EXECUTION COPY
Exhibit 10.21
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CM CAPITAL CORPORATION,
as Company,
CORE-MARK INTERNATIONAL, INC.,
as Servicer,
SUBSIDIARIES OF CORE-MARK INTERNATIONAL, INC.,
NAMED HEREIN,
as Sub-Servicers
and
THE CHASE MANHATTAN BANK,
as Trustee
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SERVICING AGREEMENT
Dated as of April 1, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
ADMINISTRATION AND SERVICING
OF RECEIVABLES . . . . . . . . . . . . . . . . 2
2.1. Appointment of Servicer and Sub-Servicers . . . . . . . . . . . . . . . 2
2.2. Servicing Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3. Collections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4. Reconciliation of Deposits. . . . . . . . . . . . . . . . . . . . . . . 8
2.5. Servicing Compensation. . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SERVICER AND THE SUB-SERVICERS . . . . . . . . . . . 9
3.1. Corporate Existence; Compliance with Law. . . . . . . . . . . . . . . . 9
3.2. Corporate Power; Authorization; Consents. . . . . . . . . . . . . . . . 10
3.3. Enforceability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.4. No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.5. No Material Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6. Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.7. No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.8. Servicing Ability . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.9. Location of Records . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
COVENANTS OF THE SERVICER. . . . . . . . . . . . . . 11
4.1. Delivery of Daily Reports . . . . . . . . . . . . . . . . . . . . . . . 11
4.2. Delivery of Monthly Settlement Statement. . . . . . . . . . . . . . . . 12
4.3. Delivery of Quarterly Servicer's Certificate. . . . . . . . . . . . . . 12
4.4. Delivery of Independent Public Accountants' Servicing Reports . . . . . 13
4.5. No Guarantee or Assumption of Company's Liabilities.. . . . . . . . . . 13
4.6. Extension, Amendment and Adjustment of Receivables; Amendment of
and Compliance with Policies . . . . . . . . . . . . . . . . . . . . 13
4.7. Servicer's Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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4.8. Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9. Location of Records . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.10. Visitation Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.11. Lockbox Agreement; Lockbox Accounts; Eligible Segregated
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.12. Delivery of Financial Statements . . . . . . . . . . . . . . . . . . . 15
4.13. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER AND THE SUB-SERVICERS . . . 16
5.1. Merger, Consolidation, etc. . . . . . . . . . . . . . . . . . . . . . . 16
5.2. Indemnification of the Trust and the Trustee. . . . . . . . . . . . . . 17
5.3. Servicer Not to Resign. . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4. Access to Certain Documentation and Information Regarding the
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
SERVICER DEFAULTS. . . . . . . . . . . . . . . . 18
6.1. Servicer Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2. Trustee to Act; Appointment of Successor. . . . . . . . . . . . . . . . 21
6.3. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . 24
7.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.2. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.4. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.5. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.6. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . 24
7.7. Merger and Integration. . . . . . . . . . . . . . . . . . . . . . . . . 24
7.8. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.9. No Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.10. No Bankruptcy Petition . . . . . . . . . . . . . . . . . . . . . . . . 25
7.11. Consequential Damages. . . . . . . . . . . . . . . . . . . . . . . . . 25
EXHIBITS
EXHIBIT A Form of Quarterly Servicer's Certificate
EXHIBIT B Form of Agreed Upon Procedures
SCHEDULE 1 Lockbox Accounts, Lockbox Processors, Collection P.O. Boxes
and Eligible Segregated Accounts
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SERVICING AGREEMENT, dated as of April 1, 1998, among CM Capital
Corporation, a Delaware corporation (the "COMPANY"); Core-Mark International,
Inc. a Delaware corporation ("CORE-MARK"), as servicer (in such capacity, the
"SERVICER") and each of its other subsidiaries from time to time parties hereto
(each, a "SUB-SERVICER") and The Chase Manhattan Bank, a New York banking
corporation, not in its individual capacity, but solely as trustee (in such
capacity, the "TRUSTEE").
W I T N E S E T H :
WHEREAS, the Company and the Sellers (as defined in the Pooling
Agreement referred to below) have entered into a Receivables Sale and
Contribution Agreement, dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the "RECEIVABLES SALE AGREEMENT");
WHEREAS, pursuant to the Receivables Sale Agreement, the Sellers sell
and contribute to the Company, and the Company purchases and receives from the
Sellers, all of the Sellers' right, title and interest in, to and under the
Receivables (as defined in the Pooling Agreement referred to below) now existing
or hereafter created and in the rights of the Seller in, to and under all
Related Property related thereto;
WHEREAS, the Company in turn has transferred the Receivables now
existing or hereafter created and the rights of the Company in, to and under all
Related Property related thereto to a master trust pursuant to a Pooling
Agreement, dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the "POOLING AGREEMENT"), among the Company, the
Servicer and the Trustee; and
WHEREAS, the parties hereto wish to enter into 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
I.1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
which are used herein shall have the meanings assigned to such terms in Section
1.1 of the Pooling Agreement, as defined above, and each Supplement defined
therein, among the Company, the Servicer and the Trustee.
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I.2. OTHER DEFINITIONAL PROVISIONS. (a) All terms defined herein
or in the Pooling Agreement or any Supplement shall have their defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) 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 of the Pooling Agreement or any Supplement, and accounting terms partly
defined in Section 1.1 of the Pooling Agreement or any Supplement 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.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, 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.
(d) The definitions contained in Section 1.1 of the Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine, the feminine and the neuter genders of such terms.
(e) Where reference is made in this Agreement or the Pooling Agreement
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 the Pooling Agreement) of such Receivables.
(f) 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.
(g) All references herein to any agreement or instrument shall be
deemed references to such agreement or instrument as amended, supplemented or
otherwise modified from time to time.
ARTICLE II
ADMINISTRATION AND SERVICING
OF RECEIVABLES
II.1. APPOINTMENT OF SERVICER AND SUB-SERVICERS. Core-Mark
hereby agrees to act as the Servicer under the Pooling and Servicing Agreement,
the Company and the Trustee hereby consent to Core-Mark's acting as the
Servicer, and the Investor
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Certificateholders by their acceptance of the Certificates consent to
Core-Mark's acting as the Servicer. In addition, Core-Mark hereby agrees to
act as, the Company and the Trustee hereby consent to Core-Mark's being
appointed to act as, and the Investor Certificateholders by their acceptance
of the Certificates consent to Core-Mark's being appointed to act as, such
parties' agent to coordinate the servicing of the Receivables by the
Sub-Servicers. In such agency capacities, the Servicer will have
responsibility for the management of the servicing and administration of
Receivables and receipt of Collections in respect of the Receivables and will
have the authority to make any management decisions relating to the
Receivables to the extent such authority is granted to the Servicer under any
Pooling and Servicing Agreement. The Company, the Trustee and the Investor
Certificateholders shall treat Core-Mark as the Servicer and may conclusively
rely on the instructions, notices and reports of Core-Mark as Servicer for so
long as Core-Mark is the Servicer. In addition, (x) each Sub-Servicer agrees
to act as a Sub-Servicer under each Pooling and Servicing Agreement, (y) the
Company and the Trustee hereby consent to such Sub-Servicer's acting as a
Sub-Servicer and being appointed their agent to service and administer the
Receivables originated by it, and (z) the Investor Certificateholders by
their acceptance of the Certificates consent to such Sub-Servicer's acting as
a Sub-Servicer and being appointed their agent to service and administer the
Receivables originated by it. Each Sub-Servicer will be responsible, as
directed by the Servicer, for the servicing and administration of the
Receivables originated by such Sub-Servicer.
II.2. SERVICING PROCEDURES. (a) The Servicer shall manage the
servicing and administration of the Receivables, the collection of payments due
under the Receivables and the charging off of any Receivables as uncollectible,
all in accordance with the Policies and all the terms and provisions of the
Pooling and Servicing Agreements. The Servicer shall have full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable, but at all times
subject to the terms of this Agreement and the other Transaction Documents.
