EXECUTION COPY
TRUST AGREEMENT
Dated as of July 21, 1998
between
ARCADIA RECEIVABLES FINANCE CORP.
and
WILMINGTON TRUST COMPANY
Owner Trustee
ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3. Section References . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II CREATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.1. Creation of Trust. . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3. Purposes and Powers. . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4. Appointment of Owner Trustee . . . . . . . . . . . . . . . . . . 4
Section 2.5. Initial Capital Contribution of Trust Property . . . . . . . . . 4
Section 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.7. Title to Trust Property. . . . . . . . . . . . . . . . . . . . . 4
Section 2.8. Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.9. Representations and Warranties of the Depositor and the Owner. . 5
ARTICLE III THE CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.1. Initial Ownership. . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2. The Certificate. . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.3. Authentication of Certificates . . . . . . . . . . . . . . . . . 6
ARTICLE IV ACTIONS BY OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 7
Section 4.1. Prior Notice to Owner with Respect to Certain Matters. . . . . . 7
Section 4.2. Action by Owner with Respect to Bankruptcy . . . . . . . . . . . 7
Section 4.3. Restrictions on Power. . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE . . . . . . . . . . . . . . . 8
Section 5.1. General Authority. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.2. General Duties . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5.3. Action upon Instruction. . . . . . . . . . . . . . . . . . . . . 8
Section 5.4. No Duties Except as Specified in this Agreement or in
Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.5. No Action Except under Specified Documents or Instructions . . . 10
Section 5.6. Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.7. Administration Agreement . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI CONCERNING THE OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . 11
Section 6.1. Acceptance of Trustee and Duties . . . . . . . . . . . . . . . . 11
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.2. Furnishing of Documents. . . . . . . . . . . . . . . . . . . . . 12
Section 6.3. Representations and Warranties . . . . . . . . . . . . . . . . . 12
Section 6.4. Reliance; Advice of Counsel. . . . . . . . . . . . . . . . . . . 13
Section 6.5. Not Acting in Individual Capacity. . . . . . . . . . . . . . . . 13
Section 6.6. Owner Trustee Not Liable for Certificate, Notes or
Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.7. Owner Trustee May Own Notes. . . . . . . . . . . . . . . . . . . 14
ARTICLE VII COMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . 14
Section 7.1. Owner Trustee's Fees and Expenses. . . . . . . . . . . . . . . . 14
Section 7.2. Non-Recourse Obligations . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.1. Termination of the Trust . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES. . . . . . . 15
Section 9.1. Eligibility Requirements for Owner Trustee . . . . . . . . . . . 15
Section 9.2. Resignation or Removal of Owner Trustee. . . . . . . . . . . . . 16
Section 9.3. Successor Owner Trustee. . . . . . . . . . . . . . . . . . . . . 16
Section 9.4. Merger or Consolidation of Owner Trustee . . . . . . . . . . . . 17
Section 9.5. Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . 17
ARTICLE X MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 18
Section 10.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10.2. No Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 10.3. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.4. Severability of Provisions . . . . . . . . . . . . . . . . . . . 20
Section 10.5. Certificate Nonassessable and Fully Paid . . . . . . . . . . . . 20
Section 10.6. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.7. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.8. Limitations on Rights of Others. . . . . . . . . . . . . . . . . 20
Section 10.9. No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 10.10. Certificate Transfer Restrictions. . . . . . . . . . . . . . . . 21
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THIS TRUST AGREEMENT, dated as of July 21, 1998 (the "Trust Agreement"),
is made between Arcadia Receivables Finance Corp., a Delaware corporation
(the "Seller") and Wilmington Trust Company, a Delaware corporation, as Owner
Trustee (in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. All terms defined in the Sale and Servicing
Agreement (as defined below) shall have the same meaning in this Agreement.
Whenever capitalized and used in this Agreement, the following words and
phrases, unless otherwise specified, shall have the following meanings:
ADMINISTRATION AGREEMENT: The Administration Agreement, dated as of
July __, 1998, between the Administrator and the Trust, as the same may be
amended and supplemented from time to time.
ADMINISTRATOR: Wilmington Trust Company, a Delaware corporation, or any
successor Administrator under the Administration Agreement.
AFL: Arcadia Financial Ltd., a Minnesota corporation, and its
successors in interest.
AGREEMENT OR "THIS AGREEMENT": This Trust Agreement, all amendments and
supplements thereto and all exhibits and schedules to any of the foregoing.
AUTHENTICATION AGENT: Wilmington Trust Company, or its successor in
interest, and any successor authentication agent appointed as provided in
this Agreement.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as the same may be amended from time to time.
