCHASE OF RECEIVABLES. The Company will, and will
require USFS to, perform each of their respective obligations and undertakings
under and pursuant to the USFS Receivables Sale Agreement, will purchase
Receivables thereunder in material compliance with the terms thereof and will
not release the rights and remedies accorded to the Company under the USFS
Receivables Sale Agreement. The Company will take all actions to perfect and
enforce its rights and interests (and the rights and interests of the Trustee,
each Agent and Holders as assignees of the Company) under the USFS Receivables
Sale Agreement as the Trustee or any Agent may from time to time reasonably
request, INCLUDING, WITHOUT LIMITATION, making claims to which it may be
entitled under any indemnity, reimbursement or similar provision contained in
the USFS Receivables Sale Agreement. The Company will purchase Receivables
solely pursuant to (i) the USFS Receivables Sale Agreement or (ii) this
Agreement.
(f) COLLECTIONS. The Company will cause (1) all proceeds
from all Lockboxes to be directly deposited by a Lockbox Processor into a
Lockbox Account and (2) each Lockbox and Lockbox Account and Collection Account
and the Securities Account to be subject at all times to a Lockbox Agreement
that is in full force and effect. The Company will instruct, or cause the
Servicer to instruct, all
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Obligors to pay all Collections directly to a Lockbox or Lockbox Account. In the
event any payments relating to Receivables are remitted directly to the Company
or any Affiliate of the Company, the Company will remit all such payments (or
will cause all such payments to be remitted) directly to the applicable Lockbox
Processor and deposited into the applicable Lockbox Account or the Collection
Account within one Business Day following receipt thereof, and, at all times
prior to such remittance, the Company or such Affiliate will itself hold or, if
applicable, will cause such payments to be held in trust for the exclusive
benefit of the Trustee and the Holders. The Company will maintain exclusive
ownership of each Lockbox and Lockbox Account and the Collection Account and the
Securities Account and shall not grant the right to take dominion and control or
establish "control" (within the meaning of Section 9-104 of the UCC of all
applicable jurisdictions) of any Lockbox or Lockbox Account or the Collection
Account or Securities Account at a future time or upon the occurrence of a
future event to any Person, except to the Trustee as contemplated by this
Agreement. With respect to each Lockbox and Lockbox Account and the Collection
Account and Securities Account, the Company shall take all steps necessary to
ensure that the Trustee has "control" (within the meaning of Section 9-104 of
the UCC of all applicable jurisdictions) over each such Lockbox and Lockbox
Account and the Collection Account and Securities Account.
(g) NOTICES. Promptly (and, in any event, within five
Business Days after a Responsible Officer of the Company becomes aware of such
event) give written notice to the Trustee, each Rating Agency and each Agent for
any Outstanding Series of:
(i) the occurrence of any Early Amortization Event or
Potential Early Amortization Event;
(ii) any Lien on any Receivable or any other Trust
Assets;
(iii) the entry of any judgment or decree or the
institution or contingency of any litigation, arbitration proceeding,
investigation or governmental proceeding against the Company and any
material adverse development in any previously disclosed litigation,
investigations or proceedings;
(iv) the occurrence of any event or condition that has
had, or would reasonably be expected to have, a Material Adverse Effect.
(v) the occurrence of any "Purchase Termination
Event" or "Potential Purchase Termination Event" or
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"Early Termination" under and as defined in any Receivables Sale Agreement;
(vi) the occurrence of a default or an event of
default under any other financing arrangement pursuant to which the Company
is a debtor or an obligor; and
(vii) any downgrade in the rating of any Indebtedness
of USSC (if then rated) by S&P or by Moody's, setting forth the
Indebtedness affected and the nature of such change.
(h) LOCKBOXES. Ensure that each Lockbox Account, the
Collection Account and the Securities Account shall be free and clear of, and
defend each Lockbox Account, the Collection Account and the Securities Account
against, any Lien (other than the Lien in favor of the Trustee for the benefit
of the Holders), writ, order, stay, judgment, warrant of attachment or execution
or similar process.
(i) SEPARATE ORGANIZATIONAL EXISTENCE.
(i) Maintain its own deposit, securities or other
account or accounts, separate from those of any Affiliate, with commercial
banking institutions or broker dealers and ensure that the funds of the
Company will not be diverted to any other Person or for other than
corporate uses of the Company, nor will such funds be commingled with the
funds (other than funds consisting of (i) Excluded Receivables Payments or
(ii) Collections remitted to a Collector pursuant to Section 2.3(a) of the
Servicing Agreement; PROVIDED that, in each case, such funds shall not be
commingled for more than two (2) Business Days) and only maintain bank
accounts or other depository accounts to which the Company alone is the
account party and from which the Company alone (or the Trustee hereunder)
has the sole power to make withdrawals;
(ii) To the extent that it shares the same officers or
other employees as any of its members or Affiliates, the salaries of and
the expenses related to providing benefits to such officers and other
employees shall be fairly allocated among such entities, to the extent
practicable, on the basis of such entities' actual share of such costs and
to the extent such allocation is not practicable, on a basis reasonably
related to such entities' fair share of the salary and benefit costs
associated with all such common officers and employees;
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(iii) To the extent that it jointly contracts with any
of its members or Affiliates to do business with vendors or service
providers or to share overhead expenses, the costs incurred in so doing
shall be allocated fairly among such entities, to the extent practicable,
on the basis of such entities' actual share of such costs and to the extent
such allocation is not practicable, on a basis reasonably related to such
entities' fair share of such costs. To the extent that the Company
contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing shall be fairly allocated to or
among such entities for whose benefit the goods or services are provided,
to the extent practicable, on the basis of such entities' actual share of
such costs and to the extent such allocation is not practicable, on a basis
reasonably related to such entities' fair share of such costs. All material
transactions between the Company and any of its Affiliates, whether
currently existing or hereafter entered into, shall be only on an
arm's-length basis, it being understood and agreed that the transactions
contemplated in the Transaction Documents meet the requirements of this
clause (iii);
(iv) Maintain a principal executive office at a
separate address from the address of United Stationers Supply Co., USFS,
and their Affiliates; PROVIDED that reasonably segregated offices in the
same building shall constitute separate addresses for purposes of this
clause (iv). To the extent that the Company and any of its members or
Affiliates have offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses;
(v) Issue separate financial statements prepared not
less frequently than annually and prepared in accordance with GAAP;
(vi) Conduct its affairs in its own name and strictly
in accordance with its articles of association and observe all necessary,
appropriate and customary limited liability company formalities, including,
but not limited to, holding all regular and special members' and directors'
meetings appropriate to authorize all limited liability company action,
keeping separate and accurate minutes of its meetings, passing all
resolutions or consents necessary to authorize actions taken or to be
taken, and maintaining accurate and separate books, records and accounts,
including, but not limited to, payroll and intercompany transaction
accounts;
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(vii) Not assume or guarantee any of the liabilities of
any Seller, USFS, the Support Provider, the Servicer or any Affiliate of
any thereof, it being understood that a shareholder's capital contribution
is not such a guarantee or assumption;
(viii) Take, or refrain from taking, as the case may be,
all other actions that are necessary to be taken or not to be taken in
order to (x) ensure that the assumptions and factual recitations set forth
in the Specified Bankruptcy Opinion Provisions remain true and correct in
all material respects with respect to the Company and (y) comply with those
procedures described in such provisions which are applicable to the
Company;
(ix) Pay all of the Company's operating expenses and
liabilities from the Company's own assets (except for certain payments by
any Seller, USFS, or any other Subsidiary or Affiliate of any Seller or
USFS, or other Persons pursuant to allocation arrangements that comply with
the requirements of this Section 2.7(i)); and
(x) Without limiting Section 2.8(n), maintain its
memorandum and articles of association and other organizational documents
in conformity with this Agreement, such that it does not amend, restate,
supplement or otherwise modify its memorandum, articles of association or
other organizational documents in any respect that would impair its ability
to comply with the terms or provisions of any of the Transaction Documents,
including, without limitation, this Section 2.7(i).
(j) PRESERVATION OF ORGANIZATIONAL EXISTENCE. (i) Preserve
and maintain its existence as a limited liability company, and its rights,
franchises and privileges in the jurisdiction of its formation and (ii) qualify
and remain qualified in good standing as a foreign limited liability company in
each jurisdiction where the ownership of its properties and the conduct of its
business require such qualification.
(k) NET WORTH. Maintain at all times a consolidated net
worth inclusive of its interest in the Receivables and the Related Property, as
determined in accordance with GAAP, at least equal to $45 million.
(l) OPTIONAL TERMINATION. If the Company shall deliver an
Optional Termination Notice to the Trustee with respect to any Outstanding
Series, the Company shall deliver an Optional Termination Notice to the Trustee
with respect to all Outstanding Series.
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(m) MAINTENANCE OF PROPERTY. Keep all material tangible
property useful and necessary in its business in good working order and
condition (normal wear and tear excepted), except to the extent that the failure
to do any of the foregoing with respect to any such property would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect with respect to the Company.
(n) OWNERSHIP; FURTHER ASSURANCES. Take (or cause each
Seller to take) all necessary action to (i) vest legal and equitable title to
the Receivables, the Related Property and the Collections purchased under the
USFS Receivables Sale Agreement irrevocably in the Company, free and clear of
any Liens other than Liens in favor of the Trustee for the benefit of the
Holders (INCLUDING, WITHOUT LIMITATION, the filing of all financing statements
or other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect the Company's
interest in such Receivables, Related Property and Collections and such other
action to perfect, protect or more fully evidence the interest of the Company
therein as the Trustee or any Agent may reasonably request), and (ii) establish
and maintain, in favor of the Trustee, for the benefit of the Holders, a valid
and perfected first priority undivided percentage ownership interest (and/or a
valid and perfected first priority security interest) in all Receivables,
Related Property and Collections to the full extent contemplated herein, free
and clear of any Lien other than Liens in favor of the Trustee for the benefit
of the Holders (INCLUDING, WITHOUT LIMITATION, the filing of all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect the Trustee's
(for the benefit of the Holders) interest in such Receivables, Related Property
and Collections and such other action to perfect, protect or more fully evidence
the interest of the Trustee for the benefit of the Holders as the Trustee or any
Agent may reasonably request).
(o) [Intentionally Omitted.]
(p) FINANCIAL INFORMATION. The Company will furnish or
cause to be furnished to the Trustee and each Agent:
(i) SHAREHOLDERS OR MEMBERS STATEMENTS AND REPORTS.
Promptly upon the furnishing thereof to the shareholders or members of the
Company copies of all financial statements, reports and proxy statements so
furnished.
(ii) S.E.C. FILINGS. Promptly upon the filing
thereof, copies of all registration statements and annual, quarterly,
monthly or other regular reports which the Company or any of its
Subsidiaries files with the Securities and Exchange Commission.
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(iii) OTHER INFORMATION. Promptly, from time to time,
such other information, documents, records or reports relating to the
Receivables or the condition or operations, financial or otherwise, of the
Company as the Trustee or any Agent may from time to time reasonably
request in order to protect the interests of the Trustee, the Trust, each
Holder and/or each Agent under or as contemplated by this Agreement and the
other Transaction Documents.
(q) POST-CLOSING DELIVERIES. (i) Deliver, within 30 days
after the Closing Date, (A) time-stamped receipt copies of proper Uniform
Commercial Code termination statements with respect to the financing statements
listed on Schedule 6, (B) amended and restated organizational documents for the
Company, in form and substance satisfactory to the Trustee and (C) an
acknowledgment from JPMorgan Chase Bank as to the erroneous filing of a
termination statement with respect to the financing statement identified on
Schedule 7 hereto; and (ii) execute and deliver to the Trustee, a control
agreement with respect to the Collection Account and the Securities Account
substantially in the form of Exhibit D hereto and acknowledge the Intercreditor
Agreement, in each case within 5 days of receipt thereof.
(r) CLOSING OF LOCKBOX. On or before May 30, 2003, close the
Lockbox Account maintained at The Northern Trust Company, as identified on
Schedule III to each of the USSC Receivables Sale Agreement and the USFS
Receivables Sale Agreement, and from and after May 30, 2003, not permit any
collections to be deposited to such Lockbox Account.
Section 2.8 NEGATIVE COVENANTS OF THE COMPANY. The Company hereby
covenants that, until the Trust Termination Date occurs, it shall not directly
or indirectly:
(a) ACCOUNTING OF TRANSFERS. Prepare any financial
statements which shall account for the transactions contemplated hereby in any
manner other than as a transfer of Receivables and the other Trust Assets by the
Company to the Trust or in any other respect account for or treat the
transactions under this Agreement (including for financial accounting purposes,
except as required by law) in any manner other than as transfers of Receivables
and the other Trust Assets by the Company to the Trust; PROVIDED, HOWEVER, that
this Section 2.8(a) shall not apply for any tax or tax accounting purposes.
(b) LIMITATION ON INDEBTEDNESS. Create, incur, assume or
suffer to exist any Indebtedness, except: (i) Indebtedness evidenced by the
Subordinated Note or the Contributed Note; (ii) Indebtedness representing fees,
expenses and indemnities payable pursuant to and in accordance with the
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Transaction Documents; and (iii) Indebtedness for services supplied or furnished
to the Company in an amount not to exceed $10,000 at any one time outstanding;
PROVIDED that any Indebtedness permitted hereunder and described in clauses (i)
and (iii) shall be payable by the Company solely from funds available to the
Company which are not otherwise needed to be applied to the payment of any
amounts by the Company pursuant to any Pooling and Servicing Agreements and
shall be non-recourse other than with respect to proceeds in excess of the
proceeds needed to be so applied.
(c) LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
(d) LIMITATION ON GUARANTEE OBLIGATIONS. Become or remain
liable, directly or contingently, in connection with any Indebtedness or other
liability of any other Person, whether by guarantee, endorsement (other than
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business and reimbursement and indemnification obligations in favor of
the Trustee or the Investor Certificateholders as provided for under this
Agreement and the other Transaction Documents), agreement to purchase or
repurchase, agreement to supply or advance funds, or otherwise, except in
connection with indemnification obligations of the Company to the limited extent
provided in the Company's memorandum and articles of association; PROVIDED that
any such indemnification shall be paid solely from funds available to the
Company which are not otherwise needed to be applied to the payment of any
amounts pursuant to any Pooling and Servicing Agreements, shall be non-recourse
other than with respect to proceeds in excess of the proceeds necessary to make
such payment, and shall not constitute a claim against the Company to the extent
that insufficient proceeds exist to make such payment.
(e) LIMITATION ON FUNDAMENTAL CHANGES. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets other than the assignments and transfers contemplated hereby.
(f) LIMITATION ON DIVIDENDS AND OTHER PAYMENTS. Declare or
pay any dividend on, or make any payment on account of, or set apart assets for
a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of capital stock of
the Company, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in
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obligations of the Company (any of the foregoing, a "restricted payment"),
unless (i) at the date such restricted payment is made, the Company shall have
made all payments in respect of its repurchase obligations pursuant to this
Agreement outstanding at such date and (ii) such restricted payment is made no
more frequently than on a monthly basis and is effected in accordance with all
organizational and legal formalities applicable to the Company; PROVIDED,
HOWEVER, that (A) no restricted payment shall be made on any date if (x) a
Potential Early Amortization Event of a type referred to in clause (a)(ii) or
(a)(iii) of Section 7.1 or (y) an Early Amortization Event has occurred and is
continuing (or would occur as a result of such payment) on such date and (B) all
restricted payments made on any date shall be payable by the Company solely from
funds available to the Company which are not otherwise needed on such date to be
applied to the payment of any amounts by the Company pursuant to any Pooling and
Servicing Agreement.
(g) BUSINESS OF THE COMPANY. Engage at any time in any
business or business activity other than the acquisition of Receivables and
Related Property pursuant to the USFS Receivables Sale Agreement, the
assignments and transfers hereunder and the other transactions contemplated by
the Transaction Documents, and any activity incidental to the foregoing and
necessary or convenient to accomplish the foregoing, or enter into or be a party
to any agreement or instrument other than in connection with the foregoing,
except those agreements or instruments permitted under Section 2.8(i) or set
forth on Schedule 5.
(h) LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes. debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except for (i) any Exchangeable Company Interest, any Series Subordinated
Interest, the Receivables, the Certificates and the other Trust Assets, (ii) the
Subordinated Note and the Contributed Note and (iii) any other advance or loan
made to USFS, PROVIDED, HOWEVER, that in the case of the preceding clause (iii),
(A) no (x) Potential Early Amortization Event of a type referred to in clause
(a)(ii) or (a)(iii) of Section 7.1 or (y) Early Amortization Event has occurred
and is continuing at the time any such investment is made (or would occur as a
result of such investment), (B) no amounts are outstanding under the
Subordinated Note and the Contributed Note, (C) the loan made is a demand loan
at a market rate of interest and (D) any such investment shall be made by the
Company solely from funds available to the Company which are not otherwise
needed to be applied to the payment of any amounts by the Company pursuant to
any Pooling and Servicing Agreement.
(i) AGREEMENTS.
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(i) Become a party to, or permit any of its
properties to be bound by, any indenture, mortgage, instrument, contract,
agreement, lease or other undertaking, except the Transaction Documents,
leases of office space, equipment or other facilities for use by the
Company in its ordinary course of business, employment agreements, service
agreements, agreements relating to shared employees and the other
Transaction Documents and agreements reasonably necessary or desirable to
perform its obligations under the Transaction Documents.
