1
Exhibit 4.2
EXECUTION COPY
===============================================================================
AFG RECEIVABLES TRUST 1997-A
AMENDED AND RESTATED TRUST AGREEMENT
between
KEY CONSUMER ACCEPTANCE CORPORATION
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of June 20, 1997
===============================================================================
2
TABLE OF CONTENTS
-----------------
PAGE
-----
ARTICLE I DEFINITIONS...................................................................................1
SECTION 1.1. Capitalized Terms.................................................................1
SECTION 1.2. Other Interpretive Provisions.....................................................1
ARTICLE II ORGANIZATION.................................................................................2
SECTION 2.1. Name..............................................................................2
SECTION 2.2. Office............................................................................2
SECTION 2.3. Purposes and Powers...............................................................2
SECTION 2.4. Appointment of Owner Trustee......................................................3
SECTION 2.5. Initial Capital Contribution of Trust Estate......................................3
SECTION 2.6. Declaration of Trust..............................................................3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders...............................3
SECTION 2.8. Title to Issuer Property..........................................................4
SECTION 2.9. Situs of Issuer...................................................................4
SECTION 2.10. Representations and Warranties of Depositor......................................4
SECTION 2.11. Federal Income Tax Allocations...................................................5
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.......................................................6
SECTION 3.1. Initial Ownership.................................................................6
SECTION 3.2. The Certificates..................................................................6
SECTION 3.3. Authentication of Certificates....................................................6
SECTION 3.4. Registration of Transfer and Exchange of Certificates.............................7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.................................8
SECTION 3.6. Persons Deemed Certificateholders.................................................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.........................9
SECTION 3.8. Maintenance of Office or Agency...................................................9
SECTION 3.9. Appointment of Paying Agent.......................................................9
SECTION 3.10. [Reserved].......................................................................9
SECTION 3.11. [Reserved].......................................................................9
SECTION 3.12. Definitive Certificates.........................................................10
ARTICLE IV ACTIONS BY OWNER TRUSTEE....................................................................10
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters.........................................................................10
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters.........................................................................11
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy..........................11
3
SECTION 4.4. Restrictions on Certificateholders' Power........................................11
SECTION 4.5. Majority Control.................................................................11
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...................................................12
SECTION 5.1. Application of Funds.............................................................12
SECTION 5.2. Method of Payment................................................................12
SECTION 5.3. No Segregation of Monies; No Interest............................................13
SECTION 5.4. Accounting and Reports to the Noteholders, Certificateholders,
the Internal Revenue Service and Others.........................................13
SECTION 5.5. Signature on Returns; Tax Matters Partner........................................13
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.......................................................14
SECTION 6.1. General Authority................................................................14
SECTION 6.2. General Duties...................................................................14
SECTION 6.3. Action upon Instruction..........................................................14
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions....................................................................15
SECTION 6.5. No Action Except under Specified Documents or
Instructions....................................................................16
SECTION 6.6. Restrictions.....................................................................16
ARTICLE VII CONCERNING OWNER TRUSTEE...................................................................16
SECTION 7.1. Acceptance of Trusts and Duties..................................................16
SECTION 7.2. Furnishing of Documents..........................................................18
SECTION 7.3. Representations and Warranties...................................................18
SECTION 7.4. Reliance; Advice of Counsel......................................................18
SECTION 7.5. Not Acting in Individual Capacity................................................19
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables.........................19
SECTION 7.7. Owner Trustee May Own Certificates and Notes.....................................20
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.............................................................20
SECTION 8.1. Owner Trustee's Fees and Expenses................................................20
SECTION 8.2. Indemnification..................................................................20
SECTION 8.3. Payments to Owner Trustee........................................................21
ARTICLE IX TERMINATION OF TRUST AGREEMENT..............................................................21
SECTION 9.1. Termination of Trust Agreement...................................................21
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES......................................................................22
SECTION 10.1. Eligibility Requirements for Owner Trustee......................................22
SECTION 10.2. Resignation or Removal of Owner Trustee.........................................23
-ii-
4
SECTION 10.3. Successor Owner Trustee.........................................................24
SECTION 10.4. Merger or Consolidation of Owner Trustee........................................24
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee...................................25
ARTICLE XI MISCELLANEOUS...............................................................................26
SECTION 11.1. Supplements and Amendments......................................................26
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders..............................................................28
SECTION 11.3. Limitations on Rights of Others.................................................28
SECTION 11.4. Notices.........................................................................29
SECTION 11.5. Severability....................................................................29
SECTION 11.6. Separate Counterparts...........................................................29
SECTION 11.7. Successors and Assigns..........................................................29
SECTION 11.8. No Petition.....................................................................29
SECTION 11.9. No Recourse.....................................................................30
SECTION 11.10. Headings.......................................................................30
SECTION 11.11. GOVERNING LAW..................................................................30
SECTION 11.12. Certificate Transfer Restrictions..............................................30
SECTION 11.13. Servicer.......................................................................30
SECTION 11.14. Sale and Servicing Agreement...................................................30
-iii-
5
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
-iv-
6
AMENDED AND RESTATED TRUST AGREEMENT dated as of June 20, 1997 between
KEY CONSUMER ACCEPTANCE CORPORATION, a Delaware corporation, as Depositor, and
CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as Owner Trustee
amending and
restating that certain Trust Agreement (the "Original Trust Agreement") dated
June 11, 1997 between the parties hereto.
