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NATIONAL AUTO FINANCE COMPANY L.P.
Depositor,
THE CHASE MANHATTAN BANK (USA)
Owner Trustee
and
the CO-TRUSTEES
FIRST AMENDED AND RESTATED TRUST AGREEMENT
of
NAFCO Funding Trust,
Dated as of December 8, 1994
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TABLE OF CONTENTS
ARTICLE I
Definitions
1.01. Definitions.......................................................... 1
ARTICLE II
Declaration of Business Trust; Issuance
and Transfer of Certificates of Beneficial
Interest; Duties of Owner Trustee
2.01. Declaration of Business Trust........................................ 4
2.02. Transfer of Trust Property to Owner Trustee.......................... 5
2.03. Issuance and Transfer of Certificates of Beneficial Interest......... 5
2.04. Payments and Distributions........................................... 7
2.05. ..................................................................... 8
2.06. Further Assurances................................................... 8
2.07. Activities of Trust.................................................. 8
2.08. Duties of Owner Trustee.............................................. 9
2.09. Instructions of the Co-Trustees...................................... 10
2.10. Furnishing of Documents.............................................. 11
2.11. Situs of Trust....................................................... 11
2.12. Title to Trust Property.............................................. 11
ARTICLE III [Reserved]
ARTICLE IV
Representations and Warranties of Depositor
4.01. Good Standing........................................................ 12
4.02. Partnership Power.................................................... 12
4.03. Consents and Approvals............................................... 12
4.04. Title to Trust Property.............................................. 13
4.05. Binding Effect....................................................... 13
4.06. Investment Company................................................... 13
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ARTICLE V
Representations and Warranties
of The Chase Manhattan Bank (USA)
5.01. Good Standing........................................................ 13
5.02. Corporate Power...................................................... 13
5.03. Consents and Approvals............................................... 14
5.04. Binding Effect....................................................... 14
ARTICLE VI
Certain Covenants of Depositor, Owners of
Certificates of Beneficial Interest and the Trust
6.01. Title to Trust Property.............................................. 15
6.02. Notification of Transfer............................................. 15
6.03. Investment Company................................................... 15
6.04. Certain Business Conduct............................................. 15
ARTICLE VII
Concerning the Owner Trustee and the Trust
7.01. General Matters Relating to the Owner Trustee........................ 17
7.02. Books and Records; Mailings to Owners of
Certificates of Beneficial Interest.................................. 19
7.03. Compensation and Indemnification of the Owner Trustee................ 19
7.04. Resignation, Discharge or Removal of Owner Trustee; Successor........ 21
7.05. Qualification of Owner Trustee....................................... 23
7.06. Appointment of Additional Trustees................................... 23
7.07. Not Acting in Individual Capacity.................................... 23
7.08. Liability of the Certificateholder................................... 23
7.09. Acting in its Own Name............................................... 24
7.10. Decisions by Owner Trustee........................................... 24
ARTICLE VIII
Co-Trustees
8.01. Appointment of Co-Trustees........................................... 24
8.02. Qualification; Number; Term.......................................... 25
8.03. Places of Meetings, Quorum and Manner of Voting...................... 26
8.04. Indemnification; Remuneration........................................ 26
8.05. Not Acting in Individual Capacity.................................... 27
8.06. Separate Class....................................................... 27
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ARTICLE IX
Accounts of the Trust
9.01. Accounts of the Trust................................................ 27
9.02. Investment of Amounts on Deposit in Accounts of the Trust............ 28
ARTICLE X
Miscellaneous
10.01. Benefit of Agreement................................................ 28
10.02. Severability........................................................ 28
10.03. Amendments and Waivers.............................................. 28
10.04. Notices............................................................. 29
10.05. Termination of This Agreement; No Power to
Revoke or Withdraw Trust Property................................... 29
10.06. Nature of Interest in Trust Property................................ 30
10.07. No Filing........................................................... 30
10.08. GOVERNING LAW....................................................... 30
10.09. Counterparts........................................................ 31
10.10. Limitations on Rights of Others..................................... 31
10.11. References to Sections.............................................. 31
10.12. Administrator....................................................... 31
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FIRST AMENDED AND RESTATED TRUST AGREEMENT relating to NAFCO Funding Trust,
dated as of December 8, 1994, between National Auto Finance Company L.P., a
Delaware limited partnership (herein, together with its permitted successors and
assigns, the "Depositor") and The Chase Manhattan Bank (USA), a Delaware banking
corporation (the "Owner Trustee") and the Co-Trustees identified herein (the "Co
Trustees").
This Agreement amends and restates in its entirety the Trust Agreement
entered into on October 5, 1994, by and between National Auto Finance
Corporation and Bankers Trust (Delaware). National Auto Finance Corporation and
Bankers Trust (Delaware) hereby acknowledge and agree to the amendment and
restatement of the Trust Agreement entered into by them.
In consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
1.01. Definitions. Capitalized terms set forth below shall have the
following meanings when used in this Agreement:
"Actual Knowledge" means the actual knowledge of any Authorized Officer of
the Owner Trustee.
"Affiliate" of any Person means any other Person controlling, controlled by
or under common control with such Person. Control shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and "Controlling" and "Controlled" shall
have meanings correlative thereto.
"Agreement" means this Trust Agreement.
"Authorized Officer" means any officer within the corporate trust
department of the Owner Trustee (or any successor group of such entity)
including any vice president, second vice president, assistant secretary or any
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other officer of such entity customarily performing such functions similar to
those performed by the persons who at the time shall be such officers, or to
whom any corporate trust matter is referred because of his or her knowledge of
and familiarity with the particular subject.
"Business Day" means a day on which the Owner Trustee and banks located in
New York City are open for the purpose of conducting commercial business.
"Certificate of Beneficial Interest" means any certificate representing a
beneficial ownership interest in the Trust in substantially the form attached
hereto as Annex 1.
"Certificateholder" means any holder of a Certificate of Beneficial
Interest in the Trust.
"Certificate Registrar" shall have the meaning set forth in Section 2.03(d)
hereof.
"Closing Date" means December 8, 1994.
"Code" means the Internal Revenue Code of 1986.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" of a Person means the principal office of the
Owner Trustee in Delaware at which at any particular time its corporate trust
business shall be principally administered, which office on the Closing Date is
located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
"Co-Trustee" means each of the co-trustees designated in Section 8.01
hereof and any successors thereto.
"Depositor" means National Auto Finance Company L.P., a Delaware limited
partnership and its successors and assigns.
"Independent Co-Trustee" is defined in Section 8.02(a) hereof.
"Lien" means any lien, mortgage, security interest, pledge, charge, equity
or claim of others or encumbrance of any kind.
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"Owner Trustee" means The Chase Manhattan Bank (USA), a Delaware banking
corporation acting not in its individual capacity, but solely in its fiduciary
capacity as trustee hereunder, and any banking corporation that shall have
become its successor pursuant to Section 7.04 hereof.
"NAFCO Note" means the note issued to the Depositor by the Trust pursuant
to the Purchase Agreement.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Pooling and Administration Agreement" means that certain Pooling and
Administration Agreement, dated as of December 8, 1994 by and among NAFCO, as
transferor, National Auto, as Administrator, and Bankers Trust Company, as
Trustee, as the same may be further amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with the terms thereof.