(ii) Issue any power of attorney (except to the
Trustee or the Servicer or except for the purpose of permitting any Person
to perform any ministerial functions on behalf of the Company that are not
prohibited by or inconsistent with the terms of the Transaction Documents).
(iii) Amend, supplement, restate, cancel, terminate,
modify or waive any of the provisions of the USFS Receivables Sale
Agreement or any Lockbox Agreement or request, consent or agree to or
suffer to exist or permit any such amendment, supplement, restatement,
cancellation, termination, modification or waiver or exercise any consent
or approval rights granted to it thereunder or give any directive
thereunder or otherwise grant any indulgence thereunder, without, in each
case, the prior written consent of the Trustee and each Agent.
(j) POLICIES. Make any change or modification (or permit any
change or modification to be made) in any material respect to the Policies,
unless (i) such changes or modifications are necessary under any Requirement of
Law, (ii) the Company shall have given the Trustee and each Agent at least 10
days notice prior to the effectiveness of such change or modification and
delivered to the Trustee and each Agent a copy of the Policies then in effect
and a notice indicating such change or amendment, (iii) such changes or
modifications would not reasonably be likely to materially and adversely affect
the collectibility of the Receivables or the credit quality of any newly created
Receivables or (iv) the Rating Agency Condition is satisfied with respect
thereto; PROVIDED, HOWEVER, that if any change or modification, other than a
change or modification permitted pursuant to clause (i) or (ii) above, would be
reasonably likely to materially and adversely affect the collectibility of the
Receivables or the credit quality of any newly created Receivables, the consent
of each Agent (or as specified in the related Supplement) shall be required to
effect such change or modification.
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(k) RECEIVABLES NOT TO BE EVIDENCED BY INSTRUMENTS. Subject
to the delivery requirement set forth in Section 2.1(c), take any action to
cause any Receivable then outstanding to be evidenced by any "instrument" other
than, PROVIDED that the procedures set forth in Schedule 3 are fully implemented
with respect thereto, an instrument which alone or together with a security
agreement constitutes "chattel paper" (each as defined in the UCC as in effect
in any state in which the Company's or the applicable Seller's chief executive
office or books and records relating to such USFS's Receivable are located and
the UCC as in effect in each such Person's jurisdiction of organization) or any
title in bearer form, except in connection with its enforcement or collection of
a Defaulted Receivable, in which event the Company shall deliver such instrument
or title to the Trustee as soon as reasonably practicable but in no event more
than five days after the execution thereof. The Company shall hold any chattel
paper evidencing a Receivable as custodian for the Trustee.
(l) OFFICES. Move outside or within the state where such
office is now located the location of its chief executive office or of any of
the offices where it keeps its records with respect to the Receivables without
(i) in the case of moves outside such state, giving 30 days' prior written
notice to the Trustee and each Rating Agency, (ii) in the case of moves within
such state, giving the Trustee prompt notice of a change within the state where
such office is now located of the location of its chief executive office or any
office where it keeps its records with respect to the Receivables and (iii)
taking all actions reasonably requested by the Trustee (including but not
limited to all filings and other acts necessary or advisable under the UCC or
similar statute of each relevant jurisdiction) in order to continue the Trust's
first priority perfected ownership or security interest in all Receivables now
owned or hereafter created; PROVIDED, HOWEVER, that the Company shall not change
the location of its chief executive office to outside of the United States, or
to a state which is within the Tenth Circuit unless (a) it delivers an Opinion
of Counsel reasonably acceptable to the Rating Agencies to the effect that
OCTAGON GAS SYSTEMS, INC. V. RIMMER, 995 F.2d 948 (10th Cir. 1993) ("Octagon")
is no longer controlling precedent in the Tenth Circuit or (b) state law has
amended the UCC to overrule Octagon.
(m) CHANGE IN NAME, JURISDICTION OF ORGANIZATION, STRUCTURE,
LOCATION, ETC.. Change its name, jurisdiction of organization, identity or
limited liability company or other organizational structure (within the meaning
of Sections 9-503 and/or 9-507 of the UCC of all applicable jurisdictions),
become a "new debtor" (as defined in Section 9-102(a)(56) of the UCC of all
applicable jurisdictions) with respect to a currently effective security
agreement previously entered into by any other Person, or change its "location"
(within the meaning of Section 9-307 of the UCC of all applicable jurisdictions)
without (i) giving 30 days' prior written notice to the Trustee and each Rating
Agency and (ii) taking all actions
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reasonably requested by the Trustee (including but not limited to all filings
and other acts necessary or advisable under the UCC or similar statute of each
relevant jurisdiction) in order to continue the Trust's first priority perfected
ownership or security interest in all Receivables now owned or hereafter
created, all Related Property and all Collections.
(n) CHARTER. Amend or make any change or modification to its
memorandum and articles of association without first satisfying the Rating
Agency Condition (other than an amendment, change or modification made pursuant
to changes in law of the state of its formation or amendments to change the
Company's name (subject to compliance with clause (m) above), resident agent or
address of resident agent).
(o) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Will not add
or terminate any depositary institution, processing company or bank as a Lockbox
Processor, or make any change in the instructions to Obligors regarding payments
to be made to any Lockbox or Lockbox Account, unless the Trustee shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Lockbox Processor or a Lockbox Account or Lockbox, an
executed Lockbox Agreement with respect to the new Lockbox Account, Collection
Account or Lockbox; PROVIDED, HOWEVER, that the Company may make changes in
instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Lockbox Account.
(p) AGGREGATE RECEIVABLES AMOUNT. Will not allow the
Aggregate Receivables Amount to be less than the Aggregate Target Receivables
Amount.
(q) EARLY TERMINATION. The Company will not designate any
"Early Termination" (as defined in any Receivables Sale Agreement), or send any
written notice to any Seller in respect thereof, without the prior written
consent of the Trustee, except with respect to the occurrence of any such "Early
Termination" that automatically arises pursuant to Section 6.1 of any
Receivables Sale Agreement.
ARTICLE III
RIGHTS OF HOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES
EXCEPT TO THE EXTENT EXPRESSLY
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PROVIDED OTHERWISE IN THE
SUPPLEMENT RELATING TO
SERIES 2003-1
Section 3.1 ESTABLISHMENT OF COLLECTION ACCOUNT; CERTAIN
ALLOCATIONS. (a) The Servicer, for the benefit of the Holders as their interests
appear in this Agreement, shall cause to be established and maintained in the
name of the Company with an Eligible Institution or with the corporate trust
department of the Trustee or an affiliate of the Trustee, a segregated trust
account (the "COLLECTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Holders.
Schedule 2, which is hereby incorporated into and made a part of this Agreement,
identifies the Collection Account by setting forth the account number of such
account, the account designation of such account and the name of the institution
with which such account has been established. The Collection Account shall be
divided into individual subaccounts for each Outstanding Series (each,
respectively, a "SERIES COLLECTION SUBACCOUNT" and, collectively, the "SERIES
COLLECTION SUBACCOUNTS") and for the Company (the "COMPANY COLLECTION
SUBACCOUNT").
(b) AUTHORITY OF THE TRUSTEE IN RESPECT OF THE COLLECTION
ACCOUNT AND HOLDERS INTERESTS THEREIN. (i) The Trustee, on behalf of the
Holders, shall have the right to take sole dominion and control of the
Collection Account, including the Series Collection Subaccounts and any
investment subaccount thereof, and all funds and other property from time to
time on deposit therein or credited thereto, pursuant to the terms of a Lockbox
Agreement. If, at any time, the Servicer has actual notice or knowledge that any
institution holding the Collection Account is other than the corporate trust
department of the Trustee or an affiliate of the Trustee, or that the
institution holding the Collection Account has ceased to be an Eligible
Institution, the Servicer shall, with the consent of the Trustee, establish
within 30 days a substitute account therefor with an Eligible Institution,
transfer any cash and/or any instruments to such new account and from the date
any such substitute accounts are established, such account shall be the
Collection Account, provided that such new account shall be first become subject
to a Lockbox Agreement. Neither the Company nor the Servicer, nor any person or
entity claiming by, through or under the Company or Servicer, shall have any
right title or interest in, except to the extent expressly provided under the
Transaction Documents, or any right to withdraw any amount from, the Collection
Account. Pursuant to the authority granted to the Servicer in Section 2.2(a) of
the Servicing Agreement, the Servicer shall have the power, revocable by the
Trustee for cause, to make withdrawals from and payments to the Collection
Account for the purposes of carrying out the Servicer's or the Trustee's duties
hereunder. The Trustee shall not be responsible for funds that are not on
deposit with the Trustee.
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(ii) Each Series of Investor Certificates shall
represent a Fractional Undivided Interest in the Trust as indicated in the
Supplement (including any Enhancement applicable to such Series as
specified in the related Supplement) relating to such Series and the right
to receive Collections and other amounts at the times and in the amounts
specified in this Article III (as supplemented by the Supplement related to
such Series) to be deposited in the Collection Account and any other
accounts maintained for the benefit of the Investor Certificateholders or
paid to the Investor Certificateholders (with respect to all outstanding
Series, the "CERTIFICATEHOLDERS' INTEREST"). The "Exchangeable Company
Interest" shall be the interest in the Trust not represented by any Series
of Investor Certificates then outstanding or Series Subordinated Interests
then in existence, including the right to receive Collections and other
amounts at the times and in the amounts specified in this Article III to be
paid to the Company (the "COMPANY INTEREST"), and each Series Subordinated
Interest, if any, shall be the interest specified as such pursuant to the
related Supplement; PROVIDED, HOWEVER, that no such Exchangeable Company
Interest or Series Subordinated Interest shall include any interest in any
Trust Account or any other accounts maintained for the benefit of the
Investor Certificateholders, except as specifically provided in this
Article III.
(c) ELIGIBLE INVESTMENTS. All amounts from time to time held
in, deposited in or credited to, the Collection Account may be invested by the
Servicer (on behalf of the Trustee) in Eligible Investments. All such
investments shall at all times be and remain credited to an account, which if
applicable, may be a subaccount of the Collection Account (the "SECURITIES
ACCOUNT") subject to a securities control agreement in form and substance
satisfactory to the Trustee. All income or other gain from investment of monies
deposited in or credited to the Securities Account shall be deposited in or
credited to the Securities Account immediately upon receipt, and any loss
resulting from such investment shall be charged to the Securities Account. Funds
on deposit in the Securities Account shall be invested in Eligible Investments
that will mature no later than the Business Day immediately preceding the next
Distribution Date. None of the Trustee, any Agent or any Holder shall be held
liable in any way by reason of any insufficiency in the Securities Account
resulting from any investment loss on any Eligible Investments.
(d) DAILY COLLECTIONS. (i) Promptly following its receipt of
Collections in the form of available funds in the Lockbox Accounts, but in no
event later than the Business Day following such receipt, the Servicer shall
transfer, or cause to be transferred, all Collections on deposit (less the
aggregate amount of set-offs permitted to be retained pursuant to any applicable
Lockbox Agreement) in the
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form of immediately available funds in the Lockbox Accounts directly to the
Collection Account.
(ii) [Intentionally Omitted].
(iii) On each Business Day, the Servicer shall allocate
from Aggregate Daily Collections deposited into the Collection Account
pursuant to subsection (d)(i) above on such Business Day, to the respective
Series Collection Subaccount, an amount equal to the product of (x) the
applicable Invested Percentage for such Outstanding Series and (y) such
Aggregate Daily Collections.
(iv) [Intentionally Omitted].
(v) On each Business Day, except as otherwise
provided in a Supplement, the Servicer shall transfer to the Company
Collection Subaccount from Aggregate Daily Collections deposited into the
Collection Account pursuant to subsection (d)(i) above on such Deposit Date
an amount equal to the aggregate Reinvestment Amount for all Outstanding
Series (less an amount equal to the costs and expenses, if any, incurred by
the Trustee with respect to the sale of the Receivables pursuant 9.1(b) and
reimbursable to the Trustee as provided in Section 8.5), to the extent of
funds or on deposit in the Collection Account on such date after giving
effect to transfers to be made pursuant to Section (d)(iii) above.
(e) [Intentionally Omitted]
(f) ALLOCATIONS FOR THE EXCHANGEABLE COMPANY INTEREST. (i)
Until the commencement and continuance of an Early Amortization Period, on each
Business Day and, after the occurrence and continuance of an Early Amortization
Period and until the Trust Termination Date, on each Distribution Date, after
making all allocations required pursuant to Section 3.1(d), the Servicer shall
transfer to the owner of the Exchangeable Company Interest the remaining amount
on deposit in the Company Collection Subaccount.
(g) SET-OFF. (i) In addition to the provisions of
Section 8.5, if the Company shall fail to make a payment as provided in this
Agreement or any Supplement, the Servicer or the Trustee may set off and apply
any amounts otherwise payable to the Company under any Pooling and Servicing
Agreement. The Company hereby waives demand, notice or declaration of such
set-off and application; PROVIDED that notice will promptly be given to the
Company of such set-
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off; PROVIDED FURTHER that failure to give such notice shall not affect the
validity of such set-off.
(ii) In addition to the provisions of Section 8.5, in
the event the Servicer shall fail to make a payment as provided in any
Pooling and Servicing Agreement, the Trustee may set off and apply any
amounts otherwise payable to the Servicer in its capacity as Servicer under
the Transaction Documents on account of such obligation. The Servicer
hereby waives demand, notice or declaration of such set-off and
application; PROVIDED that notice will promptly be given to the Servicer of
such set-off; PROVIDED FURTHER that failure to give such notice shall not
affect the validity of such set-off.
(h) ALLOCATION AND APPLICATION OF FUNDS. The Servicer shall
apply all Collections with respect to the Receivables as described in this
Article III and in the Supplement with respect to each Outstanding Series. The
Servicer shall pay Collections to the owner of the Exchangeable Company Interest
to the extent such Collections are allocated to the Exchangeable Company
Interest under Section 3.1(f) and as otherwise provided in this Article III.
Notwithstanding anything in this Agreement, any Supplement or any other
Transaction Document to the contrary, to the extent that the Servicer receives
any Required Report and immediately available funds prior to 2:00 p.m., Chicago
time, on any Business Day, the Servicer shall make any applications of funds
required thereby on the same Business Day and otherwise on the next succeeding
Business Day.
THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED
IN THE SUPPLEMENT WITH RESPECT TO EACH SERIES.
SUCH REMAINDER SHALL BE APPLICABLE ONLY TO THE
SERIES RELATING TO THE SUPPLEMENT IN WHICH
SUCH REMAINDER APPEARS.
ARTICLE IV
ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO
ARTICLE V
THE CERTIFICATES AND INTERESTS
Section 5.1 THE CERTIFICATES. The Investor Certificates of each
Series and any Class thereof shall be in fully registered form and shall be
substantially in the form of the exhibits with respect thereto attached to the
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applicable Supplement. The Certificates shall, upon issue, be executed and
delivered by the Company to the Trustee for authentication and redelivery as
provided in Section 5.2. Except as otherwise set forth in the related
Supplement, the Investor Certificates shall be issued in minimum denominations
of $1,000,000 and in integral multiples of $100,000 in excess thereof unless
otherwise specified in any Supplement for any Series and Class. Unless otherwise
specified in any Supplement for any Series, the Investor Certificates shall be
issued upon initial issuance as a single global certificate in an original
principal amount equal to the Initial Invested Amount with respect to such
Series. The Company is hereby authorized to execute and deliver each Certificate
on behalf of the Trust. Each Certificate shall be executed by manual or
facsimile signature on behalf of the Company by a Responsible Officer.
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 Company or the Trustee shall not be rendered invalid, notwithstanding
that such individual has ceased to be so authorized prior to or on the date of
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 be valid for any purpose, unless there appears
on such Certificate a certificate of authentication substantially in the form
provided for herein executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, and such certificate of authentication
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 but failure to do
so shall not render them invalid.
Section 5.2 AUTHENTICATION OF CERTIFICATES. The Trustee shall
authenticate and deliver the initial Series of the Investor Certificates that is
issued upon original issuance, upon the written order of the Company in a form
reasonably satisfactory to the Trustee, to the holders of the initial Series of
Investor Certificates, against payment to the Company of the Initial Invested
Amount. The Investor Certificates shall be duly authenticated by or on behalf of
the Trustee in authorized denominations equal to (in the aggregate) the Initial
Invested Amount and the interests evidenced thereby, together with any Series
Subordinated Interest and the Exchangeable Company Interest, shall constitute
the entire ownership of the Trust. Upon a Company Exchange as provided in
Section 5.10 and the satisfaction of certain other conditions specified therein,
the Trustee shall authenticate and deliver the Certificates of additional Series
(with the designation provided in the applicable Supplement) (or, if provided in
any Supplement, the additional Investor Certificates of an existing Series),
upon the written order of the Company, to the Persons designated in such
Supplement. Upon the order of the Company, the Investor Certificates of any
Series shall be duly authenticated by or on behalf of the Trustee, in authorized
denominations equal to (in the aggregate) the Initial Invested Amount of such
Series of Investor Certificates.