ARTICLE I DEFINITIONS.
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement among the
trust established by this Agreement, Key Consumer Acceptance Corporation, as
Seller, Key Bank USA, National Association, as Servicer, and Bankers Trust
Company, as Indenture Trustee dated as of June 20, 1997, as the same may be
amended and supplemented from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
TRUST AGREEMENT
7
ARTICLE II ORGANIZATION.
SECTION 2.1. Name. The trust created under the Original Trust Agreement
shall be known as "AFG RECEIVABLES TRUST 1997-A", in which name Owner Trustee
may conduct the business of such trust, make and execute contracts and other
instruments on behalf of such trust and xxx and be sued.
SECTION 2.2. Office. The office of Issuer shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address as Owner Trustee
may designate by written notice to the Certificateholders and Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Issuer is, and
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and
principal of the Notes and distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from the Depositor pursuant to the terms
thereof, to make deposits to and withdrawals from the Reserve Account
and to pay the organizational, start-up and transactional expenses of
Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with the
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
2 TRUST AGREEMENT
8
Issuer is hereby authorized to engage in the foregoing activities. Issuer shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. Depositor hereby confirms
the appointment of Owner Trustee as trustee of Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. Pursuant to
the Original Trust Agreement, Depositor has, assigned, transferred, conveyed and
set over to Owner Trustee, as of the date thereof, the sum of $1. Owner Trustee
hereby acknowledges receipt in trust from Depositor, as of the date thereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate.
SECTION 2.6. Declaration of Trust. Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of Issuer under the Basic Documents. It is the intention of the
parties hereto that Issuer constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, solely for
federal, state and local income and franchise tax purposes, the Issuer will be
disregarded as an entity separate from its owner and the Notes will be treated
as debt. If the Certificates are held by more than one Person, it is the
intention of the parties hereto that, solely for federal, state and local income
and franchise tax purposes, the Issuer shall be treated as a partnership, the
partners of such partnership being the Certificateholders, (including the
Depositor, as general partner) and the Notes will be treated as debt of the
partnership. The parties agree that until the Certificates are held by more than
one Person, the Issuer will not file or cause to be filed annual or other
necessary returns, reports and other forms unless otherwise required by
appropriate tax authorities. Effective as of the date hereof, Owner Trustee
shall have all rights, powers and duties set forth herein and, to the extent not
inconsistent herewith, in the Business Trust Statute with respect to
accomplishing the purposes of Issuer. Owner Trustee has filed the Certificate of
Trust with the Secretary of State of Delaware.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders. (a)
Depositor shall pay organizational expenses of Issuer as they may arise or
shall, upon the request of Owner Trustee, promptly reimburse Owner Trustee for
any such expenses paid by Owner Trustee.
3 TRUST AGREEMENT
9
(b) No Holder shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8. Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in Issuer as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9. Situs of Issuer. Issuer will be located and administered
in the State of Delaware. All bank accounts maintained by Owner Trustee on
behalf of Issuer shall be located in the State of Delaware or the State of New
York. Payments will be received by Issuer only in Delaware or New York, and
payments will be made by Issuer only from Delaware or New York. The only office
of Issuer will be at the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Owner Trustee that:
(a) Depositor is duly organized and validly existing as a
Delaware corporation with power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted.
(b) Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications, licenses and approvals, except where the failure to
have such qualifications, licenses and approvals would not have a
material adverse effect on the Depositor.
(c) Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with Issuer and Depositor has duly authorized
such sale and assignment and deposit to Issuer by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by Depositor by all necessary
corporate action.
(d) This Agreement constitutes a legal, valid, and binding
obligation of the Depositor, enforceable against the Depositor in
4 TRUST AGREEMENT
10
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws and to general equitable principles.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of Depositor, or any
material indenture, agreement or other instrument to which Depositor is
a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best
of Depositor's knowledge, any order, rule or regulation applicable to
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Depositor or its properties.
(f) There are no proceedings or investigations pending or, to
the Depositor's best knowledge, threatened before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting
the invalidity of this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Indenture or any
of the other Basic Documents, (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the
Depositor or its obligations under, or the validity or enforceability
of, this Agreement or (iv) which might adversely affect the federal
income tax attributes, or applicable state franchise tax or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Allocations. Once Certificates are
held by more than one person, the Certificateholders acknowledge that it is
their intent and that they understand that it is the intent of Depositor and
Servicer that, for the purposes of federal income, state and local income and
franchise taxes and any other income taxes, Issuer will be treated as a
partnership and the Certificateholders (including Depositor) will be treated as
partners in that partnership (except, in the case of any state tax, where the
Depositor or the Servicer in good faith determines that treatment of the Issuer
as other than a partnership is required by applicable state law). In such a
case, Depositor and the other Certificateholders by acceptance of a Certificate
agree to such treatment and
5 TRUST AGREEMENT
11
agree to take no action inconsistent with such treatment. In such a case, for
purposes of federal income, state and local income and franchise tax and any
other income taxes each month: gross ordinary income of Issuer for such month as
determined for federal income tax purposes shall be allocated among the
Certificateholders as of the first Record Date following the end of such month,
in such proportion as may be agreed upon by the Certificateholders at such time.