"Purchase Agreement" means the Receivables Purchase Agreement, dated as of
December 8, 1994, entered into between the Depositor and the Trust whereby the
Receivables are sold to the Trust by the Depositor.
"Receivables" shall have the meaning assigned in Section 2.07(a)(i) hereof.
"Related Agreement" means any agreement executed and delivered in
connection with the issuance of the Certificates of Beneficial Interest and any
other agreement relating to the transactions contemplated hereby.
"Servicer" means World Omni Financial Corp., a Florida corporation.
"Servicing Agreement means the Servicing Agreement, dated July 25, 1994,
between the Depositor and the Servicer.
"Trust" means the trust existing pursuant to this Agreement, designated as
NAFCO Funding Trust.
"Trust Property" means all money, instruments and other property deposited
and held in the Trust pursuant hereto, including all proceeds thereof.
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As used in this Agreement, unless specified to the contrary in such
document, the definitions set forth or referred to below (1) shall apply equally
to both the singular and plural forms of the terms defined; (2) whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms; and (3) the words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
ARTICLE II
Declaration of Business Trust; Issuance
and Transfer of Certificates of Beneficial
Interest; Duties of Owner Trustee
2.01. Declaration of Business Trust. The Chase Manhattan Bank (USA) is
hereby appointed to hold and agrees to hold the Trust Property as Owner Trustee
in trust upon the terms and conditions and for the use and benefit of the owners
of the Certificates of Beneficial Interest as herein set forth.
It is the intention of the parties hereto that the trust created by this
Agreement constitute a business trust under the Business Trust Statute and that
this Agreement constitute the governing instrument of such business trust. The
Trust created under this Agreement is intended to be either a sole
proprietorship or a partnership for federal income tax purposes. It is not
intended to be an association taxable as a corporation. The provisions hereof
shall be interpreted accordingly and no party hereto shall take a contrary
position for federal income tax purposes. No later than the Closing Date, the
Owner Trustee shall file the Restated Certificate of Trust required by Section
3810 of the Business Trust Statute (as defined below), in the Office of the
Secretary of State of the State of Delaware to reflect the amendments thereto
(the "Certificate of Trust"). Effective as of the date hereof, the Owner Trustee
shall have all the rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
For purposes of this Agreement, "Business Trust Statute" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq., as the same may be
amended from time to time.
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2.02. Transfer of Trust Property to Owner Trustee.
(a) The Depositor has granted to the Owner Trustee and its successors,
forever, all right, title and interest of the Depositor in and to the sum of
twenty-five thousand Dollars ($25,000) pursuant to the terms of this Agreement;
and
(b) Upon execution and delivery of the Purchase Agreement, the Trust
shall accept all right, title and interest in the Receivables and other assets
acquired pursuant to the Purchase Agreement.
2.03. Issuance and Transfer of Certificates of Beneficial Interest.
(a) The Owner Trustee acknowledges it is holding in trust on the date
hereof the sum of twenty-five thousand Dollars ($25,000), in lawful money of the
United States of America, duly paid by the Depositor, and has issued a
Certificate of Beneficial Interest duly executed and delivered to the Depositor
in exchange therefor in substantially the form attached hereto as Annex 1,
evidencing ownership of 100% of the beneficial interest in the Trust.
(b) Each Certificate of Beneficial Interest shall be executed by
manual signature on behalf of the Owner Trustee by one of its Authorized
Officers. Certificates of Beneficial Interest bearing the manual signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Owner Trustee, will be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individual has ceased to
be so authorized prior to the delivery of such Certificates of Beneficial
Interest or does not hold such office at the date of such Certificates of
Beneficial Interest. Each Certificate of Beneficial Interest shall be dated the
date of its issuance.
(c) The owners of the Certificates of Beneficial Interest shall be
entitled to all rights provided to them under this Agreement and in the
Certificate of Beneficial Interest and shall be subject to the terms and
conditions contained in this Agreement and in the Certificate of Beneficial
Interest. A person shall be entitled to the rights and subject to the
obligations of an
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owner of a Certificate of Beneficial Interest hereunder upon such person's
acceptance of a Certificate of Beneficial Interest duly registered in such
person's name pursuant to Section 7.02 hereof.
(d) The Owner Trustee or its designee (the "Certificate Registrar")
shall cause to be kept at its Corporate Trust Office, in accordance with the
provisions of Section 7.02 hereof, a register (the "Certificate Register") in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of the Certificate of Beneficial
Interest. The registered Certificateholder shall have the right to inspect the
Certificate Register, subject to such reasonable regulations as the Certificate
Registrar shall prescribe. The person listed as the owner of a Certificate of
Beneficial Interest on the Certificate Register shall be treated as the owner of
such Certificate for purposes of this Agreement and otherwise.
(e) Neither the registered nor the beneficial interest in any
Certificate of Beneficial Interest may be transferred, assigned, hypothecated or
pledged in any manner. Any purported transfer or assignment of a Certificate of
Beneficial Interest other than as permitted herein, and any direct or indirect
beneficial interest therein, shall be null and void and shall not cause any
rights to inure to the benefit of the purported transferee. If, notwithstanding
this prohibition, a court of competent jurisdiction determines that a transfer
of a Certificate of Beneficial Interest has arisen by operation of law, such
involuntary transfer shall transfer to the transferee only the
Certificateholder's rights to distributions on the Certificate of Beneficial
Interest but such transferee shall not become a substitute registered
Certificateholder and shall not succeed to any of the rights of the
Certificateholder other than the right to receive distributions on the
Certificate of Beneficial Interest.
(f) Neither the Trust nor the Owner Trustee shall be required to
register the Certificates of Beneficial Interest under the Securities Act of
1933, as amended, or any other state or federal securities law, or to determine
whether any purported transfer is in compliance therewith. Each Certificate of
Beneficial Interest shall bear a legend setting forth restrictions on
transferability substantially as follows:
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"THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAWS, AND MAY BE OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE HOLDER HEREOF ONLY IN ACCORDANCE WITH THE TERMS OF
THE TRUST AGREEMENT."
(g) If (i) any mutilated Certificate of Beneficial Interest is
surrendered to the Owner Trustee or the Certificate Registrar or the Owner
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate of Beneficial Interest and (ii) there is delivered to the
Owner Trustee such security or indemnity as may be required by it to save it
harmless, then the Owner Trustee shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate of
Beneficial Interest, a new Certificate of Beneficial Interest of like tenor and
aggregate beneficial interest. In connection with the issuance of any new
Certificate of Beneficial Interest under this Section 2.03(g), the Owner Trustee
may require the payment by the holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Owner Trustee) connected
therewith. Any duplicate Certificate of Beneficial Interest issued pursuant to
this Section 2.03(g) shall constitute complete and indefeasible evidence of
ownership of a beneficial interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate of Beneficial Interest
shall be found at any time.