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Section 5.3 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 registrar (which may be the Trustee) (the "Transfer
Agent and Registrar") in accordance with the provisions of Section 8.16 a
register (the "Certificate Register") in which, subject to such reasonable
regulations as the Trustee may prescribe, the Transfer Agent and Registrar shall
provide for the registration of the Investor Certificates and of transfers and
exchanges of the Investor Certificates as herein provided. The Company hereby
appoints the Trustee as the initial Transfer Agent and Registrar for the purpose
of registering the Investor Certificates and transfers and exchanges of the
Investor Certificates as herein provided. The Company, or the Trustee, as agent
for the Company, may revoke such appointment as Transfer Agent and Registrar and
remove the then-acting Transfer Agent and Registrar if the Trustee or the
Company (as applicable) determines in its sole discretion that the then-acting
Transfer Agent and Registrar has failed to perform its obligations under this
Agreement in any material respect. The then-acting Transfer Agent and Registrar
shall be permitted to resign as Transfer Agent and Registrar upon 30 days'
written notice to the Company, the Trustee and the 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 Trustee has
appointed a successor Transfer Agent and Registrar reasonably acceptable to the
Company and such successor Transfer Agent and Registrar has accepted such
appointment. The provisions of Sections 8.1, 8.2, 8.3, 8.5 and 10.19 shall apply
to the Trustee also in its role as Transfer Agent and Registrar for so long as
the Trustee shall act as Transfer Agent and Registrar.
The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.5, for the payment of any reasonable compensation payable to the
Transfer Agent and Registrar for its services under this Section 5.3. The
Company, Trustee and Transfer Agent and Registrar shall agree on such
compensation in writing. The Trustee hereby agrees that, upon the receipt of
such funds from the Company, it shall promptly pay the Transfer Agent and
Registrar such amounts.
Upon surrender for registration of transfer of any Investor
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose, the Company shall execute, and, upon the written
request of the Company, the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Investor
Certificates in authorized denominations of the same Series representing like
aggregate Fractional Undivided Interests and which bear numbers that are not
contemporaneously outstanding.
At the option of an Investor Certificateholder, Investor Certificates
may be exchanged for other Investor Certificates of the same Series in
authorized
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denominations of like aggregate Fractional Undivided Interests, bearing numbers
that are not contemporaneously outstanding, upon surrender of the Investor
Certificates to be exchanged at any such office or agency of the Transfer Agent
and Registrar maintained for such purpose.
Whenever any Investor Certificates of any Series are so surrendered
for exchange, the Company shall execute, and, upon the written request of the
Company, the Trustee shall authenticate and (unless the Transfer Agent and
Registrar is different from the Trustee, in which case the Transfer Agent and
Registrar shall) deliver, the Investor Certificates of such Series 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 substantially
in the form attached to the form of such Investor Certificate and duly executed
by the holder thereof or his attorney-in-fact duly authorized in writing
delivered to the Trustee (unless the Transfer Agent and Registrar is different
from the Trustee, in which case to the Transfer Agent and Registrar) and
complying with any requirements set forth in the applicable Supplement.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require any Investor Certificateholder that is transferring or exchanging one or
more Certificates to pay a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Investor Certificates.
All Investor Certificates surrendered for registration of transfer and
exchange shall be cancelled and disposed of in a customary manner satisfactory
to the Trustee.
The Company shall execute and deliver Certificates to the Trustee or
the Transfer Agent and Registrar in such amounts and at such times as are
necessary to enable the Trustee and the Transfer Agent and Registrar to fulfill
their respective responsibilities under this Agreement and the Certificates.
No interest of any Investor Certificateholder in the Receivables may
be transferred other than by means of a transfer of an Investor Certificate.
(b) The Transfer Agent and Registrar will maintain at its
expense in Chicago, Illinois and, subject to Section 5.3(a), if specified in the
related Supplement for any Series, any other city designated in such Supplement,
an office or offices or agency or agencies where Investor Certificates may be
surrendered for registration or transfer or exchange.
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(c) Unless otherwise stated in any related Supplements,
registration of transfer of Certificates containing a legend relating to
restrictions on transfer of such Certificates (which legend shall be set forth
in the Supplement relating to such Investor Certificates) shall be effected only
if the conditions set forth in the related Supplement are complied with.
Certificates issued upon registration or transfer of, or in exchange
for, Certificates bearing the legend referred to above shall also bear such
legend unless the Company, the Servicer, the Trustee and the Transfer Agent and
Registrar receive an Opinion of Counsel satisfactory to each of them, to the
effect that such legend may be removed.
(d) (i) The Company may not transfer, assign, exchange or
otherwise pledge or convey the Series Subordinated Interest of any Series or the
Exchangeable Company Interest except, with respect to the Exchangeable Company
Interest, pursuant to Section 5.10.
(ii) Neither the Company nor the Servicer shall at any
time participate in the listing of any Targeted Investor Certificate (as
defined below) on an "established securities market" within the meaning of
Section 7704(b)(1) of the Internal Revenue Code and any proposed, temporary
or final treasury regulation thereunder as of the date hereof, including,
without limitation, an over-the-counter or interdealer quotation system
that regularly disseminates firm buy or sell quotations. "TARGETED INVESTOR
CERTIFICATE" shall mean any Certificate representing a right to receive
interest or principal with respect to any Class or Series of Investor
Certificates with respect to which an Opinion of Counsel has not been
rendered that such Certificates will be treated as debt for federal income
tax purposes (it being understood that any Certificate with respect to
which an Opinion of Counsel has been rendered that such Certificate will be
treated either as debt or as an interest in a partnership for federal
income tax purposes shall be a Targeted Investor Certificate).
(e) (i) No transfer of a Targeted Investor Certificate or
grant of a participation therein shall be permitted if (A) such transfer or
grant would cause the number of Targeted Holders (as defined below) to exceed 75
or (B) the transferee or grantee, as the case may be, is a trust, partnership or
"S corporation" (within the meaning of Section 1361(a) of the Code) (a
"FLOW-THROUGH ENTITY"), unless less than 50% of the value of any beneficial
ownership interest in such flow-through entity is attributable to such
flow-through entity's direct or indirect interest in Targeted Investor
Certificates. "TARGETED HOLDER" shall mean each Holder of or participant in
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a Targeted Investor Certificate; PROVIDED, HOWEVER, that any Person holding more
than one interest with respect to the Investor Certificates or the Trust, each
of which separately would cause such Person to be a Targeted Holder, shall be
treated as a single Targeted Holder.
(ii) Any determination by the Transfer Agent and
Registrar (in accordance with the information contained in the Certificate
Register and the certifications made by each transferee and participant
pursuant to the applicable Supplement, upon which information the Transfer
Agent and Registrar may conclusively rely) that the event described in
either clause (i)(A) or (i)(B) of this Section 5.3(e) would occur as the
result of a transfer of a Targeted Investor Certificate or the grant of a
participation therein shall be (X) communicated in writing to the
transferring or granting Investor Certificateholder prior to the effective
date set out in the notice of transfer or participation required by, or
otherwise provided for under, the related Supplement and (Y) binding upon
the parties absent manifest error.
Section 5.4 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 in the form of
a certification by the holder thereof of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be required by them to save the
Trust and each of them harmless, then, in the absence of actual notice to a
Responsible Officer of the Trustee or Transfer Agent and Registrar that such
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and, upon the written request of the Company, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
aggregate Fractional Undivided Interest and bearing a number that is not
contemporaneously outstanding. In connection with the issuance of any new
Certificate under this Section 5.4, the Trustee or the Transfer Agent and
Registrar may require the payment by the Holder of a sum sufficient to cover any
tax or other governmental expenses (including the fees and expenses of the
Trustee and Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 5.4 shall constitute conclusive and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.5 PERSONS DEEMED OWNERS. At all times prior to due
presentation of a Certificate for registration of transfer, the Company, the
Trustee, the Paying Agent, the Transfer Agent and Registrar, any Agent and any
agent of any
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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
Article IV of the related Supplement and for all other purposes whatsoever, and
neither the Trustee, the Paying Agent, the Transfer Agent and Registrar, any
Agent nor any agent of any of them shall be affected by any notice to the
contrary. Notwithstanding the foregoing provisions of this Section 5.5, in
determining whether the holders of the requisite Fractional Undivided Interests
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Certificates owned by the Company, the Servicer or any
Affiliate thereof shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver; only
Certificates which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Certificates so owned by the Company, the
Servicer or any Affiliate thereof which have been pledged in good faith shall
not be disregarded and may be regarded as outstanding 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 Company, the Servicer or an
Affiliate thereof.
Section 5.6 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Investor Certificateholders from the Collection Account (and/or
any other account or accounts maintained for the benefit of Holders as specified
in the related Supplement for any Series) pursuant to Articles III and IV. The
Trustee may revoke such power and remove the 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. Unless
otherwise specified in the related Supplement for any Series and with respect to
such Series, the Paying Agent shall initially be the Trustee and, if the Trustee
so chooses, any co-paying agent chosen by the Trustee. Each Paying Agent shall
have a combined capital and surplus of at least $50,000,000. The Paying Agent
shall be permitted to resign upon 30 days' written notice to the Trustee. In the
event that the Paying Agent shall so resign, the Trustee shall appoint a
successor to act as Paying Agent (which shall be a depositary institution or
trust company) reasonably acceptable to the Company which appointment shall be
effective on the date on which the Person so appointed gives the Trustee written
notice that it accepts the appointment. Any resignation or removal of the Paying
Agent and appointment of successor Paying Agent pursuant to this Section 5.6
shall not become effective until acceptance of appointment by the successor
Paying Agent, as provided in this Section 5.6. The Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Trustee
to execute and deliver to the Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Investor Certificateholders in
trust for the benefit
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of the Investor Certificateholders entitled thereto until such sums shall be
paid to such Holders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trustee. The provisions of Sections 8.1, 8.2,
8.3, 8.5 and 10.19 shall apply to the Trustee also in its role as Paying Agent,
for so long as the Trustee shall act as Paying Agent. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent, if any, unless
the context requires otherwise.
The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.5, for the payment of any reasonable compensation payable to the
Paying Agent for its services under this Section 5.6. The Trustee hereby agrees
that, upon the receipt of such funds from the Company, it shall promptly pay the
Paying Agent such amounts.
Section 5.7 ACCESS TO LIST OF INVESTOR CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Company, the Servicer or the Paying Agent, within ten
Business Days after receipt by the Trustee of a written request therefor from
the Company, the Servicer or the Paying Agent, respectively, in writing, a list
of the names and addresses of the Investor Certificateholders as then recorded
by or on behalf of the Trustee. If three or more Investor Certificateholders of
record or any Investor Certificateholder of any Series or a group of Investor
Certificateholders of record representing Fractional Undivided Interests
aggregating not less than 10% of the Invested Amount of the related Outstanding
Series (the "Applicants") apply in writing to the Trustee, and such application
states that the Applicants desire to communicate with other Investor
Certificateholders of any Series with respect to their rights under this
Agreement or under the Investor Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee, after
having been adequately indemnified by such Applicants for its costs and
expenses, shall transfer or shall cause the Transfer Agent and Registrar to
transmit, such communication to the Investor Certificateholders reasonably
promptly after the receipt of such application.
Every Investor Certificateholder, by receiving and holding an Investor
Certificate, consents to the disclosure of its name and address as provided
above and agrees with the Trustee that neither the Trustee, the Transfer Agent
and Registrar, nor any of their respective agents, officers, directors or
employees shall be held accountable by reason of the disclosure or mailing of
any such information as to the names and addresses of the Investor
Certificateholders hereunder, regardless of the sources from which such
information was derived.
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As soon as practicable following each Record Date, the Trustee shall
provide to the Paying Agent or its designee, a list of Investor
Certificateholders in such form as the Paying Agent may reasonably request.
Section 5.8 AUTHENTICATING AGENT. (a) The Trustee may appoint one or
more authenticating 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, registration of transfer, exchange or
repayment of the Certificates. Whenever reference is made in this Agreement to
the authentication 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 Company.
(b) Any institution succeeding to the corporate trust
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. Upon the receipt by the Trustee of
any such notice of resignation and upon the giving of any such notice of
termination by the Trustee, the Trustee shall immediately give notice of such
resignation or termination to the Company. Any resignation of an authenticating
agent shall not become effective until acceptance of appointment by the
successor authenticating agent as provided in this Section 5.8. The Trustee may
at any time terminate the agency of an authenticating agent by giving notice of
termination to such authenticating agent. Upon receiving 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 Company, the Trustee
promptly shall 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 (other than an Affiliate of the Trustee) shall be appointed
unless reasonably acceptable to the Trustee and the Company.
(d) The Company hereby agrees to provide the Trustee from
time to time sufficient funds, on a timely basis and in accordance with and
subject to Section 8.5, for the payment of any reasonable compensation payable
to each authenticating agent for its services under this Section 5.8. The
Trustee hereby
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agrees that, upon the receipt of such funds from the Company it shall pay each
authenticating agent such amounts.
(e) The provisions of Sections 8.1, 8.2, 8.3 and 8.5 shall
be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 5.8,
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 Second Amended and
Restated Pooling Agreement, dated as of March 28, 2003, among USS
Receivables Company, Ltd., United Stationers Financial Services LLC, as
Servicer, and Bank One, NA (Main Office Chicago), as Trustee.
as Authenticating Agent
for the Trustee
By
--------------------------------
Authorized Signatory"
Section 5.9 TAX TREATMENT. It is the intent of the Servicer, the
Company, the Investor Certificateholders and the Trustee that, for federal,
state and local income and franchise tax purposes, the Investor Certificates be
treated as evidence of indebtedness secured by the Trust Assets and the Trust
not be characterized as a "publicly traded partnership" or an association
taxable as a corporation. The Company and the Trustee, by entering into this
Agreement, and each Investor Certificateholder, by its acceptance of its
Investor Certificate, agree to treat the Investor Certificates for federal,
state and local income and franchise tax purposes as indebtedness. The parties
hereto agree that they shall not cause or permit the making, as applicable, of
any election under Treasury Regulation Section 301.7701-3 whereby the Trust or
any portion thereof would be treated as a corporation for federal income tax
purposes and, except as required by Section 8.11, shall not file tax returns or
obtain any federal employer identification number for the Trust but shall treat
the Trust as a security device for such purposes. The provisions of this
Agreement and all related Transaction Documents shall be construed to further
these intentions of the parties. This SECTION 5.9 shall survive the termination
of this Agreement and shall be binding on all transferees of any of the
foregoing persons.
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Section 5.10 COMPANY EXCHANGES. (a) The Company may, in accordance
with the procedures set forth below, call for an adjustment of the Exchangeable
Company Interest in exchange for (i) an increase in the Invested Amount of a
Class of Investor Certificates of an Outstanding Series and an increase in the
related Series Subordinated Interest or (ii) one or more newly issued Series of
Investor Certificates and the related newly created Series Subordinated Interest
(a "NEW SERIES") (any such exchange, a "COMPANY EXCHANGE"). The Company may
perform a Company Exchange by notifying the Trustee, in writing at least 30 days
in advance (an "EXCHANGE NOTICE") of the date upon which the Company Exchange is
to occur (an "EXCHANGE DATE"). Any Exchange Notice shall state the designation
of any Series (and/or Class, if applicable) to be issued (or supplemented) on
the Exchange Date and, with respect to each such Series (and/or Class, if
applicable): (a) its additional or Initial Invested Amount, as the case may be,
if any, which in the aggregate at any time may not be greater than the current
value of the Exchangeable Company Interest, if any, at such time, (b) its
Certificate Rate (or the method for allocating interest payments or other cash
flow to such Series), if any, and (c) whether such New Series will be a
companion series to an Outstanding Series (an "EXISTING COMPANION SERIES"; and
together with the New Series, a "COMPANION SERIES"). On the Exchange Date, the
Trustee shall, upon the written order of the Company, authenticate and deliver
any Certificates evidencing an increase in the Invested Amount of a Class of
Investor Certificates or a newly issued Series only upon delivery by the Company
to the Trustee of the following (together with the delivery by the Company to
the Trustee of any additional agreements, instruments or other documents as are
specified in the related Supplement): (a) a Supplement executed by the Company
and specifying the Principal Terms of such Series (PROVIDED that no such
Supplement shall be required for any increase in the Invested Amount of a Class
of Investor Certificates unless it is so required by the related Supplement),
(b) a Tax Opinion addressed to the Trustee and the Trust, (c) a General Opinion
addressed to the Trustee and the Trust and (d) written confirmation from each
Rating Agency that the Company Exchange will not result in the Rating Agency's
reducing or withdrawing its rating on any then Outstanding Series rated by it.
Upon the delivery of the items listed in clauses (a) through (d) above, the
existing Exchangeable Company Interest and the applicable Series Subordinated
Interests, as the case may be, shall be deemed cancelled, the Trustee shall
issue the applicable Series of Investor Certificates, dated the Exchange Date,
and the applicable Series Subordinated Interests and the new Exchangeable
Company Interest shall be deemed duly created, in each case as provided above.
There is no limit to the number of Company Exchanges that the Company may
perform under this Agreement. If the Company shall, on any Exchange Date, retain
any Investor Certificates issued on such Exchange Date, it shall, prior to
transferring any such Certificates to another Person, obtain a Tax Opinion.