Without limiting the generality of the foregoing and subject to Section 6.1, the
Servicer or its designee is hereby authorized and empowered (i) to give
direction to the Trustee with respect to withdrawals from, and payments to, the
Collection Account (including the subaccounts thereof) in accordance with the
Daily Report and as otherwise specified in the Pooling and Servicing Agreements,
(ii) to execute and deliver, on behalf of the Trust for the benefit of the
Investor Certificateholders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables and (iii) to make any filings,
refilings, reports, notices, applications and registrations with, and to seek
any consents or authorizations from, the Securities and Exchange Commission and
any state securities authority on behalf of the Trust as may be necessary or
advisable to comply with any federal or state securities or reporting
requirements or laws.
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(b) Each Servicing Party shall, at its cost and expense and as
agent for the Company, the Trust and the Investor Certificateholders,
collect, consistent with its past practices and in accordance with the
Policies, as and when the same becomes due, the amount owing on each
Receivable with respect to which it is the Servicing Party. No Servicing
Party will make any material changes that deviate from the Policies in its
administrative, servicing and collection systems except (i) as expressly
permitted by the terms of any Pooling and Servicing Agreement and (ii) after
giving written notice to the Trustee and the Rating Agencies of any such
change. In the event of default under any Receivable, the responsible
Servicing Party shall have the power and authority, on behalf of the Company
and the Trust for the benefit of the Investor Certificateholders, to take
such action in respect of such Receivable as such Servicing Party may deem
advisable. In the enforcement or collection of any Receivable, the relevant
Servicing Party shall be entitled to sue thereon (i) in its own name or (ii)
if, but only if, the Company consents in writing (which consent shall not be
unreasonably withheld), as agent for the Company. In no event shall any
Servicing Party be entitled to take any action which would make the Company,
the Trustee or the Investor Certificateholders a party to any litigation
without the express prior written consent of such Person.
(c) Without limiting the generality of the foregoing and subject to
Section 6.2, each Servicing Party is hereby authorized and empowered to delegate
any or all of its servicing, collection, enforcement and administrative duties
hereunder with respect to the Receivables to a Person who agrees to conduct such
duties in accordance with the Policies. Such Servicing Party shall notify the
Company, the Trustee and any Rating Agency of the appointment of a designee as
provided for herein; PROVIDED, HOWEVER, that, in the event that such delegation
would reasonably be expected to adversely affect the ability of such Servicing
Party or the Servicer to perform its obligations in the manner contemplated by
any Pooling and Servicing Agreement, or otherwise to have a material adverse
effect upon the Receivables taken as a whole, such Servicing Party shall give
prior written notice to the Company, the Trustee, each Agent and the Rating
Agencies of any such delegation, and prior to such delegation's being effective,
such Servicing Party and the Servicer shall have received notice that the Rating
Agency Condition shall be satisfied after giving effect to such delegation and
shall have obtained the consent of the Company and each Agent to such
delegation. No delegation of duties by a Servicing Party permitted hereunder
will relieve such Servicing Party or the Servicer of its liability and
responsibility with respect to such duties.
(d) Except as provided in any Pooling and Servicing Agreement, neither
any Servicing Party nor any Successor Servicer shall be obligated to use
servicing procedures, offices, employees or accounts for servicing the
Receivables transferred to the Company and, subsequently, to the Trust, which
are separate from the procedures, offices, employees and accounts used by such
Servicing Party or such Successor Servicer, as the case may be, in connection
with servicing other receivables.
(e) Each Servicing Party shall maintain reasonable and customary
fidelity bond coverage insuring against losses through wrongdoing of its
officers and employees who are involved in the servicing of the Receivables,
including, without limitation, depositor's forgery.
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(f) Each Servicing Party shall comply with and perform its servicing
obligations with respect to the Receivables in accordance with the contracts, if
any, relating to the Receivables and the Policies, except insofar as any failure
to so comply or perform would not have (a) a material impairment of the ability
of the Servicer to perform its obligations under the Transaction Documents, (b)
a material impairment of the validity or enforceability of any of the
Transaction Documents against the Servicer, (c) a material impairment of the
collectibility of the Receivables serviced by the Servicer taken as a whole or
(d) a material impairment of the interests, rights or remedies of the Company
under or with respect to the Transaction Documents or the Receivables taken as a
whole (collectively, a "MATERIAL ADVERSE EFFECT").
(g) No Servicing Party shall take any action to cause any Receivable
to be evidenced by any "instrument" (other than an instrument which constitutes
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
Receivable are located)) or any title in bearer form except in connection with
its enforcement or collection of an Aged Receivable, in which event such
Servicing Party shall deliver such instrument to the Trustee as soon as
reasonably practicable but in no event more than 5 days after the execution
thereof. Each Servicing Party shall comply with the provisions of Schedule 3 to
the Pooling Agreement with respect to any chattel paper evidencing a Receivable.
II.3. COLLECTIONS. (a) As of the Initial Closing Date, the Servicer
shall have established Lockbox Accounts with Lockbox Banks, engaged Lockbox
Processors, opened Collection P.O. Boxes, and established Eligible Segregated
Accounts, in each case listed on Schedule 1 hereto and meeting the requirements
of clause (b) below, which are sufficient to allow collection of the Receivables
in accordance with the Pooling and Servicing Agreements. The Sub-Servicers, or
the Servicer on their behalf, shall instruct at all times all Obligors to make
all payments in respect of the Receivables to a Lockbox, a Lockbox Account, a
Collection P.O. Box, an Eligible Segregated Account or the Collection Account;
PROVIDED that to the extent that any Servicing Party in the normal course of its
business and consistent with past practices has permitted such Obligors to remit
payments to a Collector such Obligors may be instructed to continue to remit
payments to a Collector, subject in all cases to the provisions of this Section
2.3. Each Servicing Party is hereby authorized to collect payments in
accordance with the foregoing sentence. With respect to any payments in respect
of the Receivables that are made directly to any Servicing Party (including,
without limitation, to any Collection P.O. Box, or any employees of such
Servicing Party or independent contractors employed thereby other than a
Collector), such Servicing Party shall, within one Business Day of receipt
thereof, deposit such amounts (in the form received) to a Lockbox Account, or an
Eligible Segregated Account and, prior to forwarding such amounts, such
Servicing Party shall hold such payments in trust as custodian for the Trustee.
Any payments collected by a Collector shall be deposited (in the form received)
by a Collector, into a Lockbox Account or an Eligible Segregated Account within
one Business Day following receipt thereof; PROVIDED, that on any Business Day
all Collectors may hold in the aggregate up to $150,000 provided that in all
events such payments shall be deposited within three
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Business Days following receipt thereof. All Collections received in a
Lockbox shall, within one Business Day of receipt thereof, be deposited by
the applicable Lockbox Processor in a Lockbox Account. All immediately
available funds on deposit in a Lockbox Account shall be transferred by the
relevant Lockbox Bank to the Collection Account within one Business Day of
such funds becoming immediately available. All immediately available funds on
deposit in an Eligible Segregated Account shall be transferred by the
Eligible Segregated Account Bank to the Collection Account within one
Business Day of such funds becoming immediately available. Each of the
Company and each Servicing Party represents, warrants and agrees that all
Collections shall be collected, processed and deposited by it pursuant to,
and in accordance with the terms hereof and the other Pooling and Servicing
Agreements, the Lockbox Agreements and the Eligible Segregated Account
Agreements.