2.04. Payments and Distributions.
(a) Any amount held by the Trust with respect to the Trust Property
shall be applied in the following order:
(i) to the extent not otherwise paid, to pay all amounts (if any) then
due and payable to the Owner Trustee or The Chase Manhattan Bank (USA),
pursuant to Sections 7.01 and 7.03 of this Agreement;
(ii) to make any payments required pursuant to and in accordance with
the Purchase Agreement; and
(iii) to distribute any remaining amounts and other property to the
Certificateholder at the
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direction of and in accordance with the written instructions of the
Co-Trustees.
(b) All payments and distributions required to be made to the
Certificateholder pursuant to this Section 2.04 shall be made to the
Certificateholder on such dates and in such amounts as specified in written
instructions from the Administrator by wire transfer of immediately available
funds or by such other means as are acceptable to the Owner Trustee, in either
case as specified in written instructions from the Certificateholder delivered
to the Owner Trustee in accordance with Section 10.04 at least five Business
Days prior to such payment or distribution.
(c) For purposes of making the distributions set forth in this Section
2.04(a), the Owner Trustee hereby appoints Chase Manhattan Bank, N.A., having an
address at 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, as its paying
agent.
2.05. [intentionally left blank]
2.06. Further Assurances. The Owner Trustee shall execute and deliver all
such other instruments, documents or certificates and take all such other
actions in accordance with the direction of the owners of the Certificates of
Beneficial Interest as such owners may deem necessary or advisable to give
effect to the transactions contemplated hereby, the taking of any such action by
the Owner Trustee on the Closing Date in the presence of the owners of the
Certificates of Beneficial Interest or its counsel shall evidence, conclusively,
such direction of the owners of the Certificates of Beneficial Interest.
2.07. Activities of Trust.
(a) The nature of the business or purposes to be conducted or promoted
by the Trust is to engage in the following activities:
(i) to enter into the Purchase Agreement and to acquire from time to
time all right, title and interest in and to receivables arising out of or
relating to the financing of automobile purchases (the "Receivables"),
including monies due thereunder, security interests in the vehicles and
other goods financed thereby, proceeds from claims on insurance policies
related thereto, and related rights;
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(ii) to acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal in or with Receivables;
(iii) to receive cash contributions from any Certificateholder;
(iv) to sell, transfer, assign, pledge and otherwise deal in or with
any or all of its ownership interest in Receivables;
(v) to own interests in other entities created for the purpose of
engaging in the foregoing activities; and
(vi) to enter into any other agreements and to engage in any other
acts and activities and to execute any powers permitted to business trusts
under the Business Trust Statute that are incidental, advantageous or
necessary to the foregoing.
(b) Notwithstanding any other provisions of this Agreement and any
provision of law that otherwise so empowers the Trust, the Trust shall not,
engage in any business or activity other than those set forth in subsection (a).
2.08. Duties of Owner Trustee.
(a) Subject to Section 2.09 hereof, the Owner Trustee is hereby
authorized to take all actions required or permitted to be taken by the Trust
under this Agreement and is hereby directed to comply with the terms of this
Agreement. In addition, the Owner Trustee is authorized and directed to execute
and deliver on behalf of the Trust on the Closing Date the Pooling and
Administration Agreement, the Purchase Agreement, the NAFCO Note, the
Certificates, each Certificate Purchase Agreement and each certificate or other
document attached as an exhibit to or contemplated by the foregoing documents,
in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Owner Trustee's execution thereof. The Owner Trustee shall
be deemed to have discharged its duties hereunder to the extent that the
Servicer, the Administrator or the Co-Trustees have agreed to perform such
duties.
(b) The Owner Trustee shall not have any duty or obligation to manage,
control, use, sell, dispose of
9
or otherwise deal with the Trust Property, to prepare or file any document or
report, or otherwise to take or refrain from taking any action under or in
connection with this Agreement, any other Related Agreement or any other
Transaction Document (as such term is defined in the Pooling and Administration
Agreement), except as expressly required by the terms of this Agreement, any of
the Transaction Documents or as expressly directed in written instructions
pursuant to Section 2.09; and no implied duties or obligations shall be read
into this Agreement or any other Related Agreement against the Owner Trustee.
The Chase Manhattan Bank (USA) nevertheless agrees that it will, at its own cost
and expense, promptly take all actions as may be necessary to discharge any
Liens on any part of the Trust Property which result from actions by or claims
against The Chase Manhattan Bank (USA) that are not related to the ownership of
the Trust Property or any other part of the Trust or the administration of the
Trust Property or the transactions contemplated by the Related Agreements.
(c) The Owner Trustee shall not have any duty to enforce any
obligation or promise of any Certificateholder to contribute cash, property or
perform services to and for the Trust. The Administrator shall have the duty to
enforce any such obligation or promise.
2.09. Instructions of the Co-Trustees.
(a) The Owner Trustee shall only take such action or shall refrain
from taking such action under this Agreement as it shall be directed pursuant to
a specific provision of this Agreement or as it shall be directed in writing by
(i) the Co-Trustees in accordance with the notice provisions of Section 10.04 or
(ii) by either owner of the Certificates of Beneficial Interest, provided
however, that such direction shall not be contrary to any specific provision
contained in this Agreement or result in a Material Adverse Effect. The Owner
Trustee shall not take the actions set forth in Section 10.03 relating to
amendments or waivers of this Agreement, Section 10.05 relating to dissolution
of the Trust, Section 10.07 relating to filing of a petition in bankruptcy of
the Trust or permit the Trust to merge with or into another entity unless it
shall have obtained the consent of or shall be directed by the Co-Trustees in
accordance with the provisions of Section 8.03.
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(b) If in performing its duties under this Agreement the Owner Trustee
is required to decide between alternative courses of action, the Owner Trustee
shall consult with the owner of the Certificates of Beneficial Interest. If the
Owner Trustee is unsure of the application of any provision of this Agreement or
any other Related Agreement, then the Owner Trustee may, promptly deliver a
notice to the Co-Trustees in accordance with the notice provisions of Section
10.04 hereof requesting written instructions as to the course of action desired
by them. The Co-Trustees shall make any determination required pursuant to this
Section 2.09, as reflected in instructions to the Owner Trustee delivered by
such Co-Trustees in accordance with Section 8.03 hereof. If the Owner Trustee
does not receive such instructions within 10 Business Days after it has
delivered such notice, or such shorter period of time set forth in such notice,
it may, but shall be under no duty to, take or refrain from taking such action
not inconsistent with this Agreement as it shall deem advisable and in the best
interests of the owners of the Certificates of Beneficial Interest.
2.10. Furnishing of Documents. The Owner Trustee shall furnish to the
Co-Trustees and to each owner of a Certificate of Beneficial Interest promptly
upon receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee hereunder or under the Related Agreements (other than
documents originated by or otherwise furnished to an owner of a Certificate of
Beneficial Interest).
2.11. Situs of Trust. The Trust will be located and administered in the
State of Delaware. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be held in the name of the Trust and located in the State of
Delaware unless otherwise required by the terms of the Purchase Agreement, the
Pooling and Administration Agreement or the Servicing Agreement.