Additional restrictions relating to a Company Exchange may be set forth in any
Supplement.
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(b) Upon any Company Exchange, the Trustee, in accordance
with the written directions of the Company, shall issue to the Company under
Section 5.1, for execution and redelivery to the Trustee for authentication
under Section 5.2, (i) one or more Certificates representing an increase in the
Invested Amount of an Outstanding Series or (ii) one or more new Series of
Investor Certificates. Any such Certificates shall be substantially in the form
specified in the applicable Supplement and each shall bear, upon its face, the
designation for such Series to which each such certificate belongs so selected
by the Company.
(c) In conjunction with a Company Exchange, the parties
hereto shall, except as otherwise provided in subsection (a) above, execute a
supplement to this Agreement, which shall define, with respect to any additional
Investor Certificates or newly issued Series, as the case may be: (i) its name
or designation, (ii) its additional or initial principal amount, as the case may
be (or method for calculating such amount), (iii) its coupon rate (or formula
for the determination thereof), (iv) the interest payment date or dates and the
date or dates from which interest shall accrue, (v) the method for allocating
Collections to Holders, including the applicable Investor Percentage, (vi) the
names of any accounts to be used by such Series and the terms governing the
operation of any such accounts, (vii) the issue and term of a letter of credit
or other form of Enhancement, if any, with respect thereto, (viii) the terms, if
any, on which the Certificates of such Series may be repurchased by the Company
or may be remarketed to other investors, (ix) the Series Termination Date, (x)
any deposit account maintained for the benefit of Holders, (xi) the number of
Classes of such Series, and if more than one Class, the rights and priorities of
each such Class, (xii) the rights of the owner of the Exchangeable Company
Interest that have been transferred to the holders of such Series, (xiii) the
designation of any Series Accounts and the terms governing the operation of any
such Series Accounts, (xiv) provisions acceptable to the Trustee concerning the
payment of the Trustee's fees and expenses and (xv) other relevant terms (all
such terms, the "PRINCIPAL TERMS" of such Series). The Supplement executed in
connection with the Company Exchange shall contain administrative provisions
which are reasonably acceptable to the Trustee.
(d) In order for a New Series to be part of a Companion
Series, the Supplement for the related Existing Companion Series must provide
for or permit the Amortization Period to commence on the Issuance Date for such
New Series, and on or prior to the Issuance Date for the New Series the Servicer
and the Company shall take all actions, if any, necessary to cause the
Amortization Period for such Existing Companion Series to commence on such
Issuance Date. The proceeds from the issuance of the New Series shall be
deposited in the applicable Series Collection Sub-account and the Company shall,
on the Issuance Date for such New Series, deposit into the applicable Series
Collection Sub-account the amount of interest that will accrue on the New Series
over a period specified in the related
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Supplement for such New Series. On each day on which principal is paid to the
holders of the Existing Companion Series, the Trustee shall distribute to the
Company from the applicable Series Collection Sub-account of the New Series an
amount (up to the amount of available funds in such account) equal to the amount
distributed on such day to the Investor Certificateholders of any Existing
Companion Series; PROVIDED that, after giving effect to such distributions, the
Aggregate Receivables Amount shall equal or exceed the sum of (i) the Target
Receivables Amount with respect to such Existing Companion Series on such day,
plus (ii) the Target Receivables Amount with respect to the New Series on such
day, plus (iii) the Target Receivables Amount with respect to any other
Outstanding Series on such day; PROVIDED FURTHER that the Trustee may
conclusively rely on the calculations of the Servicer of such amounts.
(e) Except as specified in any Supplement for a related
Series, all Investor Certificates of any Series shall be equally and ratably
entitled as provided herein to the benefits hereof 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
the applicable Supplement.
Section 5.11 BOOK-ENTRY CERTIFICATES. If specified in any related
Supplement, the Investor Certificates, or any portion thereof, upon original
issuance, shall be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates, to be delivered to the depository
specified in such Supplement (the "DEPOSITORY") which shall be the Clearing
Agency, specified by, or on behalf of, the Company for such Series. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of such Clearing Agency, and no Certificate Book-Entry
Holder will receive a definitive certificate representing such Certificate
Book-Entry Holder's interest in the Investor Certificates, except as provided in
Section 5.13. Unless and until definitive, fully registered Investor
Certificates ("DEFINITIVE CERTIFICATES") have been issued to Holders pursuant to
Section 5.13 or the related Supplement:
(a) the provisions of this Section 5.11 shall be in full
force and effect;
(b) the Company, the Servicer and the Trustee may deal with
each Clearing Agency for all purposes (including the making of distributions on
the Investor Certificates) as the Holder without respect to whether there has
been any actual authorization of such actions by the Certificate Book-Entry
Holders with respect to such actions;
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(c) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Agreement, the provisions of this
Section 5.11 shall control; and
(d) the rights of Certificate Book-Entity Holders shall be
exercised only through the Clearing Agency and the related Clearing Agency
Participants and shall be limited to those established by law and agreements
between such related Certificate Book-Entry Holders and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Depository Agreement,
the initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal and
interest on the Investor Certificates to such Clearing Agency Participants.
Notwithstanding the foregoing, no Class or Series of Investor Certificates may
be issued as Book Entry Certificates (but, instead, shall be issued as
Definitive Certificates) unless at the time of issuance of such Class or Series
the Company and the Trustee receive an opinion of independent counsel that the
Certificates of such Class or Series will be treated as indebtedness for federal
income tax purposes.
Section 5.12 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Holders is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Certificate Book-Entry Holders
pursuant to Section 5.13, the Trustee shall give all such notices and
communications specified herein to be given to the Investor Certificateholders
to the Clearing Agencies.
Section 5.13 DEFINITIVE CERTIFICATES. If (a) (i) the Company advises
the Trustee in writing that any Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the applicable Depository
Agreement, and (ii) the Company is unable to locate a qualified successor, (b)
the Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after the
occurrence of a Servicer Default, Certificate Book-Entry Holders representing
Fractional Undivided Interests aggregating more than 50% of the Invested Amount
held by such Certificate Book-Entry Holders of each affected Series then issued
and outstanding advise the Clearing Agency through the Clearing Agency
Participants in writing, and the Clearing Agency shall so notify the Trustee,
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Book-Entry Holders, the Trustee
shall notify the Clearing Agency, which shall be responsible to notify the
Certificate Book-Entry Holders, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Book-Entry Holders
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Clearing Agency, accompanied by registration
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instructions from the Clearing Agency for registration, the Trustee shall issue
the Definitive Certificates. Neither the Company 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.
ARTICLE VI
OTHER MATTERS RELATING
TO THE COMPANY
Section 6.1 LIABILITY OF THE COMPANY. The Company shall be liable
for all obligations, covenants, representations and warranties of the Company
arising under or related to this Agreement or any Supplement. Except as provided
in the preceding sentence and otherwise herein, the Company shall be liable only
to the extent of the obligations specifically undertaken by it hereunder.
Section 6.2 LIMITATION ON LIABILITY OF THE COMPANY. Except as
provided in Sections 6.1 or otherwise provided herein, neither the Company nor
any of its directors or officers or employees or agents, in their capacity as
transferor of, or in connection with the transfer of, Receivables and Related
Property hereunder, shall be under any liability to the Trust, the Trustee, the
Holders or any other Person for any action taken or for refraining from the
taking of any action pursuant to this Agreement, whether or not such action or
inaction arises from express or implied duties under this Agreement; PROVIDED,
HOWEVER, that this provision shall not protect the Company against any liability
which would otherwise be imposed by reason of willful misconduct, bad faith or
gross negligence in the performance of any duties or by reason of reckless
disregard of any obligations and duties hereunder; PROVIDED, FURTHER, that this
provision shall not protect any such director, officer, employee or agent
against any liability which would otherwise be imposed on such Person pursuant
to applicable law or the Company's memorandum or articles of association by
reason of willful misconduct, bad faith or gross negligence in the performance
of such Person's duties or by reason of reckless disregard of such Person's
obligations and duties hereunder. The Company and any director or officer or
employee or agent of the Company may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person (other than, in
the case of the Company, the Company or the Servicer) respecting any matters
arising hereunder.
ARTICLE VII
EARLY AMORTIZATION EVENTS
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Section 7.1 EARLY AMORTIZATION EVENTS. Unless modified with respect
to any Series of Investor Certificates by any related Supplement, if any one of
the following events (each, an "EARLY AMORTIZATION EVENT") shall occur:
(a) (i) the Company shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its assets, or the Company shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Company any case, proceeding or other action of a nature
referred to in clause (i) above which remains undismissed, undischarged or
unbonded for a period of 5 days or an order for relief, decree, adjudication or
appointment shall occur; or (iii) there shall be commenced against the Company
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief; or (iv) the Company shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Company shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due;
(b) the Trust or the Company shall become an "investment
company" within the meaning of the Investment Company Act of 1940, as amended;
(c) the Trust is characterized for federal income tax
purposes as a "publicly traded partnership" or as an association taxable as a
corporation;
(d) the Trustee shall be appointed as Successor Servicer
pursuant to Section 6.2(b) of the Servicing Agreement; or
(e) [Intentionally Omitted];
(f) there shall have been a breach of the covenant contained
in Section 5.1(u) of either of the Receivables Sale Agreements, without regard
for any applicable grace or cure period.
then: (i) in the case of the occurrence of an event described in clause (a)(ii)
above, the Trustee may, and at the direction of Investor Certificateholders
evidencing more than 50% of the Aggregate Invested Amount with respect to all
Outstanding Series,
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shall, by written notice, declare that an early amortization period has
commenced with respect to all Outstanding Series as of the date of such notice;
(ii) in the case of the occurrence of any other event described above in Section
7.1(a), without any notice or other action on the part of the Trustee or any
Investor Certificateholder an early amortization period shall commence
immediately upon the occurrence of such event (any such period under clause (i)
or (ii), an "Early Amortization Period"). The Servicer shall notify each Rating
Agency and the Trustee in writing of the occurrence of any Early Amortization
Period, specifying the cause thereof. Further, upon the commencement against the
Company of a case, proceeding or other action described in clause (a)(ii) or
(iii) above, the Company shall not purchase Receivables from any Seller, or
transfer Receivables to the Trust, until such time, if any, as such case,
proceeding or other action is vacated, discharged, or stayed or bonded pending
appeal.
Additional Early Amortization Events and the consequences thereof may
be set forth in each Supplement with respect to the Series relating thereto.
Section 7.2 ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS.
If an Early Amortization Event specified in paragraph (a) of Section 7.1(a) with
respect to the Company occurs, the Company shall immediately cease to transfer
Receivables to the Trust and shall promptly give notice to the Trustee of such
occurrence. Notwithstanding any cessation of the transfer to the Trust of
additional Receivables, Receivables transferred to the Trust prior to the
occurrence of such Insolvency Event and Collections in respect of such
Receivables and interest, whenever created, accrued in respect of such
Receivables, shall continue to be a part of the Trust.
ARTICLE VIII
THE TRUSTEE
Section 8.1 DUTIES OF TRUSTEE. (a) The Trustee, prior to the
occurrence of a Servicer Default or Early Amortization Event of which a
Responsible Officer of the Trustee has actual knowledge and after the curing of
all Servicer Defaults and Early Amortization Events which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in the Pooling and Servicing Agreements or any Supplement and no implied
covenants or obligations shall be read into such Pooling and Servicing
Agreements against the Trustee. After the occurrence of a Servicer Default or
Early Amortization Event to the actual knowledge of a Responsible Officer of the
Trustee (which has not been cured or waived), the Trustee shall exercise such of
the rights and powers vested in it in its capacity as Trustee by any Pooling and
Servicing Agreement and any Supplement and shall use the same degree of care and
skill in their exercise as a
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prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. The provisions of this Section shall be applicable to
the Trustee in its capacity as Trustee hereunder. If the Trustee shall have
succeeded to the obligations of the Servicer, the provisions of the Servicing
Agreement shall govern the actions of the Trustee as Successor Servicer. Without
limiting the foregoing, the Trustee is hereby authorized (and, by its acceptance
of a Certificate or an interest in the Trust, each Holder hereby agrees) to
enter into the Intercreditor Agreement.
(b) The Trustee may conclusively rely as to the truth of the
statements and the correctness of the opinions expressed therein upon
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and believed by it to be genuine and
to have been signed or presented to it pursuant to any Pooling and Servicing
Agreement by the proper party or parties and the Trustee shall not be
responsible for the accuracy of or verification of any information contained in
any report, including any calculation contained therein, provided to it pursuant
to this Agreement; provided in the case of any of the above which are
specifically required to be furnished to the Trustee pursuant to any provision
of the Pooling and Servicing Agreements, the Trustee shall, subject to Section
8.2, examine them to determine whether they substantially conform to the
requirements of this Agreement.
(c) Subject to Section 8.1(a), no provision of this
Agreement or any Supplement shall be construed to relieve the Trustee, from
liability for its own grossly negligent action, its own grossly negligent
failure to act or its own misconduct; provided, however, that:
(i) The Trustee shall not in its individual capacity
be liable for an error of judgment unless it shall be proved that the
Trustee was grossly negligent, or acted in bad faith, in ascertaining the
pertinent facts;
(ii) The Trustee shall not in its individual capacity
be liable with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with this Agreement or at the direction
of the Servicer or the holders of Investor Certificates evidencing in
excess of 50% (or such lesser percentage as set forth in any applicable
provision) of the Aggregate Invested Amount;
(iii) The Trustee shall not be charged with knowledge
of any failure by the Servicer to comply with any of its obligations,
unless a Responsible Officer of the Trustee receives written notice of such
failure from the Servicer, any Agent or any Investor Certificateholder;
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(iv) The Trustee shall not be charged with knowledge
of a Servicer Default or Early Amortization Event unless a Responsible
Officer shall have received written notice of such default or event from
the Servicer, any Agent or any Investor Certificateholder. In the absence
of receipt of such notice, the Trustee may conclusively assume that there
is no Servicer Default or Early Amortization Event;
(v) So long as the Trustee has followed the
instructions of the Servicer, the Trustee shall not in any way be held
liable by reason of any insufficiency in any Account or subaccount thereof
held by or on behalf of the Trustee resulting from any investment loss on
any Eligible Investment included therein; and
(vi) The Trustee shall have no duty to monitor the
performance of the Servicer, nor shall it have any liability in connection
with malfeasance or nonfeasance by the Servicer. The Trustee shall have no
liability in connection with compliance of the Servicer or the Company with
statutory or regulatory requirements related to the Receivables.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties under any Pooling and Servicing Agreement or in the exercise of
any of its rights or powers, if the Trustee has reason to believe that the
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it (to the Trustee's satisfaction), and none of the provisions
contained in any Pooling and Servicing Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any
obligations of the Servicer under such Agreement 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 Servicer in accordance with the terms of
such Agreement.
(e) Except as expressly provided in any Pooling and
Servicing Agreement, the Trustee shall have no power to vary the corpus of the
Trust.
(f) [Intentionally Omitted].
(g) [Intentionally Omitted].
(h) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.1, the Trustee shall have no
duty (i)
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to see to any insurance with respect to the Trust Assets, or (ii) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust Assets other than from funds available in the
Collection Account.
(i) The right of the Trustee to perform its obligations
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its gross negligence or willful
misconduct in the performance of such act.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust created hereby or the powers
granted hereunder.
Section 8.2 RIGHTS OF THE TRUSTEE. Except as otherwise provided in
Section 8.1:
(a) The Trustee may conclusively rely on and shall be
protected in acting on, or in refraining from acting in accord with, any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, note or other paper or document believed by it
to be genuine and to have been signed or presented to it pursuant to any Pooling
and Servicing Agreement by the proper party or parties;
(b) The Trustee may consult with counsel of its choice (at
the Company's expense) and any Opinion of Counsel or any advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by any Pooling and Servicing Agreement, or
to institute, conduct or defend any litigation hereunder or in relation hereto,
at the request, order or direction of any of the Holders, pursuant to the
provisions of any Pooling and Servicing Agreement, unless such Holders shall
have offered to the Trustee security or indemnity to the Trustee's satisfaction
against the costs, expenses and liabilities which may be incurred therein or
thereby; provided, however, that nothing contained herein shall relieve the
Trustee of the obligations, upon the occurrence of a Servicer Default or Early
Amortization Event of which a Responsible Officer of the Trustee has written
notice (which has not been cured), to exercise such of the rights and powers
vested in it by any Pooling and Servicing Agreement, and to use the same degree
of care and skill in their exercise as a prudent
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person would exercise or use under the circumstances in the conduct of such
person's own affairs. The right of the Trustee to perform its obligations
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act;
(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 any
Pooling and Servicing Agreement; provided that the Trustee shall be liable for
its gross negligence or willful misconduct;
(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, direction, order,
approval, bond, note or other paper or document, or to recompute the amount of
any allocations or distributions contained in any direction from the Servicer
provided for under the Agreement, unless requested in writing so to do by the
holders of Investor Certificates evidencing Fractional 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 such holders of Investor Certificates shall reimburse the Trustee for any
reasonable expense resulting from any such investigation requested by them;
provided, further, that the Trustee shall be entitled to make such further
inquiry or investigation into such facts or matters as it may reasonably see
fit, and if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books and records of the
Company pursuant to Section 2.7(d), personally or by agent or attorney, at the
sole cost and expense of the Company;
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
affiliates, agents or attorneys or a custodian or nominee, and the Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such affiliate, agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(g) The Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the Receivables or
the Accounts for the purpose of establishing the presence or absence of defects,
the compliance by the Company with its representations and warranties or for any
other purpose; and
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(h) In the event that the Trustee is also acting as Paying
Agent or Transfer Agent and Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article VIII shall also be afforded to
such Paying Agent or Transfer Agent and Registrar.