Net losses of Issuer, if any, for any month as determined for Federal income tax
purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated to Depositor to the extent
Depositor is reasonably expected as determined by Servicer to bear the economic
burden of such net losses, then net losses shall be allocated among the
Certificateholders as of the first Record Date following the end of such month
in proportion to their ownership of principal amount of Certificates on such
Record Date until the principal balance of the Certificates is reduced to zero.
Depositor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to Depositor, the Certificateholders, or as
otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by one Person or the Issuer
has not been recharacterized as a separate entity, the application of this
Section 2.11 shall be disregarded.
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.
SECTION 3.1. Initial Ownership. Upon the formation of Issuer by the
contribution by Depositor pursuant to the Original Trust Agreement and until the
issuance of the Certificates, Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.2. The Certificates. The Certificates shall be issued in
denominations of $1,000 and integral multiples thereof; provided that one
Certificate may be issued that includes any residual portion of the initial
Certificate Balance in a denomination other than an integral multiple of $1,000.
The Certificates shall be executed on behalf of Issuer by manual or facsimile
signature of an authorized officer of Owner Trustee. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of Issuer,
shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A transferee of a Certificate shall become a Certificateholder,
and shall be entitled to the rights and subject to the
6 TRUST AGREEMENT
12
obligations of a Certificateholder hereunder, upon due registration of such
Certificate in such transferee's name pursuant to Section 3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to Issuer pursuant to the Sale and Servicing
Agreement, Owner Trustee shall cause the Certificates in an aggregate principal
amount equal to the initial Certificate Balance to be executed on behalf of
Issuer, authenticated and delivered to or upon the written order of Depositor,
signed by its chairman of the board, its president, its chief financial officer,
its chief accounting officer, any vice president, its secretary, any assistant
secretary, its treasurer or any assistant treasurer, without further corporate
action by Depositor, in authorized denominations. No Certificate shall entitle
its Holder to any benefit under this Agreement, or be valid for any purpose,
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by Owner Trustee or
The Chase Manhattan Bank, as Owner Trustee's authentication agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates. The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, Owner Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided. The Chase Manhattan Bank shall be the initial Certificate
Registrar.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, Owner Trustee shall
execute, authenticate and deliver (or shall cause The Chase Manhattan Bank as
its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like class and aggregate face amount dated the date of
authentication by Owner Trustee or any authenticating agent. At the option of a
Holder, Certificates may be exchanged for other Certificates of the same class
in authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to Owner Trustee and Certificate Registrar duly executed by the
Certificateholder or his attorney duly authorized in writing, with such
signature
7 TRUST AGREEMENT
13
guaranteed by a member firm of the New York Stock Exchange, a commercial bank or
trust company or an "eligible guarantor institution" with membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by Certificate Registrar in addition to, or substitution for, STAMP,
all in accordance with the Exchange Act. Each Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by Owner Trustee or Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but Owner Trustee or Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The preceding provisions of this Section 3.4 notwithstanding, Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates (i) until the Seller has, in the reasonable
judgment of the Owner Trustee, complied with Section 5.3 of the Sale and
Servicing Agreement and (ii) for a period of fifteen (15) days preceding any
Distribution Date for any payment with respect to the Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to Certificate Registrar, or if
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to Certificate Registrar and Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Certificate shall have been acquired by a bona fide purchaser, Owner
Trustee on behalf of Issuer shall execute and Owner Trustee, or The Chase
Manhattan Bank, as Owner Trustee's authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like class, tenor and denomination. In
connection with the issuance of any new Certificate under this Section, Owner
Trustee or Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by virtue
of becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation of
a Certificate for registration of transfer, Owner Trustee, Certificate Registrar
or any
8 TRUST AGREEMENT
14
agent of Owner Trustee or Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.1 and for all other purposes whatsoever, and none of Owner
Trustee, Certificate Registrar or any agent of Owner Trustee or Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
Owner Trustee shall furnish or cause to be furnished to Servicer, Depositor or
Indenture Trustee, within 15 days after receipt by Owner Trustee of a request
therefor from Servicer, Depositor or Indenture Trustee in writing, a list, in
such form as Servicer, Depositor or Indenture Trustee may reasonably require, of
the names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Holders of Certificates, or one or more Holders of
Certificates evidencing not less than 25% of the Certificate Balance, apply in
writing to Owner Trustee, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then Owner
Trustee shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Holder, by receiving and holding a Certificate,
shall be deemed to have agreed not to hold Depositor, Certificate Registrar or
Owner Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. Owner Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon Owner Trustee in
respect of the Certificates and the Basic Documents may be served. Owner Trustee
initially designates The Chase Manhattan Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its principal corporate trust office for such purposes. Owner
Trustee shall give prompt written notice to Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Collection Account pursuant to
Section 5.1 and shall report the amounts of such distributions to Owner Trustee.