(b)(i) No Person shall act as a Lockbox Bank or a Lockbox Processor
unless it has entered into a Lockbox Agreement with the Company and, in the case
of a Lockbox Bank, unless the unsecured and uncollateralized obligations of such
Person (or its holding company parent) are rated in one of the three highest
long-term or short-term rating categories by each Rating Agency rating such
Person and, in the case of a Lockbox Processor, unless such person is bonded
against loss for an amount not less than $5,000,000 by a nationally recognized
bonding company. Each Lockbox Agreement shall provide that the Lockbox Bank or
the Lockbox Processor thereunder, as the case may be, is irrevocably directed,
and such Lockbox Bank or Lockbox Processor, as the case may be, irrevocably
agrees, to (i) deposit funds received in the Lockbox directly into the Lockbox
Account and (ii) in the case of a Lockbox Bank only, transfer immediately
available funds on deposit in the Lockbox Account within one Business Day of
such funds becoming immediately available to the Trustee for deposit in the
Collection Account. A new Lockbox Account may be designated by the Company and
the Servicer; PROVIDED that the Lockbox Bank or the Lockbox Processor, as the
case may be, chosen to maintain or process payments for deposit into such new
Lockbox Account shall have entered into a Lockbox Agreement with the Company,
the Servicer and the Trustee. The Company or the Servicer shall notify each
Rating Agency and the Trustee of the designation of a new Lockbox Account and
the related Lockbox and Lockbox Bank or Lockbox Processor, as the case may be.
Prior to any resignation of a Lockbox Bank or a Lockbox Processor or termination
of a Lockbox Bank or a Lockbox Processor by the Company or the Trustee, the
Servicer hereby agrees to obtain a replacement Lockbox Bank or Lockbox
Processor, as the case may be (which may be a Person currently acting as a
Lockbox Bank or Lockbox Processor, as the case may be), in the case of a Lockbox
Bank the unsecured and uncollateralized obligations of which (or of its holding
company parent) are rated in one of the three highest long-term or short-term
rating categories by each Rating Agency rating such replacement Lockbox Bank or,
in the case of a Lockbox Processor, which is bonded against loss for an amount
not less than $5,000,000 by a nationally recognized bonding company to serve
under a Lockbox Agreement.
(ii) No Person shall act as a Eligible Segregated Bank unless it has
entered into a Eligible Segregated Account Agreement with the Company and the
uncollateralized obligations of such Person (or its holding company parent) are
rated in one of the three highest long-term or short-term rating categories by
each Rating Agency rating such Person.
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Each Eligible Segregated Account Bank Agreement shall provide that the
Eligible Segregated Account Bank is irrevocably directed, and such Eligible
Segregated Account Bank, irrevocably agrees, to transfer immediately
available funds on deposit in the Eligible Segregated Account within one
Business Day of such funds becoming immediately available to the Trustee for
deposit in the Collection Account. A new Eligible Segregated Account may be
designated by the Company and the Servicer; PROVIDED that the Eligible
Segregated Account Bank chosen to maintain such new Eligible Segregated
Account shall have entered into an Eligible Segregated Account Bank Agreement
with the Company, the Servicer and the Trustee. The Company or the Servicer
shall notify each Rating Agency and the Trustee of the designation of a new
Eligible Segregated Account. Prior to any resignation of an Eligible
Segregated Account Bank or termination of an Eligible Segregated Account Bank
by the Company or the Trustee, the Servicer hereby agrees to obtain a
replacement Eligible Segregated Account Bank the unsecured and
uncollateralized obligations of which (or of its holding company parent) are
rated in one of the three highest long-term or short-term rating categories
by each Rating Agency rating such replacement Eligible Segregated Account
Bank.
(iii) Each Collection P.O. Box shall be opened in the name of the
Company (but which shall accept mail addressed to the Servicer or the Sellers)
and the Trustee shall be irrevocably authorized to collect mail from such
Collection P.O. Box in the event of a Servicer Default.
(c) The Trustee shall administer amounts on deposit in the Collection
Account, and the Servicer, on behalf of the Trust, shall, have the authority
revocable by the Trustee upon the occurrence and during the continuance of a
Servicer Default, to administer amounts on deposit in the Lockbox Accounts and
the Eligible Segregated Accounts, in each case in accordance with the terms of
the Pooling and Servicing Agreements. The Servicer and the Sub-Servicers, on
behalf of the Trust, (i) shall enforce all terms of each Lockbox Agreement and
Eligible Segregated Account Agreement against the relevant Lockbox Processor,
Lockbox Bank and Eligible Segregated Account Bank, as the case may be, and (ii)
shall take steps in a prompt and timely manner to replace any Lockbox Processor,
Lockbox Bank and Eligible Segregated Account Bank which does not comply with the
provisions of the relevant Lockbox Agreement or Eligible Segregated Account
Bank, as the case may be in all material respects. Each of the Company and each
Servicing Party acknowledges and agrees that (i) it shall not have any right to
withdraw any funds on deposit in the Collection Account, an Eligible Segregated
Account or any Lockbox Account and (ii) all amounts deposited in the Collection
Account, an Eligible Segregated Account or any Lockbox Account shall be under
the sole dominion and control of the Trustee (subject to the Servicer's
revocable right to direct the application of such amounts as provided by the
terms of any Pooling and Servicing Agreement).
(d) As soon as practicable but in any event not later than the
Business Day following the date that the Servicer determines, identifies and
certifies in writing to the Trustee that any of the collected funds received in
any of the Lockboxes, the Lockbox Accounts, the Eligible Segregated Accounts or
the Collection Account do not constitute Collections on account of the
Receivables, such monies which do not constitute such
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Collections shall be remitted to the applicable Seller to the extent such
determination and identification is reasonably satisfactory to the Trustee.
(e) All collections received or deposited in the Collection Account
as "Collections" shall be deemed, for purposes of the Transaction Documents,
to have been received or deposited as of the Business Day Received (as
defined in the immediately succeeding sentence). As used herein, the term
"BUSINESS DAY RECEIVED" shall mean (i) if funds are deposited in the
Collection Account by 1:00 p.m., New York City time, such day of deposit and
(ii) if funds are deposited in the Collection Account after 1:00 p.m., New
York City time, the Business Day next following such day of deposit.
(f) Unless otherwise required by law or unless an Obligor designates
that a payment be applied to a specific Receivable, all Collections received
from an Obligor shall be applied to the oldest Receivables of such Obligor.
II.4. RECONCILIATION OF DEPOSITS. If in respect of a Collection of a
Receivable any Servicing Party deposits into a Lockbox Account or Eligible
Segregated Account (a) a check received in respect of such Collection which
check is not honored for any reason or (b) an amount that is less than or more
than the actual amount of such Collection, such Servicing Party or the Servicer
shall, in lieu of making a reconciling withdrawal or deposit, as the case may
be, adjust the amount subsequently deposited into such Lockbox Account or
Eligible Segregated Account to reflect such dishonored check or mistake. Any
Receivable in respect of which a dishonored check is received shall be deemed
not to have been paid; PROVIDED that no adjustments made pursuant to this
Section 2.4 will change any amount previously reported pursuant to Section 4.2.
II.5. SERVICING COMPENSATION. (a) As full compensation for its
servicing activities hereunder and reimbursement for its expenses as set forth
in subsection 2.5(b), the Servicer shall be entitled to receive on each
Distribution Date for the preceding Settlement Period prior to the termination
of the Trust pursuant to Section 9.1 of the Pooling Agreement a servicing fee
(the "SERVICING FEE"). The Servicing Fee shall be an amount equal to (i) the
product of (A) the Servicing Fee Percentage and (B) the daily average aggregate
Principal Amount of the Receivables in the Trust for the Settlement Period
immediately preceding such Settlement Period (or, if such later Settlement
Period is the initial Settlement Period, the aggregate Principal Amount of the
Receivables at March 27, 1998) and (C) the number of days in such Settlement
Period, DIVIDED BY (ii) 360. Except as otherwise set forth in the related
Supplement, the share of the Servicing Fee allocable to each Outstanding Series
for any Settlement Period shall be an amount equal to the product of (i) the
Servicing Fee for such Settlement Period and (ii) a fraction (expressed as a
percentage) (A) the numerator of which is the daily average Invested Amount for
such Settlement Period with respect to such Series and (B) the denominator of
which is the daily average Aggregate Invested Amount for such Settlement Period
(with respect to any such Series, the "MONTHLY SERVICING FEE"). The Servicing
Fee shall be payable to the Servicer solely pursuant to the terms of, and to the
extent amounts are available for payment under, Article III of the Pooling
Agreement.