Section 8.3 TRUSTEE NOT LIABLE FOR RECITALS IN CERTIFICATES. The
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of authentication on
the Certificates). The Trustee makes no representations as to the validity or
sufficiency of any Pooling and Servicing Agreement 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 Company of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Company in
respect of the Receivables or deposited in or withdrawn from the Accounts or
other accounts hereafter established to effectuate the transactions contemplated
herein and in accordance with the terms of any Pooling and Servicing Agreement.
The Trustee shall not be accountable for the use or application by the
Servicer of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Servicer in respect of the
Receivables or deposited in or withdrawn from the Accounts or any Lockbox by or
at the direction of the Servicer or the Lockbox Processor, in each case unless
the Trustee, acting in its capacity as Successor Servicer, itself makes such use
or application. The Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable.
Section 8.4 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity (a) may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee
and (b) may transact any banking and trust business with the Company, the
Servicer or any Seller as it would were it not the Trustee.
Section 8.5 TRUSTEE'S FEES AND EXPENSES. The Trustee shall be
entitled to reimbursement from the Servicer or the Company upon the Trustee's
request for all reasonable expenses (including, without limitation, expenses
incurred in connection with notices, requests for documentation or other
communications to or directions from Holders), disbursements, losses,
liabilities, damages and advances incurred or made by the Trustee in accordance
with any of the provisions of any Pooling and Servicing Agreement or by reason
of its status as Trustee under any Pooling and Servicing Agreement (including
the reasonable fees and expenses of its agents, any co-trustee and counsel)
except any such expense, disbursement, loss, liability, damage or advance as may
arise from its gross negligence or bad faith or
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willful misconduct. Notwithstanding anything in this Agreement to the contrary,
in no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action. The Trustee shall be entitled to
reimbursement for any reasonable out-of-pocket costs or expenses incurred in
connection with the review, negotiation, preparation, execution and delivery of
any of the Transaction Documents or in connection with the issuance of any
Certificates on the Initial Closing Date. To the extent that the Trustee has not
been paid for any of the foregoing items, the Trustee shall be entitled to be
paid for such items from amounts which otherwise would be distributable to the
Company under Article III of this Agreement. In addition, to the extent not so
reimbursed, the Certificateholders shall reimburse and indemnify the Trustee for
such amounts ratably in accordance with their pro rata shares of the Aggregate
Invested Amount and for expenses incurred in connection with the administration
and enforcement of this Agreement and the other Transaction Documents. If the
Trustee is appointed Successor Servicer in accordance with the Servicing
Agreement, the Trustee, in its capacity as Successor Servicer, shall also be
entitled to be paid the Servicing Fee and any other compensation to which the
Servicer is expressly entitled hereunder. The provisions of this Section 8.5
shall apply to the reasonable expenses, disbursements and advances made or
incurred by the Trustee, or any other Person, in its capacity as liquidating
agent, to the extent not otherwise paid. The covenants and agreements contained
in this Section 8.5 (including, without limitation, the covenants to pay the
expenses, disbursements, losses, liabilities, damages and advances provided for
in this Section 8.5) shall survive the termination of any Pooling and Servicing
Agreement and shall be binding, as applicable, on (i) the Servicer and any
Successor Servicer and (ii) the Company.
Section 8.6 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state thereof and authorized
under such laws to exercise corporate trust powers, having (or having a holding
company parent with) a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purpose of this Section 8.6, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.6, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.7.
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Section 8.7 RESIGNATION OR REMOVAL OF TRUSTEE. (a) Subject to
paragraph (c) below, the Trustee may at any time resign and be discharged from
the trust hereby created by giving written notice thereof to the Company, the
Servicer and the Rating Agencies. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. 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
acceptable to the Company (which acceptance will not unreasonably be withheld);
provided that such right of the Company to approve a successor trustee shall
terminate upon the occurrence of an Early Amortization Event.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.6 hereof and shall fail to resign
after written request therefor by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
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
Company 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.
(c) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 8.7 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 8.8.
(d) The obligations of the Company described in Section 8.5
hereof and the obligations of the Servicer described in Section 8.5 hereof and
Section 5.2 of the Servicing Agreement shall survive the removal or resignation
of the Trustee as provided in this Agreement.
(e) No Trustee under this Agreement shall be personally
liable for any action or omission of any successor trustee.
Section 8.8 SUCCESSOR TRUSTEE. (a) Any successor trustee appointed
as provided in Section 8.7 shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor trustee, without any further act, deed
or
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conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
trustee all documents or copies thereof, at the expense of the Servicer, and
statements held by it hereunder; and the Company and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor trustee all such rights, power, duties and obligations.
(b) No successor trustee shall accept appointment as
provided in this Section 8.8 unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 8.6.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.8, such successor trustee shall mail notice of such
succession hereunder to each Rating Agency and to all Holders at their addresses
as shown in the Certificate Register.
Section 8.9 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
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.6, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee (unless the Trustee is Bank One, NA (Main
Office Chicago)) shall promptly give notice (except to the extent prohibited
under any Requirement of Law or Contractual Obligation), but in no event less
than ten days prior to any such merger or consolidation, to the Company, the
Servicer and the Rating Agencies upon any such merger or consolidation of the
Trustee.
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions of any Pooling and Servicing Agreement, at
any time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust may at the time be located, the Trustee shall
have the power and may execute and deliver all instruments to appoint one or
more persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Holders, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor
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trustee under Section 8.6 and no notice to Holders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.8. The Trustee
shall promptly notify each Rating Agency of the appointment of any co-trustee.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred 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 statute of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the 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 VIII. 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 any Pooling and Servicing Agreement, specifically including every provision
of any Pooling and Servicing Agreement 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 thereof given to the Servicer and the
Company.
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(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 any Pooling and Servicing Agreement on its behalf and in its name. If
any separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 8.11 TAX RETURNS. In the event the Trust shall be required to
file tax returns, the Company shall prepare and file or shall cause to be
prepared and filed (including, without limitation, by the Servicer) any tax
returns required to be filed by the Trust and shall remit such returns to the
Trustee for signature at least five Business Days before such returns are due to
be filed. The Trustee is hereby authorized to sign any such return on behalf of
the Trust. The Company shall also prepare or shall cause to be prepared
(including, without limitation, by the Servicer) all tax information required by
law to be distributed to Holders and shall deliver such information to the
Trustee at least five Business Days prior to the date it is required by law to
be distributed to the Holders. The Trustee, upon written request, will furnish
the Company, or the Company's designee, 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. In no
event shall the Trustee in its individual capacity be liable for any
liabilities, costs or expenses of the Trust, the Holders, the Company or the
Servicer arising under any tax law or regulation, including, without limitation,
federal, state or local income or excise taxes or any other tax imposed on or
measured by income (or any interest or penalty with respect thereto or arising
from any failure to comply therewith) and the Company hereby indemnifies and
holds the Trust harmless for any such liabilities, costs and expenses.
Section 8.12 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES. All rights of action and claims under any Pooling and Servicing
Agreement 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 proceeding 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 benefit of the Holders in respect of which such judgment has been
obtained, in the manner specified in Article III hereof.
Section 8.13 SUITS FOR ENFORCEMENT. If a Servicer Default shall occur
and be continuing, the Trustee may, as provided in Section 6.1 of the Servicing
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Agreement, proceed to protect and enforce its rights and the rights of the
Holders under this Agreement or any other Transaction Document by suit, action
or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or any
other Transaction Document or in aid of the execution of any power granted in
this Agreement or any other Transaction Document 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 Holders. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Investor Certificateholder any plan of reorganization, arrangement, adjustment
or composition affecting the Certificates or the rights of any holder thereof,
or authorize the Trustee to vote in respect of the claim of any Investor
Certificateholder in any such proceeding.
Section 8.14 RIGHTS OF INVESTOR CERTIFICATEHOLDERS TO DIRECT TRUSTEE.
Investor Certificateholders evidencing more than 50% of the Invested Amount of
any Series affected by the conduct of any proceeding or the exercise of any
right conferred on the Trustee shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; PROVIDED, HOWEVER,
that, subject to Section 8.1, 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 in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceedings so directed would be illegal or expose it to
personal liability or be unduly prejudicial to the rights of Investor
Certificateholders not party to such direction; and PROVIDED, FURTHER, that
nothing in any Pooling and Servicing Agreement 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 Investor Certificateholders.
Section 8.15 TRUSTEE TO DIRECT COMPANY. Subject to Section 8.14
above, the Trustee on behalf of the Investor Certificateholders shall direct the
Company as follows:
(a) pursuant to Section 9.13 of the USFS Receivables Sale
Agreement, to direct USFS to agree to or deny the request of any Subsidiary of
United Stationers Inc. desiring to become an additional Seller under the USSC
Receivables Sale Agreement pursuant to Section 9.13 thereof; PROVIDED, HOWEVER,
that any action by the Trustee pursuant to this Section 8.15 shall be
conditioned upon the Trustee's receipt of any written request from a Subsidiary
of United Stationers Inc. delivered in accordance with Section 9.13 of the USSC
Receivables Sale Agreement.
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(b) pursuant to Section 9.14 of the USFS Receivables Sale
Agreement and subject to the second proviso of Section 9.14(b) of the USSC
Receivables Sale Agreement, to direct USFS to consent to or deny any Seller
Termination Request made pursuant to Section 9.14(b) of the USSC Receivables
Sale Agreement.
Section 8.16 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 the Pooling and Servicing Agreements may be served. The Trustee
will give prompt written notice to the Company, the Servicer and the Holders of
any change in the location of the Certificate Register or any such office or
agency.
Section 8.17 LIMITATION OF LIABILITY. The Certificates are executed
by the Trustee, not in its individual capacity but solely as Trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it by
this Agreement. Each of the undertaking and agreements made on the part of the
Trustee in the Certificates is made and intended not as a personal undertaking
or agreement by the Trustee but is made and intended for the purpose of binding
only the Trust.
ARTICLE IX
TERMINATION
Section 9.1 TERMINATION OF TRUST. The Trust and the respective
obligations and responsibilities of the Company, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee to make payments to
Holders as hereafter set forth or of the Company to prepare or cause to be
prepared and filed tax or information reports as provided in Section 8.11
hereof) shall terminate, except with respect to any such obligations or
responsibilities expressly stated to survive such termination, on the earliest
of (i) April 1, 2018 (ii) at the option of the Company upon 10 Business Day's
prior written notice, at any time where the Aggregate Invested Amount is zero
(unless an Early Amortization Event as specified in Section 7.1 of this
Agreement shall have occurred and be continuing, in which case the Company shall
be deemed to elect to terminate the Trust pursuant to this clause (ii)) and
(iii) upon completion of distribution of the amounts referred to in Section
7.2(b) (the "TRUST TERMINATION DATE").
Section 9.2 CLEAN-UP CALL AND FINAL TERMINATION DATE OF INVESTOR
CERTIFICATES OF ANY SERIES. (a) On the Distribution Date during the Amortization
Period with respect to any Series on which the Invested Amount (or such other
amount as may be set forth in the related Supplement) of such Series is reduced
to an amount equal to or less than the Clean-Up Call Percentage of the Invested
Amount
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for such Series as of the day preceding the beginning of such Amortization
Period (or such other amount as may be set forth in the related Supplement), the
Servicer shall have the option to repurchase, and to the extent set forth in the
related Supplement, shall repurchase, the entire Certificateholders' Interest of
such Series, at a purchase price equal to (i) the outstanding Invested Amount of
the Investor Certificates of such Series PLUS (ii) accrued and unpaid interest
through the date of such purchase (after giving effect to any payment of
principal and monthly interest on such date of purchase) PLUS (iii) all other
amounts payable to all Investor Certificateholders of such Series under the
related Supplement (such purchase price, the "CLEAN-UP CALL REPURCHASE PRICE").
The amount of the Clean-Up Call Repurchase Price will be deposited into the
Collection Account for credit to the Series Collection Subaccount for such
Series on the Business Day prior to such Distribution Date in immediately
available funds and will be passed through in full to the applicable Investor
Certificateholders. Following any such repurchase, such Certificateholders'
Interest in the Trust Assets shall terminate and such interest therein will be
allocated to the Company Interest and such Holders will have no further rights
with respect thereto. In the event that the Servicer fails for any reason to
deposit the Clean-Up Call Repurchase Price for such Receivables, the
Certificateholders' Interest in the Receivables and the other Trust Assets will
continue and monthly payments will continue to be made to the Holders.
(b) The amount deposited pursuant to Section 9.2(a) shall be
paid to the Investor Certificateholders of the related Series pursuant to
Article III on the Distribution Date following the date of such deposit. All
Certificates of a Series which are purchased by the Servicer pursuant to Section
9.2(a) shall be delivered by the Servicer upon such purchase to, and be canceled
by (in accordance with the written directions of the Servicer), the Transfer
Agent and Registrar and be disposed of in a manner satisfactory to the Trustee
and the Servicer.
Section 9.3 FINAL PAYMENT WITH RESPECT TO ANY SERIES. (a) Written
notice of any termination, specifying the Distribution Date upon which the
Investor Certificateholders of any Series may surrender their Investor
Certificates for payment of the final distribution with respect to such Series
and cancellation, shall be given (subject to at least 30 days' (or such shorter
period as is acceptable to the Trustee as determined in its sole and absolute
discretion) prior written notice from the Servicer to the Trustee containing all
information required for the Trustee's notice) by the Trustee to Investor
Certificateholders of such Series, mailed not later than the fifth Business Day
of the month of such final distribution and specifying (i) the Distribution Date
upon which final payment of the Investor Certificates will be made upon
presentation and surrender of Investor Certificates at the office or offices
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Investor
Certificates at the
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office or offices therein specified. The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in Section 4.3 of the
Servicing Agreement covering the period during the then current calendar year
through the date of such notice. 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 Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
Section 9.1(a) or the occurrence of the Series Termination Date with respect to
any Series pursuant to Section 9.2, all funds then on deposit in the Collection
Account (but only to the extent necessary to pay all outstanding and unpaid
amounts to Certificateholders) 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 Certificateholders upon surrender of their Certificates in
accordance with the terms hereof. Any Certificate not surrendered on the date
specified in Section 9.3(a)(i) shall cease to accrue any interest provided for
such Certificate from and after such date. In the event that all of the Investor
Certificateholders shall not surrender their Certificates for cancellation
within six months after the date specified in the above mentioned written
notice, the Trustee shall give a second written notice to the remaining Investor
Certificateholders of such Series to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Investor Certificateholders of such Series 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. The
Trustee and the Paying Agent shall pay to the Company upon request any monies
held by them for the payment of principal or interest that remains unclaimed for
two years. After payment to the Company, Holders entitled to the money must look
to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a customary
manner satisfactory to the Trustee.
Section 9.4 COMPANY'S TERMINATION RIGHTS. Upon the termination of
the Trust pursuant to Section 9.1 and the surrender of the Exchangeable Company
Interest and payment to the Trustee (in its capacity as such and/or in its
capacity as Successor Servicer) of all amounts owed to it under any Pooling and
Servicing Agreement, the Trustee shall assign and convey to the Company (without
recourse,
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representation or warranty) in exchange for the Exchangeable Company Interest
all right, title and interest of the Trust in the Trust Assets, whether then
existing or thereafter created, and all proceeds thereof except for amounts held
by the Trustee pursuant to Section 9.3(b). The Trustee shall execute and
deliver, at the Company's sole cost and expense, such instruments of transfer
and assignment, in each case without recourse, representation or warranty, as
shall be reasonably requested by the Company to vest in the Company all right,
title and interest which the Trust had in the Trust Assets.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 AMENDMENT. (a) Any Pooling and Servicing Agreement,
including any schedule or exhibit thereto, may be amended in writing from time
to time by the Servicer, the Company and the Trustee, without the consent of any
holder of any outstanding Certificate, (i) to cure any ambiguity therein, (ii)
to correct or supplement any provisions therein which may be inconsistent with
any other provisions therein or (iii) to add any other provisions thereto to
change in any manner or eliminate any of the provisions with respect to matters
or questions raised under any Pooling and Servicing Agreement which shall not be
inconsistent with the provisions of any other Pooling and Servicing Agreement;
provided, however, that such action shall not, as evidenced by an Officer's
Certificate from the Company and, to the extent, in the reasonable view of the
Company, a question of law exists, supported by an Opinion of Counsel delivered
to the Trustee, adversely affect in any material respect the interests of the
Investor Certificateholders. The Trustee may, but shall not be obligated to,
enter into any such amendment pursuant to this paragraph or paragraph (b) below
which affects the Trustee's rights, duties or immunities under any Pooling and
Servicing Agreement or otherwise.