Any Paying Agent shall have the revocable power to withdraw funds from the
Collection Account for the purpose of making the distributions referred to
above.
9 TRUST AGREEMENT
15
Owner Trustee may revoke such power and remove Paying Agent if Owner
Trustee determines in its sole discretion that Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. Paying
Agent shall initially be the Indenture Trustee.
SECTION 3.10. [Reserved]
SECTION 3.11. [Reserved]
SECTION 3.12. Definitive Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Definitive Certificates and shall be registered in the
name of Key Consumer Acceptance Corporation, as the initial registered owner
thereof. Owner Trustee shall execute and authenticate, or cause to be
authenticated, the Definitive Certificates in accordance with the instructions
of the Depositor. Neither Certificate Registrar nor Owner Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Certificates, Owner Trustee and the Paying Agent shall recognize
the Holders of the Definitive Certificates as Certificateholders. The Definitive
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to Owner Trustee, as evidenced by
its execution thereof.
ARTICLE IV ACTIONS BY OWNER TRUSTEE.
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, Owner Trustee shall not take
action unless at least 30 days before the taking of such action, Owner Trustee
shall have notified the Certificateholders in writing of the proposed action and
the Certificateholders shall not have notified Owner Trustee in writing prior to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by Issuer
(except claims or lawsuits brought in connection with the collection of
the Receivables) and the compromise of any material action, claim or
lawsuit brought by or against Issuer (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
10 TRUST AGREEMENT
16
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement or the Administration Agreement, except to cure any
ambiguity or defect or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this Agreement, as
applicable.
Owner Trustee shall notify the Certificateholders in writing of any appointment
of a successor Paying Agent or Certificate Registrar within five Business Days
thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. Owner Trustee shall not have the power, except upon the direction of
the Certificateholders, to (a) remove Servicer under the Sale and Servicing
Agreement pursuant to Section 8.1 thereof, (b) except as expressly provided in
the Basic Documents, sell the Receivables after the termination of the
Indenture, (c) remove the Administrator under the Administration Agreement
pursuant to Section 9 thereof or (d) appoint a successor Administrator pursuant
to Section 9 of the Administration Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to Issuer until the Outstanding Amount of all the Notes has
been reduced to zero and without the unanimous prior approval of all
Certificateholders and the delivery to Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
11 TRUST AGREEMENT
17
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct Owner Trustee to take or refrain from taking
any action if such action or inaction would be contrary to any obligation of
Issuer or Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Section 2.3 nor shall Owner Trustee be obligated to follow
any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Holders of Certificates evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.
SECTION 5.1. Application of Funds. (a) On each Distribution Date, based
on the information contained in Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement,
Paying Agent shall distribute to Certificateholders, to the extent of the funds
available, amounts from the Collection Account pursuant to the Sale and
Servicing Agreement on such Distribution Date to the Certificateholders, on a
pro rata basis, an amount equal to the Certificateholders' Distributable Amount.
(b) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section. Paying Agent is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by Issuer (but such
authorization shall not prevent Paying Agent from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount
of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the
time it is withheld by Issuer and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-United
States Certificateholder), Paying Agent may in its sole discretion
withhold such amounts in accordance with this clause (b). In the event
that a Certificateholder wishes to apply for a refund of any such
withholding tax,
12 TRUST AGREEMENT
18
Paying Agent shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse
Paying Agent for any out-of-pocket expenses incurred.
SECTION 5.2. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if (a)
such Certificateholder shall have provided to Paying Agent appropriate written
instructions at least five Business Days prior to such Distribution Date and
such Holder's Certificates in the aggregate evidence an amount of not less than
$1,000,000 or (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, by check mailed to such Certificateholder at the address of
such Holder appearing in the Certificate Register. Notwithstanding the
foregoing, the final distribution in respect of any Certificate (whether on the
Final Scheduled Distribution Date or otherwise) will be payable by the Paying
Agent only upon receipt by it of notice from Owner Trustee of presentation and
surrender of such Certificate at the office or agency maintained for that
purpose by Owner Trustee pursuant to Section 3.8.
SECTION 5.3. No Segregation of Monies; No Interest. Subject to Section
5.1, monies received by Paying Agent need not be segregated in any manner except
to the extent required by law or the Indenture or the Sale and Servicing
Agreement and may be deposited under such general conditions as may be
prescribed by law, and neither Owner Trustee nor any Paying Agent shall be
liable for any interest thereon.
