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«IMPORTANT NOTICE Attached please find an electronic copy of the Offering Circular (the “Offering Circular”), dated September 22, 2006 relating to ...»

-- [ Page 37 ] --

The Collateral Servicer will be responsible for its own expenses incurred in the course of performing its obligations under the Collateral Servicing Agreement; provided that the Issuer will pay and the Collateral Servicer shall not be liable for expenses and costs incurred in negotiating with issuers of Collateral Debt Securities as to proposed modifications or waivers, taking action or advising the Trustee with respect to the Issuer’s exercise of any rights or remedies in connection with the Collateral Debt Securities, U.S. Agency Securities and Eligible Investments, including in connection with an Offer or default, participating in committees or other groups formed by creditors of an issuer of Collateral Debt Securities, and consulting with and providing each Rating Agency with any information in connection with the maintenance of the ratings of the Notes.

The Collateral Servicer, its directors, officers, stockholders, partners, members, managers, agents and employees and its affiliates and their directors, officers, stockholders, partners, members, managers, agents and employees, will not be liable to the Co-Issuers, the Trustee, the Preference Share Paying Agent, the Noteholders, the Preference Shareholders, the Hedge Counterparty or any other person for any losses, claims, damages, judgments, assessments, costs or other liabilities incurred by the Co-Issuers, Trustee, the Preference Share Paying Agent, the Noteholders, the Preference Shareholders, the Hedge Counterparty or any other person that arise out of or in connection with the performance by the Collateral Servicer of its duties under the Collateral Servicing Agreement provided that the Collateral Servicer shall be liable to the Issuer for any losses, claims, damages, judgments, assessments, costs or other liabilities arising (i) by reason of acts or omissions constituting bad faith, willful misconduct, gross negligence or breach of fiduciary duty in the performance or reckless disregard of its obligations under the Collateral Servicing Agreement or (ii) by reason of the information concerning the Collateral Servicer provided by it for inclusion in the final Offering Circular, if such information contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Issuer will indemnify and hold harmless the Collateral Servicer, its affiliates and each of the directors, officers, stockholders, partners, members, managers, agents and employees of the Collateral Servicer or any of their respective affiliates from and against any and all losses, claims, damages, judgments, assessments, costs or other liabilities and all out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by any such indemnified party in investigating, preparing, pursuing or defending any claim, action, proceeding or investigation with respect to any pending or threatened litigation or investigation or inquiry by any governmental entity or self-regulatory organization to which the indemnified party belongs, caused by or arising out of or in connection with, the issuance of the Offered Securities, the transactions contemplated by this Offering Circular, the Indenture or the Collateral Servicing Agreement, and/or any action taken by, or any failure to act by, such indemnified person, in each case, as such expenses are incurred or paid;

provided that no such person shall be indemnified for any such liabilities or expenses arising (i) out of or in connection with acts or omissions constituting bad faith, willful misconduct, gross negligence or breach of fiduciary duty in the performance or reckless disregard of the obligations of the Collateral Servicer under the Collateral Servicing Agreement, (ii) out of or in connection with the information concerning the Collateral Servicer provided by it for inclusion in the final Offering Circular, if such information contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (iii) from liability to which such indemnified party would be subject by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the obligations of such indemnified party. Any such indemnification by the Issuer will be paid in accordance with the Priority of Payments.

The Collateral Servicer shall, subject to the terms and conditions of the Collateral Servicing Agreement and of the Indenture, perform its obligations thereunder with reasonable care (i) using a degree of skill and attention no less than that which the Collateral Servicer exercises with respect to comparable assets that it manages for itself and (ii) without limiting the foregoing, in a manner consistent with the customary standards, policies and procedures followed by institutional managers of national standing relating to assets of the nature and character of the Collateral (such standard of care, the “Collateral Servicer Standard of Care”). The Collateral Servicer shall comply with all the terms and conditions of the Indenture affecting the duties and functions that have been delegated to it thereunder and under the Collateral Servicing Agreement. However, the Collateral Servicer shall not be bound to follow any amendment to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided that the Collateral Servicer shall not be bound by any amendment to the Indenture that modifies the rights or increases the duties or liabilities of the Collateral Servicer unless the Collateral Servicer shall have consented thereto in writing.





Termination of the Collateral Servicing Agreement Certain Removal Events: Under the Collateral Servicing Agreement, the Collateral Servicer may

be removed in the following circumstances:

–  –  –

(a) Subject to paragraphs (b) and (c) below, the Collateral Servicer may be removed for cause, by 66-2/3% of the aggregate outstanding amount of Notes of the Controlling Class and (so long as no Event of Default shall have occurred and be continuing) the holders of 66-2/3% of the Preference Shares (excluding Notes and Preference Shares held by the Collateral Servicer or any of its Affiliates;

provided that voting rights with respect to any Preference Shares held by an Affiliate of VCA may be voted with respect to the removal of the Collateral Servicer by a majority of the independent directors of such Affiliate, determined in accordance with the governance documents of such Affiliate (VCA being required pursuant to the Collateral Servicing Agreement to provide to the Trustee information relating to such directors, necessary for the Trustee to make any such determination), upon 10 days’ prior written notice to the Collateral Servicer. For purposes of any such removal, “cause” shall mean any one of the

following events:

(i) the Collateral Servicer fails to make, when due, any payment to be made by the Collateral Servicer under the Collateral Servicing Agreement if such failure is not remedied on or before the tenth day after written notice of such failure is given to the Collateral Servicer.