2.12. Title to Trust Property. Until this Agreement terminates pursuant to
Article X hereof, title to all of the Trust Property shall be vested in the
Trust; provided, however, that if the laws of any jurisdiction require that
title to any part of the Trust Property be vested in the trustee of the Trust,
then title to that part of the Trust Property shall be deemed to be vested in
the Owner Trustee or any co-trustee or separate trustee, as the
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case may be, appointed pursuant to Article VII of this Agreement.
ARTICLE III [Reserved]
ARTICLE IV
Representations and Warranties of Depositor
The Depositor hereby represents and warrants that:
4.01. Good Standing. The Depositor is a partnership formed under the
limited partnership laws of the State of Delaware, validly existing and in good
standing under the laws of the State of Delaware and has all partnership powers
and all material governmental licenses, authorization, consents and approvals
required under the laws of the State of Delaware to carry on its business as now
conducted.
4.02. Partnership Power. The execution, delivery and performance by the
Depositor of this Agreement, the Purchase Agreement and the Pooling and
Administration Agreement are within the partnership power of the Depositor, have
been duly authorized by all necessary partnership action on the part of the
Depositor (no action by its shareholders being required) and do not and will not
(i) violate or contravene any judgment, injunction, order or decree binding on
the Depositor, (ii) violate, contravene or constitute a default under any
provision of the Limited Partnership Agreement of the Depositor or of any
material agreement, contract, mortgage or other instrument binding on the
Depositor or (iii) result in the creation or imposition of any Lien attributable
to the Depositor, except as are expressly contemplated hereby.
4.03. Consents and Approvals. No consent, approval, authorization or order
of, or filing with, any court or regulatory, supervisory or governmental agency
or body is required under Delaware law in connection with the execution,
delivery and performance by the Depositor of this Agreement and the Purchase
Agreement or the consummation by the Depositor of the transactions contemplated
hereby or thereby (except as may be required by the Delaware securities laws).
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4.04. Title to Trust Property. Upon the sale, assignment or other transfer
of any of the Trust Property by the Depositor to the Trust under this Agreement
or the Purchase Agreement, the Depositor will have conveyed to the Trust all of
its right, title and interest in the Receivables, free and clear of any Lien
arising by reason of ownership of the Receivables by the Depositor or any action
taken or omitted to be taken by the Depositor.
4.05. Binding Effect. This Agreement and any Related Agreements to which
the Depositor is a party have been duly and validly authorized, executed and
delivered by, and constitute valid and binding agreements of, the Depositor
(assuming that they constitute valid and binding agreements of the other parties
thereto, enforceable against such parties in accordance with their respective
terms) enforceable against the Depositor in accordance with their respective
terms, except that the enforceability thereof may be subject to (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or law).
4.06. Investment Company. The Trust is not an investment company which is
required to be registered under the Investment Company Act of 1940.
ARTICLE V
Representations and Warranties
of The Chase Manhattan Bank (USA)
The Chase Manhattan Bank (USA) hereby represents and warrants that:
5.01. Good Standing. The Chase Manhattan Bank (USA) is a banking
corporation organized under the laws of the State of Delaware, validly existing
and in good standing under the laws of the State of Delaware and has all
corporate powers and all material governmental licenses, authorization, consents
and approvals required under the laws of the State of Delaware to carry on its
trust business as now conducted.
5.02. Corporate Power. The execution, delivery and performance by The Chase
Manhattan Bank (USA), in its
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individual capacity and in its capacity as Owner Trustee of this Agreement, the
Purchase Agreement and related documents and the issuance of the Certificate of
Beneficial Interest by the Owner Trustee on behalf of the Trust pursuant to this
Agreement are within the corporate power of The Chase Manhattan Bank (USA), have
been duly authorized by all necessary corporate action on the part of The Chase
Manhattan Bank (USA) (no action by its shareholders being required) and do not
and will not (i) violate or contravene any judgment, injunction, order or decree
binding on The Chase Manhattan Bank (USA), (ii) violate, contravene or
constitute a default under any provision of the certificate of incorporation or
by-laws of The Chase Manhattan Bank (USA) or of any material agreement,
contract, mortgage or other instrument binding on The Chase Manhattan Bank (USA)
or (iii) result in the creation or imposition of any Lien attributable to The
Chase Manhattan Bank (USA) on the Trust Property, except as are expressly
contemplated hereby.
5.03. Consents and Approvals. Other than such filing of a Certificate of
Trust as has been made, no other consent, approval, authorization or order of,
or filing with, any court or regulatory, supervisory or governmental agency or
body is required under Delaware law in connection with the execution, delivery
and performance by The Chase Manhattan Bank (USA), in its individual capacity
and in its capacity as Owner Trustee, of this Agreement or the issuance of the
Certificates of Beneficial Interest by the Owner Trustee on behalf of the Trust
pursuant to this Agreement or the consummation by the Owner Trustee of the
transactions contemplated hereby or thereby (except as may be required by the
Delaware securities laws).
5.04. Binding Effect. This Agreement has been duly and validly authorized,
executed and delivered by, and constitutes a valid and binding agreement of, The
Chase Manhattan Bank (USA), (assuming that it constitutes a valid and binding
agreement of the other parties thereto, enforceable against such parties in
accordance with its terms) enforceable against The Chase Manhattan Bank (USA) in
accordance with its terms, except that the enforceability thereof may be subject
to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (B)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or law).
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ARTICLE VI
Certain Covenants of Depositor, Owners of
Certificates of Beneficial Interest and the Trust
6.01. Title to Trust Property. The Certificateholder from time to time is
deemed to acknowledge by its acquisition thereof that the Trust owns the Trust
Property and the Certificateholder is deemed to agree to refrain from taking any
action contrary to such ownership by the Trust.
6.02. Notification of Transfer. Immediately upon the sale or other transfer
of any Trust Property to the Trust pursuant to this Agreement or the Purchase
Agreement, the Depositor will make any appropriate notations on its records to
indicate that such Trust Property has been sold or transferred to the Trust
pursuant to this Agreement or the Purchase Agreement.
6.03. Investment Company. Neither the Depositor nor any other
Certificateholder shall take any action which would cause the Trust to become an
investment company which would be required to register under the Investment
Company Act of 1940.
6.04. Certain Business Conduct.
(a) The Trust shall not, except as provided in this Agreement or any
other Related Agreement (i) make or permit to remain outstanding any loan or
advance by the Trust to any Person (except for certain adjustments to reflect
cash and accrual accounting); (ii) own or acquire any stock or securities of any
Person or guarantee any obligation of any Person; or (iii) commingle its assets
with the assets of the Depositor or the Certificateholder or any other Person.