SECTION 5.4. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Subject to Section
2.6, Owner Trustee shall (a) maintain (or cause to be maintained) the books of
Issuer on a calendar year basis on the accrual method of accounting, (b) deliver
(or cause to be delivered) to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its Federal
and state income tax returns, (c) prepare and file such tax returns relating to
Issuer (including a partnership information return, Form 1065), and make such
elections as may from time to time be required or appropriate under any
applicable state or Federal statute or rule or regulation thereunder so as to
maintain the Issuer's characterization as a partnership for Federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.1(b) with respect to income or distributions to
Certificateholders. Owner Trustee
13 TRUST AGREEMENT
19
shall cooperate with the Depositor in making all elections pursuant to this
Section as directed in writing by the Depositor. Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. Owner Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.5. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.4 but subject to Section 2.6,
Depositor shall sign on behalf of Issuer the tax returns (if any) of Issuer,
unless applicable law requires Owner Trustee to sign such documents, in which
case such documents shall be signed by Owner Trustee at the written direction of
Depositor.
(b) Subject to Section 2.6, Depositor shall be designated the
"tax matters partner" of Issuer pursuant to the Code.
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.
SECTION 6.1. General Authority. Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which Issuer is named as
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which Issuer is named as a party and any
amendment thereto, in each case, in such form as Depositor shall approve, as
evidenced conclusively by Owner Trustee's execution thereof, and on behalf of
Issuer at the written direction of Depositor, to direct Indenture Trustee to
authenticate and deliver Class A Notes in the aggregate principal amount of
$73,703,000, Class B Notes in the aggregate principal amount of $18,701,000 and
Class C Notes in the aggregate principal amount of $11,000,000. In addition to
the foregoing, Owner Trustee is authorized, but shall not be obligated, to take
all actions required of Issuer pursuant to the Basic Documents. Owner Trustee is
further authorized from time to time to take such action as Servicer or
Administrator recommends or directs in writing with respect to the Basic
Documents, except to the extent that this Agreement expressly requires the
consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer
Issuer in the interest of Certificateholders, subject to the Basic Documents and
in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of Owner
14 TRUST AGREEMENT
20
Trustee or Issuer hereunder or under any Basic Document, and Owner Trustee shall
not be liable for the default or failure of Administrator to carry out its
obligations under the Administration Agreement. Except as expressly provided in
the Basic Documents, the Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct Owner Trustee in the
management of Issuer. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if Owner Trustee shall have
reasonably determined or been advised by counsel that such action is
likely to result in liability on the part of Owner Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law and a copy of such opinion has been provided to Seller
and Servicer.
(c) Whenever Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or any Basic Document or is unsure as to the application
of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by Owner Trustee or is silent
or is incomplete as to the course of action that Owner Trustee is
required to take with respect to a particular set of facts, Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted or
application of such provision, and to the extent Owner Trustee acts or
refrains from acting in good faith in accordance with any written
instruction of the Certificateholders received, Owner Trustee shall not
be liable on account of such action or inaction to any Person. If Owner
Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the
Certificate holders, and shall have no liability to any Person for such
action or inaction.
15 TRUST AGREEMENT
21
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which Owner Trustee is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by Owner
Trustee pursuant to Section 6.3; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against Owner Trustee. Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for Issuer or to record this Agreement or
any Basic Document. Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Owner Trust Estate that result from actions by, or
claims against, Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or
Instructions. Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Owner Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of Issuer set forth in Section 2.3 or (b)
that, to the actual knowledge of Owner Trustee, would (i) affect the treatment
of the Notes as indebtedness for federal income or state income or franchise tax
purposes, (ii) be deemed to cause a taxable exchange of the Notes for federal
income or state income or franchise tax purposes or (iii) cause Issuer or any
portion thereof to be taxable as an association or publicly traded partnership
taxable as a corporation for federal income or state income or franchise tax
purposes. The Certificateholders shall not direct Owner Trustee to take action
that would violate the provisions of this Section.
ARTICLE VII CONCERNING OWNER TRUSTEE.
SECTION 7.1. Acceptance of Trusts and Duties. Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. Owner Trustee also agrees
16 TRUST AGREEMENT
22
to disburse all moneys actually received by it constituting part of the Owner
Trust Estate upon the terms of the Basic Documents and this Agreement. Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct, bad
faith or negligence or (ii) in the case of the inaccuracy of any representation
or warranty contained in Section 7.3 expressly made by Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) Owner Trustee shall not be liable for any error of
judgment made by a Responsible Officer of Owner Trustee;
(b) Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of Depositor, Servicer, Administrator or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due
execution hereof by Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificates, and
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Basic Documents;
(f) Owner Trustee shall not be liable for the default or
misconduct of Indenture Trustee, any Paying Agent, Servicer, Custodian
or Administrator under any of the Basic Documents or otherwise and
Owner
17 TRUST AGREEMENT
23
Trustee shall have no obligation or liability to perform the
obligations of Issuer under this Agreement or the Basic Documents that
are required to be performed by any Paying Agent under this Agreement,
Indenture Trustee under the Indenture, Servicer or Custodian under the
Sale and Servicing Agreement or Administrator under the Administration
Agreement; and
(g) Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by Owner Trustee therein or thereby.
The right of Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and Owner Trustee shall not be answerable for other than its
negligence, bad faith or willful misconduct in the performance of any
such act.
SECTION 7.2. Furnishing of Documents. Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Basic Documents.