(ii) the Collateral Servicer fails to comply with or perform, in any material respect, any agreement or obligation (other than a payment obligation) to be complied with or performed by the Collateral Servicer in accordance with the Collateral Servicing Agreement and such failure (if remediable) is not remedied on or before the 30th day after written notice of such failure is given to the Collateral Servicer;

(iii) a representation made or deemed to have been made by the Collateral Servicer in or pursuant to the Collateral Servicing Agreement proves to have been incorrect or misleading in any material respect when made or deemed to have been made and such misrepresentation (if remediable) is not remedied on or before the 30th day after written notice of such failure is given to such party;

(iv) the Collateral Servicer consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets to, another person and either (1) at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee person fails to assume all the obligations of such party under the Collateral Servicing Agreement by operation of law or pursuant to an agreement reasonably satisfactory to the other party to the Collateral Servicing Agreement or (2) the creditworthiness of the resulting, surviving or transferee person is materially weaker than that of such party immediately prior to such action;

(v) certain bankruptcy events occur with respect to the Collateral Servicer;

(vi) due to the adoption of, or any change in, any applicable law after the date of the Collateral Servicing Agreement, or, due to the promulgation of, or any change in, the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law after the date of the Collateral Servicing Agreement, it becomes unlawful for any party to perform any material obligation (contingent or otherwise) which such party has under the Collateral Servicing Agreement;

(vii) the Collateral Servicer commits fraud against the Issuer;

(viii) the Collateral Servicer or any of its principals is convicted of a felony relating to the Collateral Servicer’s primary business as an investment advisor; or the Collateral Servicer is indicted for, is adjudged liable in a civil suit for or is convicted of a violation of the Securities Act or any other federal securities law or rules and regulations thereunder relating to the Collateral Servicer’s primary business as an investment advisor;

(ix) an Event of Default occurs under the Indenture that results from any breach by the Collateral Servicer of its duties under the Indenture or the Collateral Servicing Agreement, which breach or default is not cured within any applicable cure period; or (x) the Collateral Servicer willfully breaches, or takes any action that it knows violates, any provision of the Collateral Servicing Agreement or any term of the Indenture applicable to it (not including a willful breach or knowing violation that results from a good faith dispute regarding reasonable alternative courses of action or interpretation of instructions).

(b) In addition to the foregoing and subject to paragraph (c) below, so long as any Class A-1 Notes remain outstanding, the Collateral Servicer may be removed for cause by act of the holders of a majority of the aggregate outstanding amount of the Class A-1 Notes if (i) an Event of Default under the Indenture relating to the payments described under clauses (a)(i) or (b) under “The Indenture— Events of Default” has occurred, which occurrence is not cured within the applicable cure period; (ii) the holders of a majority of the aggregate outstanding amount of the Class A-1 Notes have determined in good faith that the Collateral Servicer has committed fraud against the Issuer; (iii) the Collateral Servicer fails to comply with or perform, in any material respect, any agreement or obligation (other than a payment obligation) to be complied with or performed by the Collateral Servicer in accordance with the Collateral Servicing Agreement and such failure (if remediable) is not remedied on or before the 30th day after written notice of such failure is given to the Collateral Servicer, (iv) the Collateral Servicer or any of its principals is convicted of a felony relating to the Collateral Servicer’s primary business as an investment advisor; or the Collateral Servicer is indicted for, is adjudged liable in a civil suit for or is convicted of a violation of the Securities Act or any other federal securities law or rules and regulations thereunder relating to the Collateral Servicer’s primary business as an investment advisor; or (v) on any Measurement Date occurring on or after the Ramp-Up Completion Date, the Net Outstanding Portfolio Collateral Balance divided by the Aggregate Outstanding Amount of the Class A-1 Notes plus the Class A-2 Notes fails to be equal to or greater than 100%.

(c) No such termination or removal shall be effective (i) until the date as of which a successor Collateral Servicer shall have agreed in writing to assume all of the Collateral Servicer’s duties in accordance with the Collateral Servicing Agreement and (ii) unless the terms described under “—Successor Required” below have been met.

–  –  –

The Collateral Servicing Agreement will automatically terminate upon the earliest to occur of:

(i) the payment in full of the Notes and the termination of the Indenture in accordance with its terms and the redemption of the Preference Shares;

(ii) the liquidation of the Collateral and the final distribution of the proceeds of such liquidation as provided in the Indenture;

(iii) the determination in good faith by the Issuer that the appointment or conduct of the Collateral Servicer has caused the Issuer, the Co-Issuer or the pool of Collateral to become required to be registered under the provisions of the Investment Company Act, which conduct is not remedied on or before the 30th day after written notice of such determination by the Issuer is given to the Collateral Servicer; and (iv) the determination in good faith by the Issuer that the appointment or conduct of the Collateral Servicer has caused the Issuer to be engaged in a trade or business in the United States for United States Federal income tax purposes (except to the extent that it owns Equity Securities or Defaulted Securities to the extent permitted in the Indenture), which conduct is not remedied (which shall include, but not be limited to, the payment of any tax liability to the Issuer by the Collateral Servicer) on or before the 30th day after written notice of such determination by the Issuer is given to the Collateral Servicer.

–  –  –

Subject to the terms described under “—Successor Required” below, the Collateral Servicer may resign, upon 90 days’ (or such shorter notice as is acceptable to the Issuer) written notice to the Issuer.

–  –  –



Pages:     | 1 |   ...   | 35 | 36 || 38 | 39 |   ...   | 57 |


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