(b) The Trust shall at all times maintain or cause to be maintained
the following procedures to avoid or minimize any risk of substantive
consolidation of the assets and liabilities of the Trust and the
Certificateholder or the Depositor or any other Person: (i) maintenance of books
of account and records, bank accounts and assets separate from those of any
Person; (ii) filing or causing to be filed tax returns separate from those of
the Certificateholder or the Depositor or any of their Affiliates (except to the
extent required or permitted by applicable law, rule or
15
regulation to be included in a consolidated or unitary group, as appropriate);
(iii) except as required or specifically provided in this Agreement, conducting
business with Affiliates of the Owner Trustee, the Certificateholder or the
Depositor (or any Affiliate thereof) on an arm's-length basis; (iv) observance
of trust (or similar organizational) formalities; (v) holding the Trust out to
the public as a legal entity separate and distinct from any of the Owner
Trustee's Affiliates and from the Certificateholder or the Depositor or any
Affiliate thereof; and (vi) paying from its assets all obligations and
indebtedness of any kind incurred by the Trust. The Trust shall act solely in
its own name through the Owner Trustee, any Co-Trustee or other agents in the
conduct of its businesses in accordance with this Agreement except to the extent
required by the laws of any applicable jurisdiction.
(c) The Trust shall conduct its business through the office of the
Owner Trustee or the Co-Trustees and will use stationery and other business
forms under its own name and not that of the Certificateholder, the Depositor or
any Affiliate thereof and will use its best efforts to avoid the appearance of
conducting business on behalf of the Certificateholder, the Depositor or any
Affiliate thereof or that the assets of the Trust are available to pay the
creditors of the Certificateholder, the Depositor or any Affiliate thereof.
(d) Nothing in this Section 6.04 shall restrict the authority of the
Trust to authorize the Servicer to act in the name or on behalf of the Trust
when authorized by any Related Document.
(e) The Trust shall not create, incur, assume or suffer to exist any
indebtedness, whether current or funded, or any other liability other than any
fees and expenses under this Agreement, the Purchase Agreement, the Pooling and
Administration Agreement and any other Related Agreements, except (i) the NAFCO
Note, (ii) additional debt incurred in accordance with the Pooling and
Administration Agreement or (iii) additional debt securities, provided that the
issuance of such debt securities is permitted by the Purchase Agreement or the
Pooling and Servicing Agreement.
16
ARTICLE VII
Concerning the Owner Trustee and the Trust
7.01. General Matters Relating to the Owner Trustee.
(a) Subject to the terms of Section 7.03 and Article IX of this
Agreement, all moneys deposited with or received by the Owner Trustee hereunder
shall be held by it in trust as part of the Trust Property until distributed in
accordance with Section 2.04 hereof.
(b) The Owner Trustee shall be under no liability for any action taken
by the Owner Trustee in good faith in reliance upon any paper, order,
instruction, list, demand, request, consent, affidavit, notice, opinion,
direction, endorsement, assignment, resolution, draft or other document, prima
facie property executed, or for the disposition of moneys or Trust Property
pursuant to this Agreement; provided, however, that this provision shall not
protect the Owner Trustee against any liability to which it would otherwise be
subject by reason of bad faith, willful misconduct, or gross negligence in the
performance of its duties.
(c) The Owner Trustee may construe any of the provisions of this
Agreement, insofar as the same may appear ambiguous or inconsistent with any
other provisions hereof, and any such construction by the Owner Trustee in good
faith shall be binding upon the parties hereto and the Certificateholder;
provided that this provision shall not protect the Owner Trustee against any
liability to which it would otherwise be subject by reason of bad faith, willful
misconduct or gross negligence.
(d) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by the Owner Trustee in accordance with
instructions of the Depositor, the Co-Trustees or the Certificateholder pursuant
to Sections 2.09 and 10.04 hereof. The Owner Trustee shall have no duty to
monitor the performance of the Servicer, the Administrator or the Co-Trustees,
nor shall it have any liability with respect to any acts or omissions of the
Servicer, the Administrator or the Co-Trustees.
(e) The Owner Trustee shall not be responsible for the validity or
sufficiency of this
17
Agreement or for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any Trust Property or
for or in respect of the validity or sufficiency of the Certificates of
Beneficial Interest (except for the due execution thereof by the Owner Trustee),
and the Owner Trustee shall in no event assume or incur any liability, duty or
obligation to the Depositor, the Co-Trustees or to the Certificateholder, other
than as expressly provided for herein.
(f) The Owner Trustee shall promptly notify the Co-Trustees and the
Certificateholder of any legal action taken by any Person with respect to the
Trust of which it has Actual Knowledge. The Owner Trustee shall not be under any
obligation to appear in, prosecute or defend any action, which in its opinion
may require it to incur any out-of-pocket expense or any liability unless it
shall be furnished with such reasonable security and indemnity against such
expense or liability as it may require, and any out-of-pocket cost of the Owner
Trustee as a result of such actions shall be deductible from and a charge
against the Trust Property. The Owner Trustee may, but shall be under no duty
to, undertake such action as it may deem necessary at any and all times, without
any further action by the Certificateholder, to protect the Trust Property and
the rights and interests of the Certificateholder pursuant to the terms of this
Agreement.
(g) The Owner Trustee, in the exercise or administration of the trusts
and powers hereunder, may, at the expense of the Trust, employ agents,
attorneys, accountants and auditors and enter into agreements with any of them
and the Owner Trustee shall not be liable for the supervision of or the default
or misconduct of any such agents, attorneys, accountants or auditors if such
agents, attorneys, or accountants or auditors shall have been selected by it
with reasonable care.
(h) The Owner Trustee shall not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will (i) require the consent or approval or authorization or order of or the
giving of notice to, or the registration with or taking of any action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in
18
existence on the date hereof other than the State of Delaware becoming payable
by the Owner Trustee; or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
the Owner Trustee.
7.02. Books and Records; Mailings to Owners of Certificates of Beneficial
Interest. The Owner Trustee shall keep at its Corporate Trust Office a record of
the name and address of the Certificateholder, and such records shall be open to
inspection by any such owner at all reasonable times during usual business hours
of the Owner Trustee.
7.03. Compensation and Indemnification of the Owner Trustee.
(a) The Owner Trustee shall be entitled from the Trust (as may be
specified in a fee arrangement entered into between the Owner Trustee and the
Depositor) or from the Depositor, to the extent that the Trust Property is not
sufficient to promptly pay such amounts, to reasonable compensation for the
services of the Owner Trustee (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and
reimbursement for all reasonable out-of-pocket expenses, disbursements and
advances incurred by the Owner Trustee in accordance with any of the provisions
of this Agreement (including the reasonable compensation, reasonable expenses
and reasonable disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may be incurred
or arise out of the gross negligence or willful misconduct of the Owner Trustee.
The Owner Trustee shall notify the Co-Trustees and the Certificateholder upon
receipt by the Owner Trustee of compensation from the Trust Property pursuant to
the foregoing sentence of the amount of such compensation. Notwithstanding
Section 7.03 of this Agreement and without limiting Section 10.07 hereof, the
Owner Trustee hereby agrees not to cause the filing of a petition in bankruptcy
against the Trust for the non-payment to the Owner Trustee of any amounts
provided by this Agreement until one year and one day after the termination of
this Trust in accordance with Section 10.05 of this Agreement.