(b) Any Pooling and Servicing Agreement and any schedule or
exhibit thereto may also be amended in writing from time to time by the
Servicer, the Company and the Trustee with the consent of Investor
Certificateholders evidencing more than 50% of the Invested Amount of any Series
adversely affected by the amendment (or, if any such Series shall have more than
one Class of Investor Certificates adversely affected by the amendment, 50% or
more of the Invested Amount of each such Class) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
such Pooling and Servicing Agreement or of modifying in any manner the rights of
holders of any Series then issued and outstanding; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor Certificate of
such Series without the consent of such Investor Certificateholder of such
Series; (ii) change the definition of or the manner
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of calculating the interest of any Investor Certificateholder of such Series
without the consent of such Investor Certificateholder; or (iii) reduce the
aforesaid percentage of Fractional Undivided Interests the holders of which are
required to consent to any such amendment in each case without the consent of
all Holders of each Series adversely affected in any material respect.
(c) Notwithstanding anything in this Section 10.1 to the
contrary, the Supplement with respect to any Series may be amended on the terms
and with the procedures provided in such Supplement.
(d) The Company or the Servicer shall deliver any proposed
amendment to each Agent at least five days prior to the execution and delivery
thereof.
(e) Promptly after the execution of any such amendment or
consent the Trustee shall furnish written notification of the substance of such
amendment to each Holder of each Outstanding Series (or with respect to an
amendment of a Supplement, of the applicable Series), and the Servicer shall
furnish written notification of the substance of such amendment to each Rating
Agency. No such amendment (including, without limitation, the amendment of any
Supplement, notwithstanding anything to the contrary contained in any
Supplement) shall be effective until the Rating Agency Condition has been
satisfied with respect thereto.
(f) It shall not be necessary for the consent of Investor
Certificateholders under this Section 10.1 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 Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
(g) In executing or accepting any amendment pursuant to this
Section 10.1, the Trustee shall, upon request, be entitled to receive and rely
upon (i) an Opinion of Counsel (A) stating that such amendment is authorized
pursuant to a specific provision of a Pooling and Servicing Agreement and
complies with such provision, and (B) stating that all conditions precedent to
the execution and delivery of such amendment shall have been satisfied in full,
which opinion in the case of this clause (B) may, to the extent that such
opinion concerns questions of fact, rely on an Officer's Certificate with
respect to such questions of fact, (ii) a certificate from a Responsible Officer
of the Company stating that such amendment does not adversely affect the
interests of the holders of any outstanding Certificates in any material respect
except for holders of the Series whose consent to such amendment has been
obtained in accordance with clause (b) of this Section 10.1 and (iii) a Tax
Opinion.
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Section 10.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST. (a)
The Servicer shall cause this Agreement, any Supplement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Certificateholders' and the Trustee's right,
title and interest to the Trust to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such manner
and in such places as may be required by law fully to preserve and protect the
right, title and interest of the Trustee hereunder to all property comprising
the Trust. The 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 Company shall cooperate fully with the Servicer in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this Section 10.2(a).
(b) With respect to any prospective changes in its name,
jurisdiction of organization, identity or limited liability company or other
organizational structure or its "location" (within the meaning of Section 9-307
of the UCC of all applicable jurisdictions), the Company shall comply fully with
Section 2.8(m) hereof and shall file such financing statements or amendments as
may be necessary to continue the perfection of the Trust's security interest in
the Receivables, Related Property (to the extent perfection therein may be
achieved by the filing of a financing statement in the jurisdiction of the
Company's location within the meaning of Section 9-307 of the UCC of the
applicable jurisdiction), Collections and the proceeds thereof. If the Company
determines that no refining is required, it shall provide to the Trustee an
Opinion of Counsel so stating.
(c) If the Company or the Servicer fails to perform any of
its obligations under this Section 10.2, the Trustee may (but shall not be
required to) perform, or cause performance of, such obligations, and the
Trustee's costs and expenses incurred in connection therewith shall be payable
as provided in SECTION 8.5. The authorization by the Company and the Servicer
set forth in the second sentence of this subsection (c) is intended to meet all
requirements for authorization by a debtor under Article 9 of any applicable
enactment of the UCC, including, without limitation, Section 9-509 thereof.
Section 10.3 LIMITATION ON RIGHTS OF HOLDERS. (a) The death or
incapacity of any Holder shall not operate to terminate this Agreement or the
Trust, nor shall such death or incapacity entitle such Holder'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 liabilities of the parties
hereto or any of them.
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(b) Except with respect to the Investor Certificateholders
as expressly provided in any Pooling and Servicing Agreement, no Investor
Certificateholder, solely by virtue of its status as an Investor
Certificateholder, shall have any right to vote or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall any Investor Certificateholder 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, solely by virtue of its
status as an Investor Certificateholder, shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Investor Certificateholders previously shall have given to the Trustee written
request to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 60 days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding; it being understood and intended, and being expressly covenanted
by each Investor Certificateholder with every other Investor Certificateholder
and the Trustee, that no one or more Holders shall have any right in any manner
whatever by virtue of or by availing itself or themselves of any provisions of
the Pooling and Servicing Agreements to affect, disturb or prejudice the rights
of any other of the Investor Certificateholders, or to obtain or seek to obtain
priority over or preference to any other such Investor Certificateholder, or to
enforce any right under this Agreement, except in the manner herein provided and
for the equal, ratable and common benefit of all Investor Certificateholders.
For the protection and enforcement of the provisions of this Section 10.3, each
and every Investor Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
(d) By their acceptance of Certificates pursuant to this
Agreement and the applicable Supplement, the Holders expressly agree to the
provisions of this Section 8.5 and Section 10.3.
Section 10.4 NOTICES. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of facsimile
notice or overnight courier service, when received, addressed as follows or to
such other address as may be hereafter notified by the respective parties
hereto:
The Company: USS Receivables Company, Ltd.
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2200 E. Golf Road
Des Plaines, Illinois 60016
Attention: Treasurer
Facsimile: 847-699-0027
with a copy to the Servicer:
The Servicer: United Stationers Financial Services LLC
2001 Rand Road
Des Plaines, Illinois 60016
Attention: Nick Martisek
The Trustee: Bank One, NA (Main Office Chicago)
Mail Code IL1-0481
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Global Corporate Trust
Services - Renee Johnson
Facsimile: 312-336-8840
Any notice required or permitted to be mailed to an Investor Certificateholder
shall be given by first-class mail, postage prepaid, or by overnight courier
service, at the address of such Investor Certificateholder as shown in the
Certificate Register. Any notice so given within the time prescribed in any
Pooling and Servicing Agreement shall be conclusively presumed to have been duly
given, whether or not the Investor Certificateholder receives such notice.
Section 10.5 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of any Pooling and Servicing
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 such Pooling and Servicing
Agreement and shall in no way affect the validity or enforceability of the other
provisions of any Pooling and Servicing Agreement or of the Certificates or
rights of the Holders.
Section 10.6 ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Section 5.3 of the Servicing Agreement,
no Pooling and Servicing Agreement may be assigned by the Company or the
Servicer without the prior written consent of the Trustee acting at the
direction of the holders of 66-2/3% of the Invested Amount of each Outstanding
Series and without the
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Section 10.7 CERTIFICATES NONASSESSABLE AND FULLY PAID. It is the
intention of the parties to each Pooling and Servicing Agreement that the
Investor Certificateholders shall not be personally liable for obligations of
the Trust, that the interests in the Trust represented by the Investor
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever and that Investor Certificates upon authentication
thereof by the Trustee pursuant to Section 5.2 are and shall be deemed fully
paid.
Section 10.8 FURTHER ASSURANCES. The Company and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of each Pooling and Servicing Agreement, including,
without limitation, the execution of any financing statements or continuation
statements relating to the Receivables for filing under the provisions of the
UCC of any applicable jurisdiction.
Section 10.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Investor
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 10.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 10.11 THIRD-PARTY BENEFICIARIES. This Agreement will inure to
the benefit of and be binding upon the parties hereto, the Holders and their
respective successors and permitted assigns. Except as otherwise provided in
this Article X, no other Person will have any right or obligation hereunder. No
Obligor shall be notified of the transfers made pursuant to this Agreement or
any Supplement.
Section 10.12 ACTIONS BY HOLDERS. (a) Wherever in any Pooling and
Servicing Agreement 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 Certificateholders of any
Series, unless such provision requires a specific percentage of Investor
Certificateholders of a certain Series or all Series.
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(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by an Investor Certificateholder shall bind such
Investor 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,
the Company or the Servicer in reliance thereon, whether or not notation of such
action is made upon such Certificate.
Section 10.13 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 and the Servicing Agreement.
This Agreement and the Servicing Agreement may not be modified, amended, waived,
or supplemented except as provided herein.
Section 10.14 HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 10.15 SECURITY AGREEMENT. (a) The Company hereby grants to the
Trustee, for the benefit of the Holders, a perfected first priority security
interest in all of the Company's right, title and interest in, to and under the
Receivables and the other Trust Assets now existing and hereafter created, all
monies due or to become due and all amounts received with respect thereto and
all "proceeds" thereof (including Recoveries), to secure all of the Company's
and the Servicer's obligations hereunder, including, without limitation, the
Company's obligation to sell or transfer Receivables hereafter created to the
Trust.
(b) This Agreement shall constitute a security agreement
under applicable law.
Section 10.16 NO SET-OFF. Except as expressly provided in this
Agreement and specifically in SECTION 3.1(g), the Trustee agrees that it shall
have no right of set-off or banker's lien against, and no right to otherwise
deduct from, any funds held in the Collection Account for any amount owed to it
by the Company, the Servicer or any Investor Certificateholder.
Section 10.17 NO BANKRUPTCY PETITION. The Servicer hereby covenants
and agrees that, prior to the date which is one year and one day after the date
of the end of the Amortization Period with respect to all Outstanding Series, it
will not institute against, or join any other Person in instituting against, the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings,
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or other proceedings under any federal or state bankruptcy law or Cayman Islands
bankruptcy law or similar law.
Section 10.18 LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) each Pooling and Servicing Agreement is
executed and delivered by the Trustee, not individually or personally but solely
as Trustee of the Trust, in the exercise of the powers and authority conferred
and vested in it, (b) the representations, undertakings and agreements herein
made on the part of the Trust are made and intended not as personal
representations, undertakings and agreements by the Trustee, but are made and
intended for the purpose of binding only the Trust, (c) nothing herein contained
shall be construed as creating any liability of the Trustee, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties who
are signatories to this Agreement and by any Person claiming by, through or
under such parties; provided, however, the Trustee shall be liable in its
individual capacity for its own willful misconduct, bad faith or negligence and
(d) under no circumstances shall the Trustee be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under any Pooling and Servicing Agreement; provided
further, that the foregoing clauses (a) through (d) shall survive the
resignation or removal of the Trustee.
Without limiting any other rights that the Trustee or any Holder may
have hereunder or under applicable law, (A) the Company hereby agrees to
indemnify (and pay upon demand to) the Trustee and the Trust for the benefit of
the Holders, and their respective assigns, officers, directors, agents and
employees (each an "INDEMNIFIED PARTY") from and against any and all damages,
losses, claims, taxes, liabilities, costs, expenses and for all other amounts
payable, including reasonable attorneys' fees (which attorneys may be employees
of the Indemnified Party, provided that such fees of attorneys that are
employees of any Indemnified Party shall not be duplicative of the fees of any
third-party attorneys retained by such Indemnified Party) and disbursements (all
of the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS")
awarded against or incurred by any of them arising out of or as a result of any
Pooling and Servicing Agreement or any other Transaction Document or the
acquisition, either directly or indirectly, by the Trustee or a Holder of an
interest in the Trust or Trust Assets, and (B) the Servicer hereby agrees to
indemnify (and pay upon demand to) each Indemnified Party for Indemnified
Amounts awarded against or incurred by any of them arising out of the Servicer's
activities as Servicer hereunder excluding, however, in all of the foregoing
instances under the preceding clauses (A) and (B):
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(i) Indemnified Amounts to the extent a final
judgment of a court of competent jurisdiction holds that such Indemnified
Amounts resulted from gross negligence or willful misconduct on the part of
the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same
includes losses in respect of Receivables that are uncollectible on account
of the insolvency, bankruptcy or lack of creditworthiness of the related
Obligor; or
(iii) Excluded Taxes to the extent that the computation
of such taxes is consistent with the intended characterization for income
tax purposes of the acquisition by the Holders of the Certificates (or any
interest therein) as a loan or loans by the Holders to the Company secured
by the Receivables, and other Trust Assets;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of the Company or the Servicer or limit the recourse of the Trustee or
any Holder to the Company or the Servicer for amounts otherwise specifically
provided to be paid by the Company or the Servicer, as applicable, under the
terms of any Pooling and Servicing Agreement. Without limiting the generality of
the foregoing indemnification, the Company shall indemnify each Indemnified
Party for Indemnified Amounts (including, without limitation, losses in respect
of uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to the Company or the Servicer) relating to or resulting
from:
(i) any representation or warranty made by the
Company, the Servicer, the Support Provider or any Seller (or any officers
of any such Person) under or in connection with any Pooling and Servicing
Agreement or any other Transaction Document or any other information or
report delivered by any such Person pursuant hereto or thereto, which shall
have been false or incorrect when made or deemed made;
(ii) the failure by the Company, the Servicer, the
Support Provider or any Seller to comply with any applicable law, rule or
regulation with respect to any Receivable or contract, agreement or
instrument related thereto, or the nonconformity of any Receivable or
contract, agreement or instrument related thereto included therein with any
such applicable law, rule or regulation or any failure of any Seller to
keep or perform any of its obligations,
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express or implied, with respect to any contract, agreement or instrument
related thereto;
(iii) any failure of the Company, the Servicer, the
Support Provider or any Seller to perform its duties, covenants or other
obligations in accordance with the provisions of any Pooling and Servicing
Agreement or any other Transaction Document;
(iv) any products liability, personal injury or damage
suit, or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of Receivable or
any contract, agreement or instrument related thereto;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment of
any Receivable (including, without limitation, a defense based on such
Receivable or the related contract, agreement or instrument not being a
legal, valid and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting from the sale
of the merchandise or service related to such Receivable or the furnishing
or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at
any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from any Pooling and Servicing Agreement or any other
Transaction Document, the transactions contemplated hereby, the ownership
of the Certificates (or any interest therein) or any other investigation,
litigation or proceeding relating to the Company, the Servicer, the Support
Provider or any Seller in which any Indemnified Party becomes involved as a
result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of sovereignty
or otherwise from any legal action, suit or proceeding;
(ix) any Bankruptcy Event relating to the Company, the
Servicer, the Support Provider, any Seller or any of their respective
Subsidiaries;
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(x) any failure of the Company to acquire and
maintain legal and equitable title to, and ownership of any Receivable and
the Related Property and Collections with respect thereto from USFS, free
and clear of any Lien (other than as created hereunder); or any failure of
the Company to give reasonably equivalent value to USFS under the USFS
Receivables Sale Agreement in consideration of the transfer by USFS of any
Receivable, or any attempt by any Person to void such transfer under
statutory provisions or common law or equitable action;
(xi) any failure of USFS to acquire and maintain legal
and equitable title to, and ownership of any Receivable and the Related
Property and Collections with respect thereto from any Seller, free and
clear of any Lien (other than as created hereunder); or any failure USFS to
give reasonably equivalent value to any Seller under the USSC Receivables
Sale Agreement in consideration of the transfer by such Seller of any
Receivable, or any attempt by any Person to void such transfer under
statutory provisions or common law or equitable action;
(xii) any failure to vest and maintain vested in the
Trustee for the benefit of the Trust and the Holders, or to transfer to the
Trustee for the benefit of the Trust and the Holders, legal and equitable
title to, and ownership of, a first priority perfected undivided percentage
ownership interest or security interest in the Receivables, the Related
Property and the Collections, free and clear of any Lien (except as created
by the Transaction Documents);
(xiii) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable, the Related Property and Collections with
respect thereto, and the proceeds of any thereof;
(xiv) any action or omission by the Company, the
Servicer, the Support Provider or any Seller which reduces or impairs the
rights of the Trustee or the Holders with respect to any Receivable or the
value of any such Receivable;
(xv) any attempt by any Person to void the transfer of
the Trust Assets hereunder under statutory provisions or common law or
equitable action; and
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(xvi) the failure of any Receivable included in the
calculation of the Series 2003-1 Allocated Receivables Amount as an
Eligible Receivable to be an Eligible Receivable at the time so included.
Section 10.19 CERTAIN INFORMATION. The Servicer and the Company shall
promptly provide to the Trustee such information in computer tape, hard copy or
other form regarding the Receivables as the Trustee may reasonably request to
perform its obligations hereunder.
Section 10.20 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.21 CONSENT TO JURISDICTION. EACH OF THE COMPANY AND THE
SERVICER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH OF THE
COMPANY AND THE SERVICER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE TRUSTEE OR
ANY CERTIFICATEHOLDER TO BRING PROCEEDINGS AGAINST THE COMPANY OR THE SERVICER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE COMPANY
OR THE SERVICER AGAINST THE TRUSTEE OR ANY AFFILIATE OF THE TRUSTEE INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY THE COMPANY OR THE
SERVICER PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS OR NEW YORK, NEW YORK.
Section 10.22 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER
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(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY THE
COMPANY OR THE SERVICER PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
Section 10.23 CURRENCY CONVERSION AND CURRENCY INDEMNITY.