SECTION 7.3. Representations and Warranties. Owner Trustee hereby
represents and warrants to Depositor, for the benefit of the Certificateholders,
that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding
obligation of Owner Trustee, enforceable against Owner Trustee in
accordance with its respective terms, subject, as to enforceability, to
applicable bankruptcy,
18 TRUST AGREEMENT
24
insolvency, reorganization, conservatorship, receivership, liquidation
and other similar laws affecting enforcement of the rights of creditors
of banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of Owner Trustee or
any judgment or order binding on it, or constitute any default under
its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this
Agreement or the Basic Documents, Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into
with any of them, but Owner Trustee shall not be liable for the conduct
or misconduct of such agents or attorneys selected with reasonable care
and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected with
reasonable care and employed by it. Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel,
accountants or other such persons and not contrary to this Agreement or
any Basic Document.
19 TRUST AGREEMENT
25
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Chase Manhattan Bank
Delaware acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of Owner Trustee on the Certificates) shall be taken as the
statements of Depositor, and Owner Trustee assumes no responsibility for the
correctness thereof. Owner Trustee makes no representations as to the validity
or sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under the Sale
and Servicing Agreement or the Noteholders under the Indenture, including: the
existence, condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to Issuer or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of Indenture
Trustee, any Paying Agent, Administrator or Servicer or any subservicer taken in
the name of Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes. Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with Depositor, Indenture Trustee,
Administrator and Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.
SECTION 8.1. Owner Trustee's Fees and Expenses. Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
20 TRUST AGREEMENT
26
separately agreed upon in writing before the date hereof between Depositor and
Owner Trustee, and Owner Trustee shall be entitled to be reimbursed by Depositor
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as Owner Trustee may employ in connection with the exercise
and performance of its rights and its duties hereunder.
SECTION 8.2. Indemnification. Depositor shall be liable as primary
obligor for, and shall indemnify Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against Owner Trustee or any Indemnified Party in any way relating to
or arising out of this Agreement, the Basic Documents, the Owner Trust Estate,
the administration of the Owner Trust Estate or the action or inaction of Owner
Trustee hereunder, except only that Depositor shall not be liable for or
required to indemnify Owner Trustee from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
7.1. The indemnities contained in this Section shall survive the resignation or
termination of Owner Trustee or the termination of this Agreement. If any suit,
action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Indemnified Party in
respect of which indemnity may be sought pursuant to this Section, such
Indemnified Party shall promptly notify Depositor in writing, and Depositor upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others
Depositor may designate in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. Depositor shall not be
liable for any settlement of any claim or proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, Depositor agrees to indemnify any Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
Depositor shall not, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
21 TRUST AGREEMENT
27
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX TERMINATION OF TRUST AGREEMENT.
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and Issuer shall terminate and be of no further force or
effect, upon the final distribution by Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and Article V. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(x) operate to terminate this Agreement or Issuer, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of Issuer or Owner Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither Depositor nor
any Certificateholder shall be entitled to revoke or terminate the
Issuer.
(c) Notice of any termination of Issuer, specifying the
Distribution Date upon which the Certificateholders shall surrender
their Certificates to Certificate Registrar for payment by the Paying
Agent of the final distribution and cancellation, shall be given by
Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from Servicer
given pursuant to Section 9.1(c) of the Sale and Servicing Agreement,
stating (i) the Distribution Date upon or with respect to which final
payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Certificate
Registrar therein designated, (ii) the amount of any such final payment
(per $1,000 of Certificate Balance) and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Registrar therein
specified. Owner Trustee shall give such notice to Certificate
Registrar (if other than Owner Trustee) and Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, Paying Agent shall cause to be
distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.1.
22 TRUST AGREEMENT
28
If all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, Owner Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, Owner Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in Issuer after exhaustion of
such remedies shall be distributed, subject to applicable escheat laws, by Owner
Trustee to Depositor.
(d) Upon the winding up of Issuer and its termination, Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance
with the provisions of Section 3810 of the Business Trust Statute.
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.
SECTION 10.1. Eligibility Requirements for Owner Trustee. Owner Trustee
shall at all times be a corporation (i) authorized to exercise corporate trust
powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or examination by Federal or state authorities. If
such corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, Owner Trustee shall resign immediately in the manner
and with the effect specified in Section 10.2. In addition, at all times Owner
Trustee or a co-trustee shall be a Person that satisfies the requirements of
Section 3807(a) of the Business Trust Statute (the "Delaware Trustee").
SECTION 10.2. Resignation or Removal of Owner Trustee. Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to Administrator. Upon receiving such notice of
resignation, Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no
23 TRUST AGREEMENT
29
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee; provided, however, that such right to
appoint or to petition for the appointment of any such successor shall in no
event relieve the resigning Owner Trustee from any obligations otherwise imposed
on it under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by Administrator, or if at any time Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of Owner Trustee or of its property shall be appointed, or any public officer
shall take charge or control of Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then Administrator
may remove Owner Trustee. If Administrator shall remove Owner Trustee under the
authority of the immediately preceding sentence, Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee and payment of all fees owed to the
outgoing Owner Trustee.
Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee and the filing of a certificate of amendment to the
Certificate of Trust if required by the Business Trust Statute. Administrator
shall provide notice of such resignation or removal of Owner Trustee to each of
the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Administrator and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
24 TRUST AGREEMENT
30
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, Indenture Trustee, the Noteholders and the
Rating Agencies. If Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of
Administrator.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any corporation
into which Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of Owner
Trustee, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of Owner Trustee hereunder; provided that such
corporation shall be eligible pursuant to Section 10.1; and provided further
that Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
Administrator and Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
Owner Trustee to act as co-trustee, jointly with Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to Issuer, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Administrator and Owner Trustee may
consider necessary or desirable. If Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, Owner
Trustee alone shall have the power to make such appointment. If Delaware Trustee
shall become incapable of acting, resign or be removed, unless Owner Trustee is
qualified to act as Delaware Trustee, a successor co-trustee shall promptly be
appointed in the manner specified
25 TRUST AGREEMENT
31
in this Section 10.5 to act as Delaware Trustee. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 10.1 and no notice of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon Owner Trustee shall be conferred
upon and exercised or performed by Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, Owner
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to Issuer or any
portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee,
but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) Administrator and Owner Trustee acting jointly
may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, Owner Trustee. Each
such instrument shall be filed with Owner Trustee and a copy thereof given to
Administrator.
26 TRUST AGREEMENT
32
Any separate trustee or co-trustee may at any time appoint Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by Owner
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1. Supplements and Amendments. (a) This Agreement may
be amended by Depositor and Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions
as may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to
be made to cause all or a portion of Issuer to be treated as,
a "financial asset securitization investment trust" under the
Code, and (B) in connection with any such election, to modify
or eliminate existing provisions set forth in this Agreement
relating to the intended federal income tax treatment of the
Notes or Certificates and Issuer in the absence of the
election; it being a condition to any such amendment that each
Rating Agency shall have notified the Depositor, the Servicer,
Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the
rating of any outstanding Notes with respect to which it is a
Rating Agency; and
(iii) to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable (a) the
transfer to Issuer of all or any portion of the Receivables to
be derecognized under
27 TRUST AGREEMENT
33
GAAP by Depositor to Issuer, (b) Issuer to avoid becoming a
member of Seller's consolidated group under GAAP or (c) the
Depositor, any Seller Affiliate or any of their Affiliates to
otherwise comply with or obtain more favorable treatment under
any law or regulation or any accounting rule or principle; it
being a condition to any such amendment that each Rating
Agency shall have notified the Depositor, the Servicer, the
Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the
rating of any outstanding Notes with respect to which it is a
Rating Agency.
(b) This Agreement may also be amended from time to time by Depositor
and Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and, to the extent affected thereby, the consent
of the Holders of Certificates evidencing not less than a majority of the
Certificate Balance for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
provided that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made for the benefit
of the Noteholders or the Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Notes and the Certificate Balance
required to consent to any such amendment, without the consent of the Holders of
all the outstanding Notes and Holders of all outstanding Certificates.
(c) Promptly after the execution of any such amendment or consent,
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, Indenture Trustee and each of
the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent, where required, shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as Owner Trustee may prescribe.
28 TRUST AGREEMENT
34
(e) Promptly after the execution of any amendment to the Certificate of
Trust, Owner Trustee shall cause the filing of such amendment with the Secretary
of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, Owner Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Owner Trustee, Issuer, Depositor,
Administrator, Certificateholders, Servicer and, to the extent expressly
provided herein, Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Owner Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed certified mail, return receipt requested, if to Owner Trustee,
addressed to the Corporate Trust Office; if to Depositor, addressed to 000 Xxx
Xxxxx, Xxxxxxxxx Xxxx 00000-0000, Attention: President; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. Any
notice so
29 TRUST AGREEMENT
35
mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Depositor,
Owner Trustee and its successors and each Certificateholder and its successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 11.8. No Petition. Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and Indenture Trustee and each
Noteholder, or Note Owner by accepting the benefits of this Agreement, hereby
covenants and agrees that they will not at any time institute against Depositor,
or join in any institution against Depositor of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, this Agreement or any
of the Basic Documents.
SECTION 11.9. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in Issuer only and do not represent interests in or
obligations of Seller, Servicer, Administrator, Depositor, Owner Trustee,
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic Documents.
30 TRUST AGREEMENT
36
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Certificate Transfer Restrictions. The Certificates may
not be acquired by or for the account of or with assets of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA")) that is subject to the provisions of Title 1 of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing Certificates on
behalf of a Benefit Plan.
SECTION 11.13. Servicer. Servicer is authorized to execute on behalf of
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Issuer to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, Owner Trustee shall execute and
deliver to Servicer a power of attorney appointing Servicer as Issuer's agent
and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
SECTION 11.14. Sale and Servicing Agreement. Owner Trustee is hereby
authorized and directed to perform the duties and obligations of the Owner
Trustee set forth in Sections 4.4(b), 4.7, 8.4 and 10.15 of the Sale and
Servicing Agreement.