(b) The Trust or the Depositor, to the extent that the Trust Property
is not sufficient to promptly
19
pay such amounts, agrees to indemnify the Owner Trustee or any of its officers,
directors, employees or agents for, and to hold each of them harmless against,
any and all losses and liabilities, obligations, damages, penalties, taxes
(excluding any taxes payable by The Chase Manhattan Bank (USA) on or measured by
any compensation for services rendered by the Owner Trustee under this
Agreement), claims, actions, suits or out-of-pocket expenses or costs of any
kind and nature whatsoever incurred or arising out of or in connection with the
acceptance or administration of this trust or the transactions contemplated by
the Transaction Documents, including the reasonable costs and out-of-pocket
expenses of defending itself against any claim of liability in the premises,
except to the extent that the same may be incurred or arise out of the gross
negligence or willful misconduct of the Owner Trustee or for the Owner Trustee's
failure to use ordinary care to disburse funds pursuant to Section 2.04 hereof.
The obligations of the Depositor to indemnify the Owner Trustee, and
its right to be compensated and be reimbursed for the reasonable out-of-pocket
expenses, disbursements and advances of the Owner Trustee from the Trust
Property pursuant to Section 7.03(a) and (b) hereof, shall survive the
termination of this Agreement pursuant to Section 9.05 hereof or the resignation
or removal of the Owner Trustee hereunder. Such obligations shall be secured by
a Lien upon the Trust Property senior to that of the Certificates of Beneficial
Interest in the Trust Property.
(c) The Owner Trustee shall not be required to take or refrain from
taking any action under this Agreement (other than giving of notices) unless the
Owner Trustee shall have been indemnified by the Certificateholder, in manner
and form reasonably satisfactory to the Owner Trustee, against any liability,
fee, cost or expense (including attorneys' fees) which may be incurred or
charged in connection therewith, except to the extent the same may be incurred
or arise out of the gross negligence or willful misconduct of the Owner Trustee
or the Owner Trustee's failure to use ordinary care to disburse funds pursuant
to this Agreement. The Owner Trustee shall not be required to take any action if
the Owner Trustee shall reasonably determine, or shall have been advised by
counsel, that such action is likely to result in personal liability, or is
contrary to the terms hereof or of any document contemplated hereby to which the
Owner Trustee is a party or otherwise contrary to law.
20
(d) Any amounts paid to the Owner Trustee pursuant to Section 7.01(e)
hereof and subsections (a) and (b) of this Section 7.03 shall not be deemed to
be part of the Trust Property immediately after such payment.
7.04. Resignation, Discharge or Removal of Owner Trustee; Successor.
(a) The Owner Trustee may resign and be discharged of the trust
created by this Agreement by executing an instrument in writing, filing the same
with the Co-Trustees and mailing a copy of a notice of resignation to the
Certificateholder then of record, not less than sixty (60) days before the date
specified in such instrument when, subject to Section 7.04(c) hereof, such
resignation is to take effect. Upon receiving such notice of resignation, the
Co-Trustees shall use their best efforts promptly to appoint a successor Owner
Trustee in the manner and meeting the qualifications hereinafter provided by
written instrument or instruments delivered pursuant to Section 10.04 to such
resigning Owner Trustee and the successor Owner Trustee. Except as provided in
subsection (b) of this Section 7.04, the appointment of any successor Owner
Trustee shall be approved by the Co-Trustees. The Co-Trustees may remove the
Owner Trustee for any reason and appoint a successor Owner Trustee by written
instrument or instruments delivered to the Owner Trustee so removed and the
successor Owner Trustee.
(b) In case at any time the Owner Trustee shall resign and no
successor Owner Trustee shall have been appointed within thirty (30) days after
notice of such resignation has been filed and mailed as required by Section
7.04(a) hereof, the resigning Owner Trustee may forthwith apply to a court of
competent jurisdiction for the appointment of a successor Owner Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Owner Trustee.
(c) Any successor Owner Trustee appointed hereunder shall promptly
execute and deliver to the Co-Trustees and the retiring Owner Trustee an
instrument accepting such appointment hereunder, and the successor Owner Trustee
without any further act, deed or conveyance shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder with like
effect as if originally named the Owner Trustee herein and shall be bound by all
the terms and conditions of this Agreement.
21
Upon the request of the successor Owner Trustee, the retiring Owner Trustee
shall, upon payment of all amounts due the retiring Owner Trustee, execute and
deliver an instrument transferring to the successor Owner Trustee all the rights
and powers of the retiring Owner Trustee; and the retiring Owner Trustee shall
transfer, deliver and pay over to the successor Owner Trustee all of the Trust
Property at the time held by it, if any, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary to
effect such transfer and such of the records or copies thereof maintained by the
retiring Owner Trustee in the administration hereof as may be requested by the
successor Owner Trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. Any resignation or removal of an Owner
Trustee and appointment of a successor Owner Trustee pursuant to this Section
7.04 shall become effective upon such acceptance of appointment by the successor
Owner Trustee. Notice of such appointment of a successor Owner Trustee shall be
furnished to the Applicable Rating Agencies.
(d) Any corporation into which the Owner Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Owner Trustee shall be a party, shall be the
successor Owner Trustee under this Agreement without the execution, delivery or
filing of any paper, instrument or further act to be done on the part of the
parties hereto, anything herein, or in any agreement relating to such merger or
consolidation, by which the predecessor corporation may seek to retain certain
powers, rights and privileges theretofore obtaining for any period of time
following such merger or consolidation, to the contrary notwithstanding;
provided that such corporation resulting from any such merger or consolidation
shall meet the qualifications set forth in Section 7.05 hereof.
(e) Upon the happening of any of the events described in this Section
7.04 that requires an amendment to the Certificate of Trust under the Business
Trust Statute, the successor Owner Trustee shall cause an amendment to the
Certificate of Trust to be filed with the Secretary of State, in accordance with
the provisions of Section 3810 of the Business Trust Statute, indicating the
change with respect to the Owner Trustee's identity.
22
7.05. Qualification of Owner Trustee. The Owner Trustee shall at all times
be a banking corporation organized and doing business under the laws of the
United States, or any state thereof, with a principal place of business in the
State of Delaware and having all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on a trust
business and having at all times an aggregate capital, surplus and undivided
profits of not less than $50,000,000.
7.06. Appointment of Additional Trustees. At any time or times, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property may at the time be located, the Owner Trustee, by an
instrument in writing, may appoint one or more individuals or corporations to
act as separate trustees of all or any part of the Trust Property to the full
extent that local law makes it necessary for such separate trustees to act
alone.
7.07. Not Acting in Individual Capacity. Except as otherwise expressly
provided herein, in acting hereunder, The Chase Manhattan Bank (USA) acts solely
as Owner Trustee and not in its individual capacity; and, except as so provided,
all persons, having any claim against The Chase Manhattan Bank (USA) by reason
of the transactions contemplated hereby shall look only to the Trust Property
for payment or satisfaction thereof; provided, however, that the provisions of
Article VII shall not protect The Chase Manhattan Bank (USA) (in either
capacity) against any liability to which it would otherwise be subject by reason
of (i) willful misconduct or gross negligence in the performance of its duties,
(ii) the inaccuracy of any representation or warranty contained in Article V
hereof expressly made by The Chase Manhattan Bank (USA), (iii) liabilities
arising from the failure by The Chase Manhattan Bank (USA) to perform
obligations expressly undertaken by it in the last sentence of Section 2.08(b)
or (iv) taxes, fees or other charges on, based on or measured by any fees,
commissions or compensation received by the Owner Trustee in connection with any
of the transactions contemplated by this Agreement or the Related Agreements.