(a) PAYMENTS IN AGREED CURRENCY. The Company shall make
payment relative to any monetary obligation (a "MONETARY OBLIGATION") under any
Transaction Document in Dollars (the "AGREED CURRENCY"). If any payment is
received on account of any Monetary Obligation in any currency (the "OTHER
CURRENCY") other than the Agreed Currency (whether voluntarily or pursuant to an
order or judgment or the enforcement thereof or the realization of any
collateral or the liquidation of the Company or otherwise howsoever), such
payment shall constitute a discharge of the liability of the Company hereunder
and under the other Transaction Documents in respect of such Monetary Obligation
only to the extent of the amount of the Agreed Currency which the relevant
Holder or the Trustee, as the case may be, is able to purchase with the amount
of the Other Currency received by it on the Business Day next following such
receipt in accordance with its normal procedures and after deducting any premium
and costs of exchange.
(b) CONVERSION OF AGREED CURRENCY INTO JUDGMENT CURRENCY.
If, for the purpose of obtaining or enforcing judgment in any court in any
jurisdiction, it becomes necessary to convert into a particular currency (the
"JUDGMENT CURRENCY") any amount due in the Agreed Currency then the conversion
shall be made on the basis of the rate of exchange prevailing on the next
Business Day following the date such judgment is given and in any event the
Company shall be obligated to pay the Trustee and the Holders any deficiency in
accordance with subsection (c) below. For the foregoing purposes "rate of
exchange" means the rate at which the Holder or the Trustee, as applicable, in
accordance with its normal banking procedures is able on the relevant date to
purchase the Judgment Currency with the Agreed Currency after deducting any
premium and costs of exchange.
(c) CIRCUMSTANCES GIVING RISE TO INDEMNITY. To the fullest
extent permitted by applicable law, if (i) any Holder or the Trustee receives
any payment or payments on account of the liability of the Company hereunder
pursuant to any judgment or order in any Other Currency, and (ii) the amount of
the Agreed Currency which the relevant Holder or the Trustee, as applicable, is
able to purchase on the Business Day next following such receipt with the
proceeds of such payment or payments in accordance with its normal procedures
and after deducting any premiums and costs of exchange is less than the amount
of the Agreed Currency due in respect of such liability immediately prior to
such judgment or order, then the
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Company, within five (5) Business Days of demand shall, and the Company hereby
agrees to, indemnify the Holders and the Trustee from and against any loss, cost
or expense arising out of or in connection with such deficiency.
(d) INDEMNITY SEPARATE OBLIGATION. To the fullest extent
permitted by applicable law, the agreement of indemnity provided for in
subsection (c) above shall constitute an obligation separate and independent
from all other obligations contained in this Agreement, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by the Holders or the Trustee or any of them from time to
time, and shall continue in full force and effect notwithstanding any judgment
or order for a liquidated sum in respect of an amount due hereunder or under any
judgment or order.
Section 10.24 CONFIRMATION AND RATIFICATION OF TERMS. The effect of
this Agreement is to amend and restate the Original Agreement, and to the extent
that any rights, benefits or provisions in favor of any party to the Original
Agreement existed in the Original Agreement and continue to exist in this
Agreement (including without limitation and obligations to repurchase
Receivables) without any written waiver of any such rights, benefits or
provisions prior to the date hereof, then such rights, benefits or provisions
are acknowledged to be and to continue to be effective from and after the date
of the Original Agreement. This Agreement is not a novation. The parties hereto
agree and acknowledge that any and all rights, remedies and payment provisions
under the Original Agreement, which are continuing and survive any termination
of the Original Agreement including, without limitation, any and all rights,
remedies and payment provisions with respect to (A) any representation and
warranty made or deemed to be made pursuant to the Original Agreement, or (B)
any indemnification provision, shall continue and survive the execution and
delivery of this Agreement.
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IN WITNESS WHEREOF, the Company, the Servicer and the Trustee have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
USS RECEIVABLES COMPANY, LTD.
By:
-------------------------------
Name:
Title:
UNITED STATIONERS FINANCIAL
SERVICES LLC, as Servicer
By:
-------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
not in its individual capacity but solely
as Trustee
By:
-------------------------------
Name:
Title:
<Page>
EXHIBIT A
TO USSC POOLING AGREEMENT
FORM OF LOCKBOX AGREEMENT
<Page>
FORM OF [SECOND AMENDED AND RESTATED] LOCKBOX AGREEMENT
THIS [SECOND AMENDED AND RESTATED] LOCKBOX AGREEMENT dated as of
___________, 2003 (this "AGREEMENT") is entered into among UNITED STATIONERS
FINANCIAL SERVICES LLC, an Illinois limited liability company (together with its
successors and assigns, the "COMPANY"), USS RECEIVABLES COMPANY, LTD., a Cayman
Islands limited liability company (together with its successors and assigns,
"USSRecCCCO"), BANK ONE, NA (MAIN OFFICE CHICAGO), as Trustee under the
below-referenced Pooling Agreement (in such capacity, together with its
successors in such capacity, the "TRUSTEE"), [UNITED STATIONERS SUPPLY CO., an
Illinois corporation, solely for purposes of acknowledging and agreeing to
Section 1 hereof] and ______________________ a ____________________, as lockbox
agent and the provider of certain collection services hereunder (the "LOCKBOX
AGENT").
WHEREAS, United Stationers Supply Co. ("USSC"), certain other
subsidiaries of United Stationers, Inc. (together with USSC, the "Sellers"),
USSRecCo, as purchaser, and USSC, as servicer, entered into that certain
Receivables Sale Agreement dated as of April 3, 1998 (the "ORIGINAL SALE
AGREEMENT"), pursuant to which the Sellers sold certain of their Receivables (as
defined therein) and certain other related property (including the right to
Collections (as defined therein)) to USSRecCo;
WHEREAS, USSRecCo, USSC, as servicer, and the Trustee (as successor to
JPMorgan Chase Bank) entered into that certain Pooling Agreement dated as of
April 3, 1998 (the "ORIGINAL POOLING AGREEMENT"), pursuant to which USSRecCo
conveyed all of the assets purchased from the Sellers to the Trustee, for the
benefit of the United Stationers Receivables Master Trust (the "TRUST");
[WHEREAS, in connection with the Original Pooling Agreement, USSC,
USSRecCo, the Trustee and the Lockbox Agent entered into that certain Lockbox
Agreement dated as of April 3, 1998, pursuant to which the Lockbox and the
Lockbox Accounts were established in the name of USSC;]
WHEREAS, USSC, the Sellers, and the Company, as purchaser, and the
Company, as servicer, have amended and restated the Original Sale Agreement
pursuant to that certain Second Amended and Restated Receivables Sale Agreement
dated as of March __, 2003 (as amended, restated, supplemented or otherwise
modified from time to time, the "TIER I SALE AGREEMENT"), pursuant to which the
Sellers have sold (and will continue to sell) all of their Receivables (as
defined therein) and certain other related property (including the right to
Collections) to the Company;
<Page>
WHEREAS, the Company, as seller, USSRecCo, as purchaser, and the
Company, as servicer, have entered into that certain USFS Receivables Sale
Agreement dated as of March __, 2003 (the "TIER II SALE AGREEMENT"), pursuant to
which the Company has sold (and will continue to sell) substantially all of the
Receivables and other property acquired from the Sellers pursuant to the Tier I
Sale Agreement to USSRecCo;
WHEREAS, USSRecCo, the Company, as servicer, and the Trustee have
amended and restated the Original Pooling Agreement pursuant to that certain
Second Amended and Restated Pooling Agreement dated as of March __, 2003 (as
modified and supplemented and in effect from time to time, the "POOLING
AGREEMENT"; capitalized terms used herein without definition shall have the
meanings set forth in the Pooling Agreement), pursuant to which USSRecCo will
convey the receivables acquired by it from the Company to the Trustee, for the
benefit of the Trust; and
[WHEREAS, in connection with the transactions contemplated by the
agreements described above, the parties to the Original Lockbox Agreement desire
to amend and restate the rights, duties and obligations under the Original
Lockbox Agreement, including a transfer of the ownership of the right, title and
interest in and to the Lockbox and the Lockbox Account from USSC to USSRecCo;]
WHEREAS, in connection with the Pooling Agreement, the Company has
requested the Lockbox Agent, and the Lockbox Agent has agreed, to establish in
the name of USSRecCo and to maintain and operate, pursuant to the Lockbox
Processing Procedures attached hereto as Exhibit B (the "LOCKBOX PROCEDURES"),
for the benefit of the Trustee, a payment processing arrangement for all
remittances (including wire transfers and ACH credits) from account debtors of
the Sellers, which remittances will be deposited for collection into and cleared
through (or credited to) a bank account (the "LOCKBOX ACCOUNT") maintained, in
the name of USSRecCo, by the Lockbox Agent at its branch located at
__________________ (the "BRANCH OFFICE"). The Lockbox Account is account
#______________.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the [Original Lockbox
Agreement is hereby amended and restated in its entirety] parties hereto agree
as follows:
Section 2. THE LOCKBOX. The Lockbox Agent shall [transfer the
ownership of the Lockbox from USSC to USSRecCo] rent a post office box on behalf
of USSRecCo in the Lockbox Agent's name (the "LOCKBOX"). The Lockbox Agent shall
process mail delivered to the Lockbox in accordance with the Lockbox
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Procedures. The Lockbox Agent shall advise the Company and the Trustee of the
establishment of the Lockbox (identifying the same) and of how mail is to be
addressed in order to be delivered to the Lockbox.
Section 3. ACCESS TO LOCKBOX. The Lockbox Agent shall have
unrestricted and exclusive access to the Lockbox for the purpose of retrieving
and processing the contents thereof in accordance with the procedures specified
herein.
Section 4. BAILMENT. The removal of checks, drafts, notes, money
orders or other orders for payment (hereinafter referred to collectively as
"ITEMS") or cash from the Lockbox shall create a bailment, with the Lockbox
Agent as bailee and the Trustee as bailor, and in connection therewith, the
Lockbox Agent hereby agrees and acknowledges that it will hold possession of all
such Items and cash for the benefit of the Trustee. Such bailor-bailee
relationship shall continue until such Items or cash are received at the Branch
Office and deposited for collection into the Lockbox Account in accordance with
this Agreement, at which time the Trustee shall be a depositor of the Lockbox
Agent with respect to the Lockbox Account. The Lockbox Agent further agrees that
if the Lockbox Agent receives any instruction originated by the Trustee
directing the disposition of funds in the Lockbox Account, the Lockbox Agent
will comply with such instruction without further consent of the Company,
USSRecCo or any other person or entity, and the Trustee shall have "control"
over the Lockbox Account as provided in the Uniform Commercial Code in effect in
the State of New York. In addition to the cash and Items removed from the
Lockbox, the bailor-bailee relationship described above shall also apply to the
any other contents removed from the Lockbox.
Section 5. PROCEDURES. The Lockbox Agent will remove the envelopes
received in the Lockbox, and will open such envelopes and remove the contents
thereof, at the frequency and times specified in Section 6 hereof. Items
contained in the envelopes will be inspected and handled in accordance with the
Lockbox Procedures unless otherwise instructed in writing by the Trustee (with
notice to the Company five (5) Business Days prior to the implementation of such
changes).
Items that are not acceptable for deposit under this Section 4 will
not be deposited into the Lockbox Account, but will be handled as provided in
the Lockbox Procedures.
Section 6. DEPOSIT OF ITEMS. Each Item acceptable for deposit under
Section 4 hereof and all cash will be deposited, for collection, into the
Lockbox Account, and the proceeds of such collection will be credited to the
Lockbox Account upon receipt. In accordance with the Lockbox Procedures, a
photocopy will be taken of each Item and attached to the corresponding envelope
and accompanying
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papers. Photocopies of Items will be accompanied by an adding machine tape or
other detailed listing for each deposit.
Section 7. FREQUENCY OF DEPOSIT. In order to maximize daily
receipts and funds availability, the Lockbox Agent will retrieve and open the
mail delivered to the Lockbox as provided in the Lockbox Procedures, provided
that the Lockbox Agent will retrieve and open such mail at least once each local
business day and shall promptly deposit into the Lockbox Account, for collection
in accordance with this Agreement, the Items and cash contained in such mail in
accordance with the Lockbox Procedures. Each deposit will correspond to an
individual total shown on the Lockbox Account statement. Deposits will be made
in anticipation of major check clearing deadlines.
Section 8. MICROFILMING OF ITEMS. For reference purposes, all Items
deposited by the Lockbox Agent will be microfilmed in accordance with the
Lockbox Agent's normal procedures. Copies thereof will be made available to the
Company or, upon request of the Trustee, to the Trustee, for the period required
by applicable state or Federal law for record retention purposes.
Section 9. ENDORSEMENT OF ITEMS. The following endorsement will be
applied by the Lockbox Agent to each Item deposited for collection into the
Lockbox Account in accordance with the Lockbox Procedures:
"Credited to the account of the within-named payee, absence of
endorsement guaranteed (Lockbox Agent)."
Section 10. TREATMENT OF NON-DEPOSITED ITEMS; OTHER MAIL. The
following Items will be batched separately and will be forwarded with the daily
remittance materials as provided in Section 10 hereof:
A. Items which, pursuant to the Lockbox Procedures, are not deposited for
collection into the Lockbox Account, and accompanying papers and
envelopes; and
B. Envelopes which contain only correspondence, but no cash or Items.
Section 11. BATCHING OF ITEMS. All remittance papers, envelopes,
adding machine tapes and deposit ticket copies (one (1) for each deposit), and
all photocopies made pursuant to Section 5 hereof, will be batched by deposit so
that all related papers are together, and handled in accordance with the Lockbox
Procedures. These batches, and all Items which have been deposited into the
Lockbox Account, and the other documents described herein will be sent to the
Company and, if the Trustee shall so notify the Lockbox Agent, with a copy to
the Trustee, by express
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mail (or other overnight delivery service) to the appropriate address set forth
on Exhibit A hereto or such other address notified to the Lockbox Agent in
writing.
Section 12. INSUFFICIENT FUNDS. In accordance with the Lockbox
Procedures, in the event that an Item deposited into the Lockbox Account is
returned unpaid because of "insufficient funds" or "uncollected funds", the
Lockbox Agent will redeposit such Item unless such Item has twice been returned
unpaid. If redeposit of an Item is not possible because an Item is returned with
an "Account Closed", "Payment Stopped" or similar notation, the Lockbox Agent
will charge the Lockbox Account and send such Item with debit advice to the
Company with a copy to the Trustee (unless Trustee shall otherwise notify the
Lockbox Agent), by express mail (or other overnight delivery service) to the
appropriate address set forth on Exhibit A hereto or such other address notified
to the Lockbox Agent in writing. In addition, the Lockbox Agent will provide the
Company and, if the Trustee shall so notify the Lockbox Agent, the Trustee, with
telephonic notice of Items that are returned unpaid.
Section 13. FUND TRANSFERS. None of the Sellers, the Company nor
USSRecCo shall have any right of withdrawal over the Lockbox Account. The
Lockbox Agent shall, (i) by [9:00 a.m.] on each day on which the Branch Office
is open, wire transfer collected funds standing to the credit of the Lockbox
Account or (ii) by [4:00 p.m.] initiate an automated clearing house credit on
each day on which the Branch Office is open for credit on the succeeding
Business Day (in each case net of returns and a base balance not to exceed
$20,000 in collected funds) to account number _________ maintained by the
Trustee at its office at 1 Bank One Plaza, Chicago, Illinois 60670, or to such
other account as the Trustee shall notify the Lockbox Agent in writing with a
copy of such notice to the Company. USSRecCo hereby agrees to indemnify the
Lockbox Agent from, and hold the Lockbox Agent harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by the Lockbox Agent
arising out of or by reason of the remittance to the Trustee of any uncollected
funds representing anticipated proceeds of the collection of an Item that shall
fail for any reason to ultimately be collected or the return or dishonor of any
Item deposited in the Lockbox Account.
Section 14. LOCKBOX AGENT FEES. The Lockbox Agent fees, together
with out-of-pocket expenses such as post office box rental, postage, express
mail or overnight delivery, and non-par check charges, are the sole and
exclusive responsibility of the Company; provided, that the Trustee may, but
shall be under no obligation to, pay any such fees and expenses that the Company
shall fail to pay on any Distribution Date to the extent of available funds.
Section 15. NOTIFICATION OF ACCOUNT DEBTORS. Promptly following the
execution and delivery hereof, the Company will, or will cause the applicable
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Seller to, notify each account debtor that has not already been so notified to
send remittances owing to the Company, USSRecCo or any Seller to the Lockbox
(unless such account debtor has otherwise been notified to send such remittance
to another lockbox pursuant to another lockbox agreement with the Trustee).
Remittances sent directly to the Company's office, together with any
accompanying papers and the original envelopes, shall be placed by the Company
into another envelope addressed to the Lockbox Agent and hand delivered to the
Lockbox.