CERTIFICATE OR CERTIFICATE OF THE OWNER: A certificate executed by the
Owner Trustee evidencing the beneficial ownership interest in the Trust,
substantially in the form of Exhibit B.
CERTIFICATE OF TRUST: The Certificate of Trust in the form of Exhibit A
hereto filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
CORPORATE TRUST OFFICE: The principal office of the Owner Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the Effective Date is located at Xxxxxx Square
North, 1100 North Market Street, Wilmington, Delaware
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19890-0001, Attention: Corporate Trust Administration; the telecopy number
for the Corporate Trust Office on the date of the execution of this Agreement
is (000) 000-0000.
DEPOSITOR: The Seller in its capacity as depositor hereunder.
EFFECTIVE DATE: July 21, 1998
NOTEHOLDER or HOLDER: The meaning assigned to such term in the
Indenture.
OWNER. The Seller
OWNER TRUSTEE: Wilmington Trust Company, or its successor in interest,
acting not individually but solely as trustee, and any successor trustee
appointed as provided in this Agreement.
SALE AND SERVICING AGREEMENT: The Amended and Restated Sale and
Servicing Agreement dated as of July 21, 1998, among the Trust, Arcadia
Receivables Conduit Corp., as Original Issuer, the Seller, AFL, in its
individual capacity and as Servicer, Bank of America National Trust and
Savings Association, as Administrative Agent and as RCC Agent, Xxxxxx
Guaranty Trust Company of New York, as DFC Agent, and Norwest Bank
Minnesota, National Association, as Backup Servicer, Collateral Agent and
Indenture Trustee, as the same may be amended and supplemented from time to
time.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
SELLER: Arcadia Receivables Finance Corp., a Delaware corporation, or
its successor in interest.
TRUST: The trust created by this Agreement, the estate of which
consists of the Trust Property.
TRUST PROPERTY: The property and proceeds of every description conveyed
pursuant to Section 2.5 hereof and Sections 1.8 and 2.1 of the Sale and
Servicing Agreement, together with the Secured Accounts (including all
Eligible Investments therein and all proceeds therefrom).
Section 1.2. USAGE OF TERMS (a) With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography, and other means of reproducing words
in a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation." To the extent that definitions are contained
in this Agreement, or in any such certificate or other document, such
definitions shall control.
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(b) The references to the Related Documents entered into in
connection with this Agreement shall be read to include, where appropriate,
the original (as amended and supplemented) agreement related to each such
amended and restated document.
Section 1.3. SECTION REFERENCES. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
ARTICLE II
CREATION OF TRUST
Section 2.1. CREATION OF TRUST The Trust created by this Trust
Agreement shall be known as "Arcadia Automobile Receivables Warehouse Trust,"
in which name the Trust may conduct business, make and execute contracts and
other instruments and xxx and be sued.
Section 2.2. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Depositor and the Owner.
Section 2.3. PURPOSES AND POWERS. The purpose of the Trust has been
and is, and the Trust shall have the power and authority, to engage in the
following activities:
(i) to issue the Notes pursuant to the Indenture and to sell
the Notes; to redeem Notes in accordance with the terms and conditions
set forth in the Indenture;
(ii) to issue $1.00 aggregate principal amount of the Certificate
to the Owner upon the written order of the Depositor;
(iii) with the proceeds of the sale of the Notes to pay to the
Seller from time to time pursuant to the Sale and Servicing Agreement;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Trust Property to the Collateral Agent pursuant to the Security
Agreement for the benefit of the Indenture Trustee and the Security
Insurer and to hold, manage and distribute to the Owner pursuant to the
terms of the Sale and Servicing Agreement any portion of the Trust
Property released from the Lien of, and remitted to the Trust pursuant
to, the Security Agreement; and, in connection with a sale by the Trust
of the Trust Property, to assign, grant, transfer, pledge, mortgage and
convey the Trust Property to such purchaser or purchasers and upon
receipt of proceeds from such sale release the Lien granted pursuant to
the Security Agreement;
(v) to enter into and perform its obligations under the Related
Documents to which it is to be a party;
(vi) 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
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(vii) subject to compliance with the Related Documents, to engage
in such other activities as may be required in connection with
conservation of the Trust Property and the making of distributions to
the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or expressly authorized by the terms of
this Agreement or the Related Documents.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST PROPERTY. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee
acknowledged receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Trust Property
and shall be held by the Owner Trustee. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.6. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the use and benefit of the Owner, subject to
the interests and rights in the Trust Property granted to other Persons by
the Related Documents. It is the intention and agreement of the parties
hereto that the Trust 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 and agreement of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall be
disregarded as an entity, and the assets of the Trust treated as owned in
whole by the Depositor. The parties hereto agree to take no action contrary
to the foregoing intention. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust
Section 2.7. TITLE TO TRUST PROPERTY.