31 TRUST AGREEMENT
37
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
CHASE MANHATTAN BANK
DELAWARE, a Delaware banking
corporation, as Owner Trustee
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
KEY CONSUMER ACCEPTANCE
CORPORATION, as Depositor
By: /s/ XXXXX X. XXXXX
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief
Executive Officer
S-1 TRUST AGREEMENT
38
EXHIBIT A
NUMBER $
R- CUSIP NO. _________
DISTRIBUTIONS ON THIS CERTIFICATE ARE DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE
FACE HEREOF.
AFG RECEIVABLES TRUST 1997-A
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of Issuer,
as defined below, the property of which includes a pool of Motor Vehicle Loans
sold to Issuer by Key Consumer Acceptance Corporation.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF KEY
CONSUMER ACCEPTANCE CORPORATION OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT
DESCRIBED BELOW.)
THIS CERTIFIES THAT is the registered owner of DOLLARS nonassessable,
fully-paid, beneficial ownership interest in certain distributions of AFG
RECEIVABLES TRUST 1997-A ("Issuer") formed by Key Consumer Acceptance
Corporation, a Delaware corporation ("Seller").
TRUST AGREEMENT
Exhibit A, Page 1
39
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK CHASE MANHATTAN
DELAWARE BANK DELAWARE
or
as Owner Trustee as Owner Trustee
By _______________________
Authenticating Agent
By________________________ By _______________________
Authorized Signatory Authorized Signatory
Issuer was created pursuant to a Trust Agreement dated as of June 11,
1997, between Seller and Chase Manhattan Bank Delaware, as owner trustee ("Owner
Trustee") as amended by an Amended and Restated Trust Agreement dated as of June
20, 1997 between the Seller and the Owner Trustee (the "Trust Agreement"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in Appendix X to the Sale and Servicing Agreement
among Issuer, Key Consumer Acceptance Corporation, as Seller, Key Bank USA,
National Association, as Servicer, and Bankers Trust Company, as Indenture
Trustee, dated as of June 20, 1997, as the same may be amended or supplemented
from time to time.
This Certificate is one of the duly authorized Certificates designated
as "Asset Backed Certificates" (herein called the "Certificates"). Also issued
under the Indenture dated as of June 20, 1997, between Issuer and Bankers Trust
Company as Indenture Trustee, are three classes of Notes designated as "Class A
6.35% Asset Backed Notes" (the "Class A Notes"), "Class B 6.65% Asset Backed
Notes" (the "Class B Notes") and "Class C 7.20% Asset Backed Notes" (the "Class
C Notes" and, together with the Class A Notes and the Class B Notes, the
"Notes"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which such holder is bound.
TRUST AGREEMENT
Exhibit A, Page 2
40
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
It is the intent of Seller, Servicer, Depositor and Certificateholders
that, for purposes of Federal income taxes, until the Certificates are held by
more than one person, the Issuer will be disregarded as an entity separate from
its owner. If the Certificates are held by more than one person or the Issuer is
recharacterized as a separate entity, it is the intent of Seller, Servicer,
Depositor and Certificateholders that, for purposes of Federal income taxes, the
Issuer will be treated as a partnership and the Certificateholders (including
Depositor) will be treated as partners in that partnership. Depositor and the
other Certificateholders by acceptance of a Certificate, agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for such tax
purposes.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
Depositor, or join in any institution against Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, the
Trust Agreement or any of the Basic Documents.
The Certificates do not represent an obligation of, or an interest in,
Seller, Servicer, Administrator, Depositor, Owner Trustee or any Affiliates of
any of them and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement, the Indenture or the Basic Documents.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Owner Trustee, by manual signature, this
Certificate shall
TRUST AGREEMENT
Exhibit A, Page 3
41
not entitle the holder hereof to any benefit under the Trust Agreement or
the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Owner Trustee, on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
AFG RECEIVABLES TRUST 1997-A
By: CHASE MANHATTAN BANK
DELAWARE, a Delaware banking
corporation, not in its individual
capacity, but solely as Owner Trustee
Dated: By:
----------------------------------
Exhibit A, Page 4 TRUST AGREEMENT
42
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip
code, of assignee)
-------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
-------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-----------------------
Signature Guaranteed:
*
-----------------------
-----------------------------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or trust company.
Exhibit A, Page 5 TRUST AGREEMENT
43
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
AFG RECEIVABLES TRUST 1997-A
THIS Certificate of Trust of AFG Receivables Trust 1997-A (the
"Trust"), dated as of June __, 1997, is being duly executed and filed by Chase
Manhattan Bank Delaware, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, ss. 3801 et
seq.).
1. Name. The name of the business trust formed hereby is AFG
RECEIVABLES TRUST 1997-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust resident in the State of Delaware is Chase Manhattan Bank Delaware,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000.
3. This Certificate of Trust will be effective June __, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE, a
Delaware banking corporation, not in
its individual capacity, but solely
as owner trustee of the Trust.
By:
----------------------------------------
Name:
Title:
TRUST AGREEMENT