9
(b) The Company hereby directs the Servicer, and the Servicer
hereby agrees, to pay amounts due to the Trustee pursuant to Section 8.5 of
the Pooling Agreement and the reasonable fees and disbursements of
independent accountants and counsel, including the Trustee's reasonable
out-of-pocket expenses relating to the Trustee's inspections, if any, of the
Servicer's servicing facility in connection with the Trustee's role as
potential Successor Servicer, which inspections shall occur not more
frequently than once per calendar year, and all other fees and expenses of
the Trustee (including counsel fees, if any) not expressly stated in the
Pooling and Servicing Agreements to be for the account of the Investor
Certificateholders; PROVIDED, HOWEVER, that in no event shall the Servicer be
liable for any federal, state or local income or franchise tax, or any
interest or penalties with respect thereto, assessed on the Trust, the
Trustee or the Investor Certificateholders except in accordance with Section
5.2 and as otherwise expressly provided herein. Notwithstanding anything to
the contrary herein or in any other Pooling and Servicing Agreement, if the
Servicer is Core-Mark or an Affiliate thereof, in the event that the Servicer
fails to pay any amount due to the Trustee pursuant to Section 8.5 of the
Pooling Agreement, or following the commencement and continuance of an Early
Amortization Period, the Trustee shall be entitled, in addition to any other
rights it may have under law and under the Pooling Agreement, to receive
directly such amounts owing to it under the Pooling and Servicing Agreements
from, and in the same order of priority as, the Servicing Fee before payment
to the Servicer of any portion thereof; PROVIDED, that in the event the
Servicer shall have elected to waive its rights to payment of the Servicing
Fee or the Servicing Fee is deferred pursuant to subsection 2.5(a), the
Trustee shall nonetheless be entitled to receive such amounts from payments
which would ordinarily be applied to the payment of the Servicing Fee, in the
same order of priority as though such Servicing Fee were payable. The
Servicer shall be required to pay expenses for its own account, and shall not
be entitled to any payment therefor other than the Servicing Fee. Nothing
contained herein shall be construed to limit the obligation of the Servicer
or the Company to pay any amounts due the Trustee pursuant to Section 8.5 of
the Pooling Agreement or pursuant to the terms of any applicable Supplement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SERVICER AND THE SUB-SERVICERS
As of (a) the Initial Closing Date and (b) each Issuance Date, each
Servicing Party hereby makes the following representations and warranties to
each of the other parties hereto:
III.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Such Servicing Party
(i) is a corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) has all requisite
corporate 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, (iii) is duly qualified as a foreign corporation to
do business and in good standing (or is exempt from such requirements) under the
laws of each
10
jurisdiction in which the servicing of Receivables as required by this
Agreement requires such qualification and (iv) is in compliance with all
Requirements of Law applicable to the collection and servicing of Receivables
and the transactions contemplated by the Transaction Documents, except, in
the case of clauses (ii), (iii) and (iv), to the extent that a failure to
have such power, authority or right, to qualify and be in good standing or to
comply, as the case may be, would not reasonably be expected to have a
Material Adverse Effect.
III.2. CORPORATE POWER; AUTHORIZATION; CONSENTS. Such Servicing
Party has the corporate 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 corporate 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 such
Servicing Party other than (i) those consents which have duly been obtained
or made and are in full force and effect on the Initial Closing Date or the
relevant Issuance Date, as the case may be, (ii) any filings of UCC-1
financing statements necessary to perfect the Company's or the Trust's
interest in the Receivables and the Related Property, (iii) those that may be
required under state securities or "blue sky" laws in connection with the
offering or sale of Certificates and (iv) any such consent, authorization,
filing, notice or other act, the absence of which would not reasonably be
expected to have a Material Adverse Effect with respect to such Servicing
Party or the Servicer. This Agreement and each other Transaction Document to
which it is a party have been duly executed and delivered on behalf of such
Servicing Party.
III.3. ENFORCEABILITY. This Agreement and each other Transaction
Document to which it is a party constitute the legal, valid and binding
obligation of such Servicing Party enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights generally and except as
such enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
III.4. NO LEGAL BAR. The execution, delivery and performance of this
Agreement and each other Transaction Document to which it is a party will not
violate any Requirement of Law or Contractual Obligation of such Servicing Party
(other than any violation which would not reasonably be expected to have a
Material Adverse Effect with respect to such Servicing Party or the Servicer),
and will not result in, or require, the creation or imposition of any Lien
(other than Permitted Liens) on any of its properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
III.5. NO MATERIAL LITIGATION. (a) There are no actions, suits,
investigations or proceedings at law or in equity or by or before any
arbitrator, court or Governmental Authority now pending or, to the knowledge of
such Servicing Party, threatened against or
11
affecting it or any of its properties, revenues or rights which (i) involve
this Agreement, any of the other Transaction Documents to which such
Servicing Party is a party or any of the transactions contemplated hereby or
thereby or (ii) which could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
III.6. REQUIREMENTS OF LAW. Such Servicing Party is not in default
under or with respect to any Requirement of Law applicable to the collection and
servicing of Receivables and the transactions contemplated by the Transaction
Documents where such default would be reasonably likely to have a Material
Adverse Effect with respect to such Servicing Party or the Servicer. The
transactions hereunder and the use of the proceeds thereof will not violate any
Requirement of Law.
III.7. NO DEFAULT. Such Servicing Party is not in default under or
with respect to any of its Contractual Obligations applicable to the collection
and servicing of Receivables and the transactions contemplated by the
Transaction Documents in any respect which would be reasonably likely to have a
Material Adverse Effect with respect to such Servicing Party or the Servicer.
No Servicer Default or Potential Servicer Default has occurred and is
continuing.
III.8. SERVICING ABILITY. As of the related Issuance Date, there has
not been since the date of this Agreement any material adverse change in the
ability of such Servicing Party to perform its obligations as Servicer under any
Transaction Document.
III.9. LOCATION OF RECORDS. The offices at which such Servicing Party
keeps its records concerning the Receivables serviced by it either (i) are
located at the addresses set forth on Schedule 2 to the Receivables Sale
Agreement or (ii) have been notified to the Company and the Trustee in
accordance with the provisions of Section 4.9. The chief executive office of
such Servicing Party is located at one of such locations and is the place where
such Servicing Party is "located" for the purposes of Section 9-103(3)(d) of the
UCC as in effect in the State of New York.
ARTICLE IV
COVENANTS OF THE SERVICER AND THE SUB-SERVICERS
IV.1. DELIVERY OF DAILY REPORTS. Unless otherwise specified in the
Supplement with respect to any Series, for each Business Day (a "REPORTED DAY")
and with respect to each Outstanding Series, the Servicer shall submit to the
Trustee and the relevant Agent, if any, no later than 2:00 p.m., New York City
time, on the Business Day following each Reported Day, a written report
substantially in the form attached to the related Supplement of each such Series
(the "DAILY REPORT") setting forth for the Reported Day total Collections,
Receivables and Eligible Receivables created, and such other information as the
Trustee or such Agent may reasonably request. The Daily Report may be delivered
in an electronic format mutually agreed upon by the Servicer and the Trustee, or
pending such agreement, by
12
facsimile. By delivery of a Daily Report, the Servicer shall be deemed to
have made a representation and warranty that all information set forth
therein is true and correct in all material respects.
IV.2. DELIVERY OF MONTHLY SETTLEMENT STATEMENT. Unless otherwise
specified in the Supplement with respect to any Outstanding Series, the
Servicer hereby covenants and agrees that it shall deliver to the Trustee,
each Agent and each Rating Agency by 11:00 a.m., New York City time, on each
Settlement Report Date, a certificate of a Responsible Officer of the
Servicer substantially in the form attached to the related Supplement of each
such Series (a "MONTHLY SETTLEMENT STATEMENT") setting forth, as of the last
day of the Settlement Period most recently ended and for such Settlement
Period,(a) the information described in the form of such Monthly Settlement
Statement, with such changes as may be agreed to by the Servicer and the
Trustee, subject to satisfaction of the Rating Agency Condition (unless a
Responsible Officer of the Servicer certifies that such changes could not
reasonably be expected to have a materially adverse effect on the interests
of the Trust or the Investor Certificateholders for the applicable Series
under the Transaction Documents) and (b) such other information as the
Trustee may reasonably request. Such certificate shall include a
certification by a Responsible Officer of the Servicer that, to the best of
such Responsible Officer's knowledge, the information contained therein is
true and correct and the Servicer has performed in all material respects all
of its obligations under each Transaction Document throughout such preceding
Settlement Period (or, if there has been a material default in the
performance of any such obligation, specifying each such default known to
such officer and the nature and status thereof). A copy of each Monthly
Settlement Statement may be obtained by any Investor Certificateholder upon a
request in writing to the Trustee addressed to the Corporate Trust Office.