(a) Legal title to all the Trust Property shall be vested at all
times in the Trust as a separate legal entity except where applicable
law in any jurisdiction requires title to any part of the Trust Property
to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
(b) The Owner shall not have legal title to any part of the Trust
Property. No transfer, by operation of law or otherwise, of any right,
title or interest by the Owner of its ownership interest in the Trust
Property 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 Trust Property.
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Section 2.8. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
Delaware. The Trust shall not have any employees in any state other than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Owner Trustee, the Servicer or any agent of the Trust from having
employees within or without the State of Delaware. Payments will be received
by the Trust only in Delaware, and payments will be made by the Trust only
from Delaware. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
Section 2.9. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND THE
OWNER. On the date hereof, the Seller, as the Depositor and the Owner, makes
the following representations and warranties with respect to itself on which
the Owner Trustee relied and relies in accepting the Trust Property in trust
and issuing the Certificates:
(a) ORGANIZATION AND GOOD STANDING. It has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority to own its properties
and to conduct its business as such properties are currently owned and
as such business is currently conducted and is proposed to be conducted
pursuant to this Agreement and the Related Documents.
(b) DUE QUALIFICATION. It 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 its property, the conduct of its business and the performance
of its obligations under the Related Documents requires such
qualification.
(c) POWER AND AUTHORITY. It has the power and authority to
execute and deliver this Agreement and its Related Documents and to
perform its obligations pursuant thereto; and the execution, delivery
and performance of its Related Documents have been duly authorized by
all necessary corporate action.
(d) NO CONSENT REQUIRED. No consent, license, approval or
authorization or registration or declaration with, any Person or with
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of the Related Documents,
except for such as have been obtained, effected or made.
(e) NO VIOLATION. The consummation of the transactions
contemplated by its Related Documents and the fulfillment of its
obligations under its Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with
or without notice, lapse of time or both) a default under, its
certificate of incorporation or by-laws, or any indenture, agreement,
mortgage, deed of trust or other instrument to which it is a party or by
which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, or violate any
law, order, rule or regulation applicable to it of any court or of any
federal or state regulatory
5
body, administrative agency or other governmental instrumentality having
jurisdiction over it or any of its properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to its knowledge threatened against it before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over it or its properties (A)
asserting the invalidity of any of the Related Documents, (B) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by any of the Related Documents, or (C)
seeking any determination or ruling that might materially and adversely
affect its performance of its obligations under, or the validity or
enforceability of, any of the Related Documents
ARTICLE III
THE CERTIFICATE
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Certificate, the Depositor was the sole beneficiary of the Trust.
Section 3.2. THE CERTIFICATE.
The Certificate shall be executed on behalf of the Owner Trustee by
manual or facsimile signature of any authorized signatory of the Owner
Trustee having such authority under the Owner Trustee's seal imprinted or
otherwise affixed thereon and attested on behalf of the Owner Trustee by the
manual or facsimile signature of any authorized signatory of the Owner
Trustee. The Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Owner Trustee shall be validly issued and
entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of the Certificate.
Section 3.3. AUTHENTICATION OF CERTIFICATES. Simultaneously with the
initial sale, assignment and transfer to the Trust of the Receivables
(including the interest of the Original Issuer therein) pursuant to the Sale
and Servicing Agreement, upon Depositor's order (with no less than five
Business Days prior notice) the Owner Trustee shall cause the Certificate to
be executed on behalf of the Trust, authenticated and delivered to or upon
the order of the Depositor. The Certificate shall not 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 B executed by the Owner
Trustee or the Authentication Agent, by manual or facsimile signature; such
authentication shall constitute conclusive evidence that such Certificate
shall have been duly authenticated and delivered hereunder. Wilmington Trust
Company is hereby initially appointed Authentication Agent. The Certificate
shall be dated the date of its authentication.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. PRIOR NOTICE TO OWNER WITH RESPECT TO CERTAIN MATTERS.The
Owner Trustee shall not take any of the following actions unless, at least 30
days before the taking of such action, the Owner Trustee shall have notified
the Owner in writing of the proposed action and the Owner shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that the Owner has withheld consent or provided alternative
direction