7.08. Liability of the Certificateholder. Notwithstanding Section 3803 of
the Business Trust Statute, the Certificateholders agree to be liable for all
fees, expenses, taxes, indemnity payments and other liabilities of the Trust
(other than liabilities which by their terms are
23
nonrecourse), in accordance with the terms of this Agreement, including (except
as otherwise provided herein) those incurred by the Owner Trustee in the
administration of the Trust hereunder, to the extent such fees, expenses, taxes,
indemnity payments and other liabilities of the Trust or the Owner Trustee, as
the case may be, including the reasonable fees and expenses of legal counsel
with respect to the Trust, are not paid out of the Trust Property to the same
extent, but only to the same extent as if the Certificateholder were a general
partner and the Trust a partnership under Delaware's Revised Uniform Limited
Partnership Act; provided, however, that the Certificateholders shall be liable
only for fees, expenses, taxes, indemnity payments and other liabilities of the
Trust arising after such Certificateholder becomes a holder of Certificates of
Beneficial Interest.
The Certificateholder shall, within five Business Days of receipt of a
statement from the Owner Trustee to the effect that the Trust Property is
insufficient for the payment of such fees, expenses, taxes, indemnity payments
and other liabilities of the Trust for which such holder is liable, pay such
fees, expenses, taxes, indemnity payments and other liabilities.
7.09. Acting in its Own Name. The Owner Trustee shall conduct its business
as Owner Trustee of the Trust and will use stationery and other business forms
under such name and not that of the Certificateholder, the Depositor or any
Affiliate thereof and will use its best efforts to avoid the appearance of
conducting business on behalf of the Certificateholder, the Depositor or any
Affiliate thereof or that the assets of the Trust are available to pay the
creditors of the Certificateholder, the Depositor or any Affiliate thereof.
7.10. Decisions by Owner Trustee. Subject to the provisions of Section
2.09(a) and (b), the Owner Trustee shall make all decisions relating to the
actions of the Trust independent of the Certificateholders.
ARTICLE VIII
Co-Trustees
8.01. Appointment of Co-Trustees. Pursuant to Section 3806 of the Business
Trust Statute, the following
24
persons are hereby appointed to manage the business and affairs of the Trust as
trustees (the "Co-Trustees") for the benefit of the owners of the Certificates
of Beneficial Interest as herein set forth:
Name Mailing Address
---- ---------------
Xxxx Xxxxxxx National Financial Corporation
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Xxxxx Xxxx National Financial Corporation
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
The Co-Trustees shall have all such rights, duties and obligations with
respect to the management of the business and affairs of the Trust and the Trust
Property as are permitted under applicable law and not otherwise expressly
vested in the Owner Trustee in this Agreement, including, without limitation,
the right to direct the Owner Trustee as provided in Section 2.09 hereof,
subject to the limitations on the activities of the Trust imposed by Section
2.07 hereof.
8.02. Qualification; Number; Term.
(a) Each Co-Trustee shall be at least 18 years of age. A Co-Trustee
need not be an owner of a Certificate of Beneficial Interest, a citizen of the
United States or a resident of the State of Delaware. The number of Co-Trustees
shall at all times be not less than three, or such larger number as may be fixed
from time to time by action of the Certificateholder or the Co-Trustees.
Notwithstanding anything to the contrary contained herein, at all times at least
one Co-Trustee shall be an Independent Co-Trustee. An "Independent Co-Trustee"
shall be an individual who is not at such time, and shall not have been at any
time during the preceding three years (i) a director, officer, employee or
affiliate of the Depositor, or any of its subsidiaries or Affiliates, or (ii)
the direct, indirect or beneficial owner at the time of such individual's
appointment as an Independent Co-Trustee or at any time thereafter while serving
as an Independent Co-Trustee, of
25
the Depositor or (iii) a relative of any person described in (i) or (ii) above.
(b) Co-Trustees may be appointed or removed at the direction of the
Certificateholder evidenced by written notice to the Co-Trustees and the Owner
Trustee specifying the effective date of any such appointment or removal and the
term of service of such Co-Trustee, if finite. Co-Trustees shall serve in such
capacity until the end of the term specified in such notice or until their
earlier resignation, death or removal.
8.03. Places of Meetings, Quorum and Manner of Voting.
(a) Meetings of the Co-Trustees may be held at any place within or
without the State of Delaware, as may from time to time be fixed by the
Co-Trustees, and may be convened by telephonic or other means as the Co-Trustees
may deem appropriate.
(b) Except as otherwise provided by law, a majority of the Co-Trustees
shall constitute a quorum. Except as set forth herein, the vote of a majority of
the Co-Trustees present at a meeting at which a quorum is present shall be the
act of the Co-Trustees. Any action required or permitted to be taken at any
meeting of the Co-Trustees may be taken without a meeting if all the Co-Trustees
consent thereto in writing.
8.04. Indemnification; Remuneration.
(a) A Co-Trustee shall not be personally liable either to the Trust or
any Certificateholder for monetary damages for breach of fiduciary duty as a
Co-Trustee, except (i) for any breach of the Co-Trustee's duty of loyalty to the
Trust or the Certificateholder, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of the law or (iii)
for any transaction from which the Co-Trustee shall have derived an improper
personal benefit.
(b) The Depositor shall indemnify any person who was or is a party or
is threatened to be made a party to, or testifies in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative in nature, by reason of the fact that such person is or was a
Co-Trustee, or is or was
26
serving at the request of the Certificateholder as a Co-Trustee, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the full extent permitted by law.
(c) Co-Trustees may be paid their expenses, if any, of attendance at
each meeting of the Co-Trustees and may be paid a fixed sum for attendance at
each meeting of the Co-Trustees or a stated salary as Co-Trustee.
8.05. Not Acting in Individual Capacity. Except as otherwise expressly
provided herein, in acting hereunder, each Co-Trustee acts solely as Co-Trustee
and not in its individual capacity; and, except as so provided, all persons,
having any claim against any Co-Trustee by reason of the transactions
contemplated hereby shall look only to the Trust Property for payment or
satisfaction thereof; provided, however, that this provision shall not protect
any Co-Trustee (in either capacity) against any liability to which it would
otherwise be subject by reason of (i) willful misconduct or gross negligence in
the performance of its duties, (ii) taxes, fees or other charges on, based on or
measured by any fees, commissions or compensation received by any Co-Trustee in
connection with any of the transactions contemplated by this Agreement or the
Related Agreements.
8.06. Separate Class. The Co-Trustees shall constitute a class of trustees
separate from the Owner Trustee pursuant to Section 3806(b) of the Delaware
Business Trust Statute, and shall be entitled to vote and otherwise exercise the
rights and powers granted herein without the consent of or consultation with the
Owner Trustee.