IV.3. DELIVERY OF QUARTERLY SERVICER'S CERTIFICATE. The Servicer
agrees that it shall deliver to the Trustee, each Agent and each Rating Agency,
a certificate of a Responsible Officer of the Servicer, substantially in the
form of Exhibit A hereto, stating that:
(a) a review of the activities of each of the Company and the
Servicer during the preceding calendar quarter (or in the case of the first
such certificate issued after the Initial Closing Date, during the period
from the Initial Closing Date) and of its performance under each
Transaction Document was made under the supervision of such Responsible
Officer; and
(b) to the best of such Responsible Officer's knowledge, based on
such review, (i) each of the Company and the Servicer has performed in all
material respects its obligations under each Transaction Document
throughout the period covered by such certificate (or, if there has been a
material default in the performance of any such obligation, specifying each
such default known to such Responsible Officer and the nature and status
thereof) and (ii) each Daily Report and Monthly Settlement Statement
delivered during such period was accurate and correct in all material
respects, except as specified in such certificate.
13
Such certificate shall be delivered by the Servicer within 45 days after the end
of each calendar quarter commencing with the quarter ending on or about June 30,
1998. A copy of such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
IV.4. DELIVERY OF INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORTS.
The Servicer shall cause Independent Public Accountants to furnish to the
Company, the Trustee and each Rating Agency within 120 days following December
31 of each year (beginning December 31, 1998) a letter to the effect that such
firm has performed certain agreed upon procedures (as set forth in Exhibit B
hereto) relating to the Receivables, the Servicer and each Sub-Servicer with
respect to the Receivables and each such Person's performance hereunder during
the preceding fiscal year and describing such firm's findings with respect to
such procedures. A copy of such report may be obtained by any Investor
Certificateholder upon a request in writing to the Trustee addressed to the
Corporate Trust Office.
IV.5. NO GUARANTEE OR ASSUMPTION OF COMPANY'S LIABILITIES. Each
Servicing Party hereby covenants and agrees that it will not guarantee or
assume the obligations or liabilities of the Company under the Pooling and
Servicing Agreements, or any other obligations or liabilities of the Company.
IV.6. EXTENSION, AMENDMENT AND ADJUSTMENT OF RECEIVABLES; AMENDMENT OF
AND COMPLIANCE WITH POLICIES. (a) Each Servicing Party hereby covenants and
agrees with the Trustee that it shall not extend, rescind, cancel, amend or
otherwise modify, or attempt or purport to extend, rescind, cancel, amend or
otherwise modify, the terms of, or grant any Dilution Adjustment to, any
Receivable, or otherwise take any action which is intended to cause or permit an
Eligible Receivable to cease to be an Eligible Receivable, except in any such
case (i) in accordance with the terms of the Policies, (ii) as required by any
Requirement of Law or (iii) in the case of any Dilution Adjustments (whether or
not permitted by any other clause of this sentence), upon the payment by or on
behalf of the applicable Seller of a Seller Adjustment Payment pursuant to
Section 2.05 of the Receivables Sale Agreement. Any Dilution Adjustment
authorized to be made pursuant to the preceding sentence shall result in the
reduction, on the Business Day on which such Dilution Adjustment arises or is
identified, in the aggregate Principal Amount of Receivables used to calculate
the Aggregate Receivables Amount. If, as a result of such a reduction, the
Aggregate Receivables Amount is less than the Aggregate Target Receivables
Amount, the Company (in addition to but without duplication of the obligation of
the applicable Seller under the Receivables Sale Agreement in respect of such
Dilution Adjustment) shall be required to pay into the Series Principal
Collection Sub-subaccount with respect to each Outstanding Series in immediately
available funds within one Business Day of such determination such Series' PRO
RATA share of the amount (the "CASH DILUTION PAYMENT") by which the Aggregate
Target Receivables Amount exceeds the Aggregate Receivables Amount.
(b) No Servicing Party shall make or permit to be made any change or
modification to the Policies in any material respect, except (i) if such changes
or modifications are necessary under any Requirement of Law, (ii) if such
changes or
14
modifications would not reasonably be expected to have a Material
Adverse Effect or (iii) if the Rating Agency Condition is satisfied with respect
thereto. The Servicer shall provide notice to the Company, the Trustee and each
Rating Agency of any modification of the Policies; 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 have a
Material Adverse Effect on the interests of the Investor Certificateholders of a
Series which is not rated by a Rating Agency, the consent of the applicable
Agent (or as specified in the related Supplement) shall be required to effect
such a change or modification.
(c) Each Servicing Party shall perform its obligations in accordance
with and comply in all material respects with the Policies.
IV.7. SERVICER'S CONDUCT. Each Servicing Party hereby agrees with the
Trustee that as Servicer or Sub-servicer it shall exercise the same degree of
skill and care in managing the administration and servicing of the Receivables,
and performing its obligations hereunder, as it would exercise if it were the
beneficial owner of all of such Receivables.
IV.8. SECURITY INTEREST. Each Servicing Party hereby covenants and
agrees that it shall not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on, any
Receivable sold and assigned to the Company or the Trust, whether now
existing or hereafter created, or any interest therein, and such Servicing
Party shall defend the right, title and interest of the Company and the Trust
in, to and under any Receivable sold and assigned to the Company or the
Trust, whether now existing or hereafter created, against all claims of third
parties claiming through or under such Servicing Party or the Company;
PROVIDED, HOWEVER, that nothing in this Section 4.8 shall prevent or be
deemed to prohibit any Servicing Party from suffering to exist upon any of
the Receivables any Permitted Liens described in clauses (i) and (iv) of the
definition thereof.
IV.9. LOCATION OF RECORDS. Each Servicing Party hereby covenants and
agrees that it (a) shall not move its chief executive office or any of the
offices where it keeps its records with respect to the Receivables outside of
the location specified in respect thereof on Schedule 2 to the Receivables Sale
Agreement, in any such case, without giving 30 days' prior written notice to the
Company, the Trustee and the Rating Agencies and (b) shall promptly take all
actions reasonably required (including but not limited to all filings and other
acts necessary or reasonably requested by the Trustee as being advisable under
the UCC) in order to continue the valid and enforceable interest of the Company
and the Trust in all Receivables now owned or hereafter created.
IV.10. VISITATION RIGHTS. (a) Each Servicing Party shall, at any
reasonable time during normal business hours on any Business Day and from time
to time, upon reasonable prior notice, according to such Servicing Party's
normal security and confidentiality requirements, permit (i) the Company, the
Trustee, any Agent or any of their respective agents or representatives (A) to
examine and make copies of and abstracts from the records, books of account and
documents (including computer tapes and disks) of such Servicing Party relating
to the Receivables and (B) following the occurrence of a Servicer Default or the
15
termination of the appointment of such Servicing Party, to be present at the
offices and properties of such Servicing Party to administer and control the
Collection of the Receivables and (ii) the Company, the Trustee, any Agent or
any of their respective agents or representatives to visit the properties of
such Servicing Party to discuss the affairs, finances and accounts of such
Servicing Party relating to the Receivables or such Servicing Party's
performance hereunder or under any of the other Transaction Documents to which
it is a party with any of its officers or directors and with its independent
certified public accountants; PROVIDED that the Company, the Trustee or such
Agent, as the case may be, shall notify such Servicing Party prior to any
contact with such accountants and shall give such Servicing Party the
opportunity to participate in such discussions.