Section 16. AUTHORITY TO CREDIT AND DEBIT LOCKBOX ACCOUNT. The
Lockbox Agent shall have the right to credit or debit the Lockbox Account to
correct any processing irregularity. Copies of credit or debit advice will be
sent to the Company and, if the Trustee shall so notify the Lockbox Agent, with
a copy to the Trustee, by express mail (or other overnight delivery service) or
facsimile to the appropriate address set forth on Exhibit A hereto or such other
address notified to the Lockbox Agent in writing. From time to time, the Company
or the Trustee, as the case may be, may wish to communicate processing
irregularities or requests to the Lockbox Agent. Such inquiries must be made to
the Lockbox Agent within a period of two (2) years after the respective
irregularity shall occur.
Section 17. RESPONSIBILITY OF LOCKBOX AGENT. Each of the parties
hereby agrees that the Lockbox Agent's responsibility to it under this Agreement
shall be limited to the exercise of due professional care and skill as would be
exercised by a commercial bank offering the services contemplated by this
Agreement (including without limitation, the Lockbox Procedures) for a fee. In
no event shall the Lockbox Agent be liable to the Company or the Trustee for
failure to follow any of the procedures set forth herein, including, without
limitation, failure to perform any service within the time provided therefor, if
such failure is due to the occurrence of any of the following events: any act or
failure to act by the Company or the Trustee, as the case may be; a power
failure; strikes or lock-outs; fire or other casualty; riot or civil commotion;
earthquakes, floods, or other acts of God; delay in transportation; or any other
event beyond the control of the Lockbox Agent, provided, however such failure
did not result from the negligence or misconduct of the Lockbox Agent).
THE LOCKBOX AGENT SERVES AT THE PLEASURE OF THE TRUSTEE AND CAN BE REPLACED AT
ANYTIME AT THE SOLE DISCRETION OF THE TRUSTEE. ANY REPLACEMENT OF THE LOCKBOX
AGENT SHALL BE SELECTED BY THE TRUSTEE WHICH IN TURN SHALL SERVE AT THE
TRUSTEE'S PLEASURE.
Section 18. LIEN OF TRUSTEE. Each of the Company, USSRecCo and the
Lockbox Agent hereby agrees that the Trustee shall have a continuing first
priority lien on, and security interest in, the Lockbox, the Lockbox Account,
the contents of the Lockbox and Lockbox Account, and all funds standing to the
credit
6
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of the Lockbox Account and that the Lockbox Agent shall be the Trustee's agent
for the purpose of holding and collecting such collateral security. As provided
herein, the Lockbox Account shall be under the control of the Trustee, and the
Lockbox Agent (as agent for the Trustee), and none of the Sellers, the Company
or USSRecCo shall have any right to withdraw or transfer any amount from the
Lockbox Account. The Lockbox Agent shall take instructions with respect to the
Lockbox Account from no person other than the Trustee and shall comply with any
instructions of the Trustee with respect to the Lockbox Account without further
consent of Company, USSRecCo or any other person or entity.
Section 19. NOTICES. Unless otherwise provided in the Lockbox
Procedures, notices relating to this Agreement shall be in writing and
telecopied or delivered to the intended recipient at its "Address for Notices"
specified opposite its name on Exhibit A hereto or, as to any party, at such
other address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
Section 20. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement shall be governed by and construed in accordance with the law of the
State of Illinois. Each of the parties hereto hereby submits to the nonexclusive
jurisdiction of any United States Federal or Illinois State court sitting in
Chicago, Illinois for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of
the venue of any such proceeding brought in such court and any claim that any
such proceeding brought in such court has been brought in an inconvenient forum.
Section 21. MISCELLANEOUS. This Agreement shall be effective as of
the date first above written, upon the due execution of this Agreement by each
party hereto. Neither this Agreement nor any provision hereof may be modified or
waived orally, but only by an instrument in writing signed by the parties
hereto; provided that the Company and the Lockbox Agent may, with written notice
to the Trustee, modify the Lockbox Procedures unless such modification has an
adverse effect on the rights of the Trustee hereunder. In the event of any
conflict between the provisions of this Agreement and the Lockbox Procedures,
the provisions of this Agreement shall control. This Agreement shall terminate
upon (i) the expiration or earlier termination of the Pooling Agreement. This
Agreement may be terminated at any time by the Lockbox Agent or the Trustee upon
thirty (30) days advance written notice to the other parties to this Agreement.
The obligations and agreements as to payments, reimbursement and indemnification
set forth in this Agreement shall
7
<Page>
survive the termination of this Agreement. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
8
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this [USSC] Lockbox
Agreement to be duly executed and delivered as of the date first above written.
UNITED STATIONERS FINANCIAL SERVICES
LLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
USS RECEIVABLES COMPANY, LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO),
as TRUSTEE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[INSERT NAME OF LOCKBOX AGENT],
as Lockbox Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
<Page>
[ACKNOWLEDGED AND AGREED
TO AS OF THE DATE FIRST
SET FORTH ABOVE, SOLELY FOR
PURPOSES OF SECTION 1 HEREOF.
UNITED STATIONERS SUPPLY CO.
By:
--------------------------------
Name:
------------------------------
Title:[ ]
-----------------------------
<Page>
EXHIBIT A
to
Lockbox Agreement
ADDRESSES
COMPANY: UNITED STATIONERS FINANCIAL
SERVICES LLC
2001 Rand Road
Des Plaines, Illinois 60016
Telecopier No.: __________________
Telephone No.: __________________
Attention: ______________________
USSRecCO: USS RECEIVABLES COMPANY, LTD.
2200 East Golf Road
Des Plaines, Illinois 60016
Telecopier No.: __________________
Telephone No.: __________________
Attention: Treasurer
TRUSTEE: BANK ONE, NA (MAIN OFFICE CHICAGO),
as Trustee
1 Bank One Plaza
Mail Code IL1-0481
Chicago, Illinois 60670
Telecopier No.: (312) 336-8840
Telephone No.: (312) 336-9803
Attention: Global Corporate Trust
Services - Renee Johnson
LOCKBOX AGENT: ______________________________
______________________________
______________________________
______________________________
Telecopier No.: (_) ___-______
Telephone No.: (_) ___-______
Attention: ______________________
<Page>
Exhibit B to Lockbox Agreement
LOCKBOX PROCESSING PROCEDURES
UNITED STATIONERS FINANCIAL SERVICES LLC
Lockbox Remittance Banking Section will pick up mail, including remittances,
several times each day from the assigned P.O. Box.
Envelopes will be opened by the Bank and checks will be examined for regularity
of date, amount, signature, and payee.
I. Check Acceptance/Rejection
A. ACCEPT:
1. checks made payable to:
United Stationers/Financial/Services/(LLC)
USFS (LLC)
United Stationers/Supply/(Co.)
United Stationers Furniture Div.
USSC or USSCO
MicroUnited/(Inc.)
MicroUnited Computer Products
MicroUnited Business Products
Stationers Distribution Co.
SDC
United Facility Supply
Associated Stationers, Inc.
Associated
ASI
All Value Office Products
[Add as appropriate for Additional Sellers] Or any
reasonable derivation of the above.
B. REJECT:
1. Stale or post dated checks.
2. Foreign Items.
3. Third party checks.
C. EXCEPTIONS:
1. No Signature.
(a) Add "signature guaranteed" endorsement.
<Page>
(b) Notify the [Corporate Cash Control Assistant] at
(847) _________________.
2. Differences between the numerical and longhand amounts.
(a) Look at invoice or remittance advice for a total that
matches either the longhand or the numerical amount.
(b) If either amount matches the invoice or remittance
advice, use that amount.
(c) If neither amount matches the invoice or remittance
amount, use the longhand amount and deposit the check.
(d) Do not call the Cash Control Assistant if both check
amounts are the same but do not match the invoice or
remittance advice. Process the check as is.
(e) If there is no invoice available, use the longhand
amount.
3. Checks bearing the notation "Paid in Full".
Call Corporate Cash Control Assistant. Either the Corporate Cash Control
Assistant, Cash Manager, or Treasurer will give authorization to either
deposit or return the check.
II. All remittances in good order will be processed and deposited in batches of
no more than twenty-five (25) checks.
III. The Bank will deposit the amount of these items into the appropriate United
Stationers lockbox account.
IV. All checks processed will be microfilmed and properly endorsed.
NOTE: Microfilm will be retained by the Bank for possible future reference.
V. Advice of Deposit
Each day send the following deposit related information via overnight
courier service:
1. Duplicate deposit ticket.
2. Photocopies of each check deposited, stapled to the attached
detail.
3. Envelopes, rejects, correspondence, memos, etc. (NOTE: Please
include the Federal Express envelope for all checks received via
Federal Express.)
B-2
<Page>
[To: UNITED STATIONERS
Attn: Front Door Receptionist
Centralized Accounts Receivable Dept.
1661 Feehanville Suite 400
Mount Prospect, IL 60056]
VI. Returned Items
A. FOR ALL* CHECKS RETURNED AFTER THE FIRST PRESENTMENT. [*Includes
NSF, Uncollected Funds, Stop Payment, Account Closed, Improper
Endorsements, Refer to Maker, date, Signature, Other]
For all checks which are returned for the first time, the Corporate Cash Control
Assistant should be notified by telephone IMMEDIATELY, regardless of the amount
of the check or the reason for the return. The Corporate Cash Control
Assistant's telephone number is (847) ______________.
The Corporate Cash Control Assistant will instruct the bank to either redeposit
or return the item to United Stationers. The bank SHOULD NOT automatically
redeposit or return any items without first notifying the Corporate Cash Control
Assistant.
If your call is answered by our voice mail system, please leave the following
information on the recorder (you have up to 2 minutes so please speak slowly):
Caller's name, phone number with area code, and the bank
represented, payee, reason for return, first or second
return, maker, the maker's city and state, check number,
check date, deposit date (or dates if check is a second
return), and the makers bank.
All bankable checks (i.e. NSF, uncollected, endorsement missing) should be.
Please state whether the check will be redeposited or returned.
*NOTE: Voice mail is available 24 hours a day. If a return item comes in after
5:00 PM Central time, please leave all information as mentioned above.
A. NO SIGNATURE ITEMS.
After the bank has notified the Corporate Cash Control Assistant, the bank
should redeposit these items with a "signature guaranteed" endorsement.
B-3
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B. NO ENDORSEMENT BY UNITED STATIONERS.
After the bank has notified the Corporate Cash Control Assistant, the bank
should guarantee the endorsement and redeposit these items.
C. REFER TO MAKER CHECKS.
After the bank has notified the Corporate Cash Control Assistant, the bank
should return the item to United Stationers.
D. FOR ALL * CHECKS RETURNED AFTER THE SECOND PRESENTMENT.
[*Includes NSF, Uncollected Funds, Stop Payment, Account Closed, Improper
Endorsements, Date, Signature, Other]
For ALL checks returned on the second presentment, the bank should IMMEDIATELY
telephone the Corporate Cash Control Assistant regardless of the amount of the
check or the reason for return.
Our voice mail is available after our regular business hours. Please leave the
following information on the recording:
Caller's name, phone number with area code, and the bank represented, payee,
reason for return, first or second return, maker, the maker's city and state,
check number, check date, deposit date (or dates if check is a second return),
and the makers bank.
E. AUTHORIZED ITEMS RETURNED TO UNITED STATIONERS.
ONLY after the Corporate Cash Control Assistant has approved the return of an
item or the information has been left on voice mail can it be sent back to
United Stationers.
The mailing address for all authorized returns is:
United Stationers Financial Services LLC
[Treasury Department]
2001 Rand Road
Des Plaines, IL 60016-1267
F. FOR ALL* AUTOMATED CLEARING HOUSE ITEMS.
[*Includes NSF, Uncollected Funds, Stop Payment, Account Closed, Improper
Endorsements, Refer to Maker, Date, Signature, Other]
B-4
<Page>
For ALL checks which are returned for the first time, the Corporate Cash Control
Assistant should be notified by telephone IMMEDIATELY, regardless of the amount
of the ACH or the reason for the return. The Corporate Cash Control Assistant's
telephone number is (847) ___________.
As ACH items are normally redeposited immediately, whenever possible, please be
sure to inform the Corporate Cash Control Assistant if the item has been
redeposited or is being returned.
If your call is answered by our voice mail system, please see section A for
information to leave on the recorder.
G. FEDERAL REGULATION CC.
All items returned outside of the guidelines specified by Regulation CC will be
sent back for a "late return".
B-5
<Page>
EXHIBIT B
TO POOLING AGREEMENT
[Intentionally Omitted].
<Page>
EXHIBIT C
TO POOLING AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA (Main Office Chicago), as Trustee and Agent
This Compliance Certificate is furnished pursuant to that certain
Second Amended and Restated Pooling Agreement, dated as of March __, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the
"AGREEMENT"), among USS Receivables Company, Ltd., a Cayman Islands limited
liability company (the "COMPANY"), United Stationers Financial Services LLC, an
Illinois limited liability company ("USFS"), in its capacity as servicer (the
"SERVICER"), and Bank One, NA (Main Office Chicago), not in its individual
capacity, but solely as trustee (in such capacity, the "TRUSTEE"). Capitalized
terms used and not otherwise defined herein are used with the meanings
attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________________ of the Company.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The examinations described in PARAGRAPH 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes an
Early Amortization Event or Potential Early Amortization Event during or at the
end of the accounting period covered by the attached financial statements or as
of the date of this Certificate, except as set forth in PARAGRAPH 5 below.
4. SCHEDULE I attached hereto sets forth financial data and computations
evidencing the compliance with certain covenants of the Agreement, all of which
data and computations are true, complete and correct.
5. Described below are the exceptions, if any, to PARAGRAPH 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
<Page>
6. As of the date hereof, the jurisdiction of organization of the Company
is the Cayman Islands, the place where the Company is "located" for the purposes
of Section 9-307 of the UCC is the State of Illinois, and the Company has not
changed its jurisdiction of organization or its "location" for the purposes of
Section 9-307 of the UCC since the date of the Original Agreement.
The foregoing certifications, together with the computations set forth in
SCHEDULE I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this__ day of________ ,___.
---------------------------------
Name:
Title:
B-2
<Page>
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of _________________ ,________ with Section ___
of the Agreement.
This schedule relates to the fiscal year ended:
B-3
<Page>
Schedule 1
TO USSC POOLING AGREEMENT
[Intentionally Omitted].
<Page>
Schedule 2
TO USSC POOLING AGREEMENT
TRUST ACCOUNTS
ACCOUNT NAME ACCOUNT NUMBER
Collection Account
644604605 maintained at Bank
One, NA (Main Office Chicago)
Series 2003-1
ACCOUNT NAME ACCOUNT NUMBER
USS Receivables 2003-1 Collection
Subaccount 644604605.1
Series 2000-2
ACCOUNT NAME ACCOUNT NUMBER
USS Receivables 2000-2 Collection
Subaccount 644604605.2
<Page>
Schedule 3
TO USSC POOLING AGREEMENT
ACTIONS WITH RESPECT TO CHATTEL PAPER
Each Seller and the Servicer, in each case acting as custodian for the
Company, and the Company, shall immediately take all of the following actions
(in addition to all other actions set forth or reasonably requested as described
in the Transaction Documents and in all documents executed in connection with
the sale of an interest in the Receivables and the grant of a security interest
therein to other Persons) to protect or more fully evidence the security
interest granted by the Company in chattel paper evidencing Receivables pursuant
to agreements and documents entered into after the Closing Date (such chattel
paper being the "CHATTEL PAPER").
(a) Wherever it is located, maintain all Chattel Paper in
segregated storage cabinets, which cabinets will contain no other documents;
(b) Conspicuously mark each such storage cabinet to indicate
that the documents contained therein are Chattel Paper evidencing Receivables of
the Company;
(c) Stamp in red the original of each document constituting
Chattel Paper with a legend to read as follows:
"THIS DOCUMENT AND ALL RIGHTS HEREUNDER HAVE BEEN SOLD TO UNITED
STATIONERS FINANCIAL SERVICES LLC, WHICH HAS SOLD THIS DOCUMENT
AND ALL RIGHTS HEREUNDER TO USS RECEIVABLES COMPANY, LTD. AND ARE
SUBJECT TO A SECURITY INTEREST IN FAVOR OF BANK ONE, NA (MAIN
OFFICE CHICAGO), AS TRUSTEE."
or such other legend that is reasonably acceptable to the Trustee; provided that
at any time that an Early Amortization Event has occurred and is continuing,
such Seller or the Servicer shall, at the request of the Trustee, stamp any
Chattel Paper with the above legend prior to sending it to other parties for
execution.
<Page>
SCHEDULE 4
TO USSC POOLING AGREEMENT
LOCATION OF RECORDS
2200 E. Golf Road
Des Plaines, Illinois 60016
(Cook County)
CHIEF EXECUTIVE OFFICE
Same
<Page>
SCHEDULE 5
TO USSC POOLING AGREEMENT
CONTRACTUAL OBLIGATIONS
None
<Page>
SCHEDULE 6
TO USSC POOLING AGREEMENT
FINANCING STATEMENTS
[List to be compiled based on Termination Statements supplied by Weil.]
<Page>
SCHEDULE 7
TO USSC POOLING AGREEMENT
TERMINATED FINANCING STATEMENT
UCC-1 Financing Statement no. 4381619 naming United Stationers Financial
Services LLC, as Seller, USS Receivables Company Ltd,., as Purchaser and The
Chase Manhattan Bank, as Trustee, as assignee, filed with the Illinois Secretary
of State on may 7, 2001.