ARTICLE IX
Accounts of the Trust
9.01. Accounts of the Trust. Subject to the provisions of Section 2.09(a)
and (b) hereof, at any time and from time to time the Co-Trustees may direct the
Owner Trustee to establish one or more accounts of the Trust, in the name of the
Owner Trustee as trustee of the Trust, for the operations of the Trust. Any
funds in any account of the Trust that the Co-Trustees believe are not needed
for
27
purposes of such account shall be applied in accordance with Section 2.04.
9.02. Investment of Amounts on Deposit in Accounts of the Trust. Subject to
the provisions of Section 2.09(a) and (b) hereof, the amounts on deposit in any
account of this Trust shall be invested as directed in writing by the
Co-Trustees. All investments of amounts held in any account shall be made in the
name of the Trust. In no event shall the Owner Trustee be liable for the
selection of investments or for any losses resulting from such investments. All
investment earnings on amounts in any account of this Trust shall be deposited
therein and shall be subject to the provisions of this Article IX.
ARTICLE X
Miscellaneous
10.01. Benefit of Agreement. All the representations, warranties, covenants
and agreements contained in this Agreement by or on behalf of the Depositor, the
Co-Trustees, the owners of the Certificates of Beneficial Interest or the Owner
Trustee shall bind, and inure to the benefit of, their respective successors and
assigns and the owners of the Certificates of Beneficial Interest from time to
time, whether so expressed or not.
10.02. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be held invalid for any reason
whatsoever, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates of Beneficial Interest or
the rights of the owners thereof or of the Holders of the Notes.
10.03. Amendments and Waivers. This Agreement may not be amended, and
compliance with any provision hereof may not be waived by the Owner Trustee, the
Co-Trustees or the Certificateholder, unless such amendment or waiver is
consented to by the Owner Trustee, the Co-Trustees and the Certificateholder.
28
10.04. Notices. Any notice, demand, consent, direction or instruction to be
given to the Owner Trustee under this Agreement shall be in writing and shall be
duly given if mailed or delivered to the Corporate Trust Office at: The Chase
Manhattan Bank (USA), Owner Trustee for NAFCO Funding Trust, 000 Xxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, with a copy to The Chase Manhattan Bank (USA), c/o The Chase
Manhattan Bank, N.A., 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration or such other address as shall be
specified by the Owner Trustee in a notice to the Certificateholder given in
accordance with this Section.
Any notice, demand, direction or instruction to be given to the Depositor
under this Agreement shall be in writing and shall be duly given if mailed or
delivered to the Depositor at One Park Place, Suite 320, 000 XX 00xx Xxxxxx,
Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxx X. Xxxxxx, or at such other address as
shall be specified by the Depositor to the other parties to the Agreement in
writing.
Any notice or other communication to be given to Certificateholder (other
than the Depositor) under this Agreement shall be in writing and shall be duly
given if mailed or delivered to each such Certificateholder outstanding at the
time such notice or other communication is given at the address for such
Certificateholder contained in the records maintained by the Owner Trustee
pursuant to Section 7.02 hereof. If mailed, any notice or other communication
shall be effective 72 hours after being deposited in the United States mail,
first class postage prepaid.
10.05. Termination of This Agreement; No Power to Revoke or Withdraw Trust
Property.
(a) Subject to the provisions of Section 2.09(a) hereof, the Trust may
be dissolved by the holders of all of the Certificates evidencing 100% of the
beneficial interest in the Trust as shall then be entitled to vote with the
consent of the Independent Co-Trustee. After payment of all amounts then due and
payable to The Chase Manhattan Bank (USA) pursuant to Section 7.03 hereof, all
right, title and interest in the Trust Property still held by the Trust at the
time of such dissolution shall be transferred, assigned
29
and paid over to the Certificateholder in accordance with Section 2.04.
(b) Except as expressly provided in Section 10.05(a) hereof, neither
the Depositor nor any other Certificateholder shall be entitled to revoke or
terminate the Trust established hereunder.
(c) Upon the dissolution and winding up of the Trust, the Owner
Trustee shall cause the Certificate of Trust of the Trust to be canceled by
filing a certificate of cancellation with the Secretary of State of Delaware in
accordance with the provisions of Section 3810 of the Business Trust Statute and
the Trust shall terminate at such time.
10.06. Nature of Interest in Trust Property. Neither the Depositor nor any
other Certificateholder shall have legal title to any part of the Trust Property
and shall only be entitled to receive distributions with respect to their
undivided beneficial interest in the Trust Property pursuant to Section 2.04
hereof as expressly provided herein. No transfer, by operation of law or
otherwise, of any right, title and interest of the Depositor or of any other
Certificateholder, held by the Depositor or such other holder, shall operate to
terminate this Agreement or the trusts hereunder or entitle any successor
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Property.
10.07. No Filing. Without the express written consent of the
Certificateholder, the Depositor, the Owner Trustee and the Independent
Co-Trustee, the Trust shall not institute proceedings to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consent to reorganization
or relief under any applicable federal or state law relating to bankruptcy or
insolvency, or consent to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Trust or a
substantial part of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debts generally as they
become due, or take action in furtherance of any such action.
10.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF
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THE STATE OF DELAWARE (WITHOUT REGARD TO THE PROVISIONS AND CONFLICTS OF LAW),
AND ALL LAWS OR RULES OF CONSTRUCTION OF SUCH STATE SHALL GOVERN THE RIGHTS OF
THE PARTIES TO THIS AGREEMENT AND THE INTERPRETATION OF THE PROVISIONS OF THIS
AGREEMENT.
10.09. Counterparts. This Agreement may be executed and delivered in any
number of counterparts, and such counterparts taken together shall constitute
one and the same instrument.
10.10. Limitations on Rights of Others. Nothing in this Agreement, whether
express or implied, shall be construed to give to any person other than the
Owner Trustee, the Co-Trustees and the Certificateholder any legal or equitable
right, remedy or claim in the Trust Property or under or, except as provided in
Section 7.08(a) hereof with respect to creditors of the Trust, in respect of
this Agreement or any covenants, conditions or provisions contained herein.
10.11. References to Sections. References to sections used herein shall
refer to sections of this Agreement unless otherwise specified herein.
10.12. Administrator. The Administrator is authorized to execute on behalf
of the Trust all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Transaction Documents. Upon written request, the Owner Trustee
shall execute and deliver to the Administrator a power of attorney appointing
the Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
NATIONAL AUTO FINANCE COMPANY L.P.
By: NATIONAL AUTO FINANCE CORPORATION,
as General Partner
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK (USA),
as Owner Trustee
By: _________________________
Name:
Title:
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CO-TRUSTEE
By: _________________________
Name: Xxxx Xxxxxxx
CO-TRUSTEE
By: _________________________
Name: Xxxxx Xxxx
CO-TRUSTEE
By: _________________________
Name: Xxxxxx Xxxxx
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Acknowledged and Agreed by:
NATIONAL AUTO FINANCE CORPORATION
By:______________________________
Name:
Title:
BANKERS TRUST (DELAWARE)
_________________________________
Name:
Title:
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State of ________________
County of _______________
Before me, a notary public, on this day personally appeared
______________________________, known to me to be the person whose name is
subscribed to the foregoing document and, being first duly sworn, declared that
the statements contained are true and correct.
Given under my hand and seal of office the ____ day of December, 1994.
SEAL
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