(b) Each Servicing Party shall provide the Trustee with such other
information as the Trustee may reasonably request in connection with the
fulfillment of the Trustee's obligations under any Pooling and Servicing
Agreement.
IV.11. LOCKBOX AGREEMENT; LOCKBOX ACCOUNTS; ELIGIBLE SEGREGATED
ACCOUNTS. The Servicer shall (a) maintain, and keep in full force and effect,
each Lockbox Agreement, and Eligible Segregated Account Agreement, except to the
extent otherwise permitted under the terms of the Transaction Documents, and (b)
ensure that each related Lockbox Account and any Eligible Segregated Account
shall be free and clear of, and defend each such Lockbox Account and Eligible
Segregated Account against, any writ, order, stay, judgment, warrant of
attachment or execution or similar process.
IV.12. DELIVERY OF FINANCIAL STATEMENTS. The Servicer shall furnish
to the Trustee and the Rating Agencies:
(a) as soon as available, but in any event not later than 90 days
after the end of each fiscal year of Core-Mark, and so long as Core-Mark is
the Servicer, a copy of the audited consolidated balance sheets of Core-
Mark and its Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, shareholders' equity and cash flows of
Core-Mark and its Subsidiaries for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, and
accompanied by the opinion of Deloitte & Touche LLP or another nationally-
recognized independent public accounting firm, together with a certificate
of a Responsible Officer of Core-Mark, in each case stating that such
consolidated financial statements present fairly the financial position and
results of operations and changes in cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years. Such
opinion shall not be qualified or limited because of a restricted or
limited examination by such accountant of any material portion of Core-
Mark's or any of its Subsidiaries' records; and
(b) as soon as practicable, but in any event not later than 45 days
after the end of the first three fiscal quarters, a copy of the unaudited
consolidated balance sheets of Core-Mark and its Subsidiaries as at the end
of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows of Core-Mark
16
and its Subsidiaries for such fiscal quarter, and for the elapsed
portion of the fiscal year then ended, certified by an appropriate
Responsible Officer as being complete and correct and fairly presenting
the financial position and the results of operations of Core-Mark and
its Subsidiaries, setting forth in each case in comparative form the
figures as of and for the corresponding dates and periods in the
previous fiscal year.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
IV.13. NOTICES. The Servicer shall furnish to the Company, the
Trustee and each Rating Agency, promptly upon a Responsible Officer of the
Servicer obtaining knowledge of the occurrence of any Purchase Termination
Event, Potential Purchase Termination Event (each as defined in the Receivables
Sale Agreement), Early Amortization Event, Potential Early Amortization Event,
Servicer Default or Potential Servicer Default, written notice thereof.
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER AND THE SUB-SERVICERS
V.1. MERGER, CONSOLIDATION, ETC. No Servicing Party shall consolidate
with or merge into any other corporation or convey or transfer its properties
and assets substantially as an entirety to any Person (other than the Servicer
or another Servicing Party), unless:
(a) the corporation formed by such consolidation or into which such
Servicing Party is merged or the Person which acquires by conveyance or
transfer the properties and assets of such Servicing Party substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America or any State thereof or the District of
Columbia, and, if such Servicing Party is not the surviving entity, such
corporation shall assume, without the execution or filing of any paper or
any further act on the part of any of the parties hereto (except as may be
required in the context of an acquisition by conveyance or transfer of the
properties and assets of such Servicing Party substantially as an entirety
to such other Person), the performance of every covenant and obligation of
such Servicing Party hereunder; and
(b) such Servicing Party has delivered to the Trustee an officer's
certificate executed by a Vice President or more senior officer and an
Opinion of Counsel addressed to the Trust and the Trustee, each stating (i)
that such consolidation, merger, conveyance or transfer complies with this
Section 5.1 and (ii) that all conditions precedent herein provided for
relating to such transaction have been complied with; PROVIDED that such
Opinion of Counsel, in the case of clause (ii) above, may, to the
17
extent that such opinion concerns questions of fact, rely on such
officer's certificate with respect to such questions of fact.
V.2. INDEMNIFICATION OF THE TRUST AND THE TRUSTEE. (a) The
Servicer hereby agrees to indemnify and hold harmless the Trust and the
Trustee, for the benefit of the Investor Certificateholders and the Trustee
and its directors, officers, agents and employees (each of the foregoing, an
"INDEMNIFIED PERSON"), from and against any loss, liability, expense, damage
or injury suffered or sustained by reason of any acts, omissions or alleged
acts or omissions arising out of, or relating to, activities of the Servicer
pursuant to the Pooling and Servicing Agreements, including but not limited
to any judgment, award, settlement, reasonable attorneys' fees and other
reasonable costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; PROVIDED that the Servicer
shall not so indemnify any Indemnified Person for any loss, liability,
damage, injury, cost or expense of such Indemnified Person (i) arising solely
from a default by an Obligor with respect to any Receivable (other than
arising out of (A) any discharge, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment of any
Purchased Receivable (as defined in the Receivables Sale Agreement) arising
from the actions of the Servicer (including, without limitation, a defense
based on such Purchased Receivable's not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms as a result of such actions), or (B) a failure by the Servicer to
perform its duties or obligations under this Agreement), or (ii) to the
extent that such liability, cost or expense arises from the gross negligence
(or, in the case of the Trustee, negligence), bad faith or wilful misconduct
of such Indemnified Person or any other Indemnified Person (or any of their
respective directors, officers, agents or employees). The provisions of this
indemnity shall run directly to, and be enforceable by, an injured party and
shall survive the termination of this Agreement and the resignation of the
Servicer.
(b) In addition to and without giving effect to any limitations set
forth in subsection (a) above, the Servicer agrees to pay, indemnify and hold
each Indemnified Person harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred by or asserted against such Indemnified Person in any
way relating to or arising out of any Servicing Party's breach of any covenant
contained in subsections 2.2(f), 2.2(g), 4.6, 4.7 or 4.8 with respect to any
Receivable which materially and adversely affects the interest of the Trust or
the Investor Certificateholders pursuant to the Transaction Documents in any
Receivable or the collectibility of any Receivable (an "INDEMNIFICATION EVENT").
(c) The Servicer shall indemnify and hold harmless the relevant
Indemnified Person for such affected Receivable pursuant to subsection 5.2(b) by
depositing into the Collection Account in immediately available funds no later
than the next Settlement Report Date occurring at least 30 days after receipt by
the Servicer of written notice of an Indemnification Event given by the
applicable Seller, the Company or the Trustee or upon a Responsible Officer of
the Servicer obtaining knowledge of an Indemnification Event, an amount equal to
the outstanding Principal Amount of such Receivable (the "SERVICER
18
INDEMNIFICATION AMOUNT"). Upon each such indemnification by the Servicer, the
Trust shall automatically and without further action be deemed to transfer,
assign, and set over, and otherwise convey to the Servicer, without recourse,
representation or warranty, all right, title and interest of the Trust in and to
such Receivable, all monies due or to become due with respect thereto and all
proceeds thereof; and such 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 and take such other
actions as shall be reasonably requested by the Servicer to effect the
conveyance of any Receivable pursuant to this subsection. The obligation of the
Servicer to indemnify the Trust for any such Receivables shall constitute the
sole remedy respecting any breach of the covenants set forth in subsection
2.2(f), 2.2(g), 4.6, 4.7 or 4.8 with respect to such Receivables available to
Investor Certificateholders.
V.3. SERVICER NOT TO RESIGN. The Servicer shall not resign from the
obligations and duties hereby imposed on it except (a) upon determination that
(i) the performance of its duties hereunder is no longer permissible under
applicable law and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under
applicable law or (b) if the Servicer is terminated as Servicer pursuant to
Section 6.1. Any such determination permitting the resignation of the Servicer
shall be evidenced as to clause (a)(i) above by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation shall become effective
until a Successor Servicer or the Trustee shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 6.2.
The Trustee, the Company, each Agent and each Rating Agency shall be notified of
such resignation in writing by the Servicer.
V.4. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
RECEIVABLES. The Servicer and the other Servicing Parties will hold in trust
for the Trustee at their respective offices such computer programs, books of
account and other records as are reasonably necessary to enable the Trustee to
determine at any time the status of the Receivables and all collections and
payments in respect thereof (including, without limitation, an ability to
recreate records evidencing Receivables in the event of the destruction of the
originals thereof).
ARTICLE VI
SERVICER DEFAULTS
VI.1. SERVICER DEFAULTS. If, with respect to any Servicing Party, any
one of the following events (a "SERVICER DEFAULT") shall occur and be
continuing:
(a) failure by the Servicer to deliver, within two Business Days of
when due, any Daily Report or, within three Business Days of when due, any
Monthly Settlement Statement, in each case conforming in all material
respects to the requirements of Section 4.1 or 4.2;
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(b) failure by such Servicing Party to pay any amount required to be
paid by it under the Agreement or to give any direction with respect to the
allocation or transfer of funds under any Pooling and Servicing Agreement,
in each case on or before the date occurring five Business Days after the
date such payment is due or such allocation or transfer is required to be
made;
(c) failure on the part of such Servicing Party duly to observe or
perform in any material respect any other covenants or agreements of such
Servicing Party set forth in any Pooling and Servicing Agreement, which
failure has a material adverse effect on the holders of any Outstanding
Series or on the collectibility of the Receivables as a whole and which
material adverse effect continues unremedied for 30 days after the earlier
to occur of (i) the date upon which a Responsible Officer of such Servicing
Party obtains knowledge of such failure or (ii) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Company and the Servicer by the Trustee, or to the Company,
the Servicer and the Trustee by holders of Investor Certificates evidencing
25% or more of the Invested Amount of any Outstanding Series or by any
Agent; PROVIDED that no Servicer Default shall be deemed to occur under
this subsection (c) if, to the extent applicable, any Servicing Party shall
have complied with the provisions of subsections 5.2(b) and (c) with
respect thereto;
(d) any representation, warranty or certification made by such
Servicing Party in any Pooling and Servicing Agreement or in any
certificate delivered pursuant thereto shall prove to have been incorrect
when made or deemed made, which incorrectness has a material adverse effect
on the holders of any Outstanding Series or on the collectibility of the
Receivables as a whole and which material adverse effect continues
unremedied for 30 days after the earlier to occur of (i) the date upon
which a Responsible Officer of such Servicing Party obtains knowledge of
such failure or (ii) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company
and the Servicer by the Trustee, or to the Company, the Servicer and the
Trustee by holders of Investor Certificates evidencing 25% or more of the
Invested Amount of any Outstanding Series or by any Agent; PROVIDED that no
Servicer Default shall be deemed to occur under this subsection (d) if, to
the extent applicable, any Servicing Party shall have complied with the
provisions of subsections 5.2(b) and (c) with respect thereto;
(e) (i) such Servicing Party 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 such Servicing Party shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against
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such Servicing Party any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against such Servicing Party 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 which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 such days from the entry thereof; or
(iv) such Servicing Party shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clauses (i), (ii), or (iii) above; or (v) such
Servicing Party shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(f) there shall have occurred and be continuing an Early Amortization
Event under Sections (a), (b), (h) or (l) of the Supplement for Series
1998-1, or such similar provisions as may be applicable to any other Series
of Investor Certificates issued by the Trust;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied (or waived in accordance with the terms of the
Transaction Documents), the Trustee may, and at the written direction of the
holders of Investor Certificates evidencing more than 50% of the Aggregate
Invested Amount voting as a single class, the Trustee shall, by notice then
given in writing to such Servicing Party, each Agent and each Rating Agency
(a "TERMINATION NOTICE"), terminate all or any part of the rights and
obligations of such Servicing Party as Servicer or as a Sub-Servicer, as the
case may be, under the Pooling and Servicing Agreements. Notwithstanding
anything to the contrary in this Section 6.1, a delay in or failure of
performance referred to under clause (a) or (b) above for a period of 10
Business Days after the applicable grace period or a delay in or failure of
performance referred to under clause (c) above for a period of 30 Business
Days after the applicable grace period shall not constitute a Servicer
Default, if such delay or failure could not have been prevented by the
exercise of reasonable diligence by such Servicing Party and such delay or
failure was caused by a Force Majeure Delay. After receipt by a Servicing
Party of a Termination Notice, and on the date that a Successor Servicer
shall have been appointed by the Trustee pursuant to Section 6.2, all
authority and power of such Servicing Party under any Pooling and Servicing
Agreement to the extent specified in such Termination Notice shall pass to
and be vested in a Successor Servicer (a "SERVICE TRANSFER"); and, without
limitation, the Trustee is hereby authorized and empowered (upon the failure
of a Servicing Party to cooperate) to execute and deliver, on behalf of such
Servicing Party, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of such Servicing Party to execute or deliver
such documents or instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of such Service
Transfer. Each Servicing Party agrees to cooperate with the Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of a Servicing Party to conduct servicing hereunder, including,
without limitation, the transfer to such Successor Servicer of all
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authority of a Servicing Party to service the Receivables provided for under
the Pooling and Servicing Agreements, including, without limitation, all
authority over all Collections which shall on the date of transfer be held by
a Servicing Party for deposit, or which have been deposited by a Servicing
Party, in the Collection Account, or which shall thereafter be received with
respect to the Receivables, and in assisting the Successor Servicer. Upon a
Service Transfer, the relevant Servicing Party shall promptly (x) assemble
all of its documents, instruments and other records (including credit files,
licenses, rights, copies of all relevant computer programs and any necessary
licenses for the use thereof, related material, computer tapes, disks,
cassettes and data) that (i) evidence or will evidence or record Receivables
sold and assigned to the Trust and (ii) are otherwise necessary or desirable
to enable a Successor Servicer to effect the immediate Collection of such
Receivables, with or without the participation of the applicable Seller and
Servicing Party or the Servicer and (y) deliver or license the use of all of
the foregoing documents, instruments and other records to the Successor
Servicer at a place designated thereby. In recognition of such Servicing
Party's need to have access to any such documents, instruments and other
records which may be transferred to such Successor Servicer hereunder,
whether as a result of its continuing responsibility as a servicer of
accounts receivable which are not sold and assigned to the Trust or
otherwise, such Successor Servicer shall provide to such Servicing Party
reasonable access to such documents, instruments and other records
transferred by such Servicing Party to it in connection with any activity
arising in the ordinary course of such Servicing Party's business; PROVIDED
that such Servicing Party shall not disrupt or otherwise interfere with the
Successor Servicer's use of and access to such documents, instruments and
other records. To the extent that compliance with this Section 6.1 shall
require a Servicing Party to disclose to the Successor Servicer information
of any kind which such Servicing Party reasonably deems to be confidential,
the Successor Servicer shall be required to enter into such customary
licensing and confidentiality agreements as such Servicing Party shall deem
necessary to protect its interest. All costs and expenses incurred by the
defaulting Servicing Party, the Successor Servicer and the Trustee in
connection with any Service Transfer shall be for the account of such
defaulting Servicing Party.
VI.2. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a) On and after (i)
the receipt by a Servicing Party of a Termination Notice pursuant to Section 6.1
or (ii) the date on which
such Servicing Party notifies the Trustee, the Company, each Agent and each
Rating Agency in writing of its resignation pursuant to Section 5.3 (the
"RESIGNATION NOTICE"), such Servicing Party shall continue to perform (and
shall continue to receive its Servicing Fee) all servicing functions under
the Pooling and Servicing Agreements until the earlier of (x) the date on
which a Successor Servicer is appointed and (y) 60 days after the delivery of
such Termination Notice or Resignation Notice, as the case may be. The
Trustee shall, as promptly as reasonably possible after the giving of or
receipt of a Termination Notice or Resignation Notice, as the case may be,
appoint an Eligible Successor Servicer as successor servicer (the "SUCCESSOR
SERVICER"); PROVIDED that in the event that any Sub-Servicer shall cease to
be a Servicing Party for any reason, the Servicer shall be the Successor
Servicer with respect to such terminated Sub-Servicer for so long as the
Servicer shall continue to serve in its capacity as Servicer under the
Pooling and Servicing Agreements. The Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee.
22
(b) In the event that a Successor Servicer has not been appointed or
has not accepted its appointment at the time that the relevant Servicing Party
ceases to act as such, the Trustee without further action shall be appointed
Successor Servicer, PROVIDED that the Trustee shall only be responsible for the
duties and liabilities of such Successor Servicer which are consistent with an
orderly collection of the Receivables and other Trust Assets, in each case in
accordance with the Pooling and Servicing Agreements and, to the extent
applicable, the liquidation of the Receivables and the other Trust Assets. in
the manner contemplated for such liquidations in Section 7.2 of the Pooling
Agreement and the application of such funds in accordance with the Pooling and
Servicing Agreements. Consistent with the foregoing, in the event that the
Trustee becomes Successor Servicer, the Successor Servicer shall take such
collection actions as are commercially reasonable under the circumstances,
including, without limitation, electing not to pursue legal collection efforts
with respect to Receivables that it reasonably determines to be uncollectible.
The Trustee, as Successor Servicer, shall have no liability to the Investor
Certificateholders, the Company or the predecessor Servicer in electing such
actions. The Trustee may delegate any of its servicing obligations to an
affiliate or agent in accordance with subsection 2.2(c). Notwithstanding the
above, the Trustee shall, if the Trustee is legally unable so to act, petition a
court of competent jurisdiction to appoint any Person qualifying as an Eligible
Successor Servicer as the Successor Servicer hereunder. The Servicer shall
immediately give notice to each Rating Agency of the receipt of any Termination
Notice and the appointment of a Successor Servicer. The Successor Servicer and
any director or officer or employee or agent of the Successor Servicer may rely
in good faith on any document delivered hereunder believed by it to be genuine.
The Successor Servicer shall not be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its duties to service the
Receivables in accordance with this Agreement or any other Pooling and Servicing
Agreement, PROVIDED, HOWEVER, that this provision shall not protect the
Successor Servicer or any such Person against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties hereunder. The Successor Servicer may undertake
any legal action which it may deem necessary or desirable for the benefit of
Investor Certificate Holders with respect to this Agreement and any other
Pooling and Servicing Agreement and the rights and duties of the parties thereto
and the interest of the Investor Certificate Holders thereunder.
(c) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicing Party to which it is successor with
respect to servicing functions under the Pooling and Servicing Agreements (with
such changes as are agreed to between such Successor Servicer and the Trustee)
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on such Servicing Party by the terms and provisions
hereof, and all references in any Pooling and Servicing Agreement to the
Servicer or the Sub-Servicer, as the case may be, shall be deemed to refer to
the Successor Servicer. The Successor Servicer shall manage the servicing and
administration of the Receivables, the collection of payments due under the
Receivables and the charging off of any Receivables as uncollectible, with
reasonable care, using that degree of skill and attention that is the customary
and usual standard of practice of prudent receivables servicers with respect to
all
23
comparable receivables serviced for itself or others. The Successor Servicer
shall not be liable for, and the Servicer shall indemnify the Successor
Servicer against costs incurred by the Successor Servicer as a result of, any
acts or omissions of any Servicing Party or any events or occurrences
occurring prior to the Successor Servicer's acceptance of its appointment as
Successor Servicer.
(d) The Company and the Trustee will review any bids obtained from
Eligible Successor Servicers and the Company and the Trustee, or the Company
(with the consent of the Trustee), may appoint any Eligible Successor Servicer
submitting such a bid as a Successor Servicer for servicing compensation not in
excess of the Servicing Fee.
(e) All authority and power granted to the Successor Servicer under
any Pooling and Servicing Agreement shall automatically cease and terminate on
the Trust Termination Date, and shall pass to and be vested in the Company and,
without limitation, the Company is hereby authorized and empowered to execute
and deliver, on behalf of the Successor Servicer, as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights from and after the Trust Termination Date. The
Successor Servicer agrees to cooperate with the Company in effecting the
termination of the responsibilities and rights of the Successor Servicer to
conduct servicing on the Receivables. The Successor Servicer shall transfer all
of its records relating to the Receivables to the Company in such form as the
Company may reasonably request and shall transfer all other records,
correspondence and documents to the Company in the manner and at such times as
the Company shall reasonably request. To the extent that compliance with this
Section 6.2 shall require the Successor Servicer to disclose to the Company
information of any kind which the Successor Servicer deems to be confidential,
the Company shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall reasonably deem
necessary to protect its interests.
VI.3. WAIVER OF PAST DEFAULTS. Holders of Investor Certificates
evidencing more than 50% of the Aggregate Invested Amount may waive any
continuing default by any Servicing Party or the Company in the performance
of their respective obligations hereunder and its consequences, except a
default in the failure to make any required deposits or payments in respect
of any Series of Certificates, which shall require a waiver by the holders of
all of the affected Investor Certificates. Upon any such waiver of a past
default, such default shall cease to exist, and any default arising therefrom
shall be deemed to have been remedied for every purpose of the Pooling and
Servicing Agreements. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly
so waived. Either the Company or the Servicer shall provide notice to each
Rating Agency of any such waiver.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
VII.1. AMENDMENT. This Agreement may only be amended, supplemented or
otherwise modified from time to time if such amendment, supplement or
modification is effected in accordance with the provisions of Section 10.1 of
the Pooling Agreement.
VII.2. TERMINATION. The respective obligations and responsibilities
of the parties hereto shall terminate on the Trust Termination Date (unless such
obligations or responsibilities are expressly stated to survive the termination
of this Agreement).
VII.3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO THE CONFLICTS OF LAWS PROVISIONS THEREOF), AND THE RIGHTS,
OBLIGATIONS AND REMEDIES OF EACH OF THE PARTIES HERETO SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
VII.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 days after being
deposited in the mail, postage prepaid, or, in the case of facsimile notice,
when received, addressed as set forth in Section 10.5 of the Pooling Agreement,
or to such other address as may be hereafter notified by the respective parties
hereto.
VII.5. 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. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
VII.6. THIRD-PARTY BENEFICIARIES. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the Investor
Certificateholders and their respective successors and permitted assigns.
Except as otherwise provided in this Article VII, no other person will have any
right or obligation hereunder.
VII.7. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement and the other Transaction Documents set
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 other Transaction Documents. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
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VII.8. HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
VII.9. NO SET-OFF. Except as expressly provided in this Agreement or
any other Transaction Document, each Servicing Party 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 Trust, the Trustee or any Investor Certificateholder.
VII.10. NO BANKRUPTCY PETITION. Each Servicing Party hereby covenants
and agrees that, prior to the date which is one year and one day after the Trust
Termination Date, it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law.
VII.11. CONSEQUENTIAL DAMAGES. In no event shall The Chase Manhattan
Bank, in its capacity as Successor Servicer (if applicable), be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if it has been advised of
the likelihood of such loss or damage and regardless of the form of action.
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IN WITNESS WHEREOF, the Company, the Servicer, the Sub-Servicers and
the Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
CM CAPITAL CORPORATION, as Company
By: /s/ ROBERT A. ALLEN
-------------------------
Name: Robert A. Allen
Title: President & CEO
CORE-MARK INTERNATIONAL, INC., as
Servicer
By: /s/ LEO F. KORMAN
-------------------------
Name: Leo F. Korman
Title: Sr. VP & CFO
CORE-MARK MIDCONTINENT, INC., as a Sub-
Servicer
By: /s/ LEO F. KORMAN
-------------------------
Name: Leo F. Korman
Title: Sr. VP & CFO
CORE-MARK INTERRELATED COMPANIES, INC.,
as a Sub-Servicer
By: /s/ LEO F. KORMAN
-------------------------
Name: Leo F. Korman
Title: Sr. VP & CFO
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Trustee
By: /s/ KIMBERLY K. COSTA
-------------------------
Name: Kimberly K. Costa
Title: Second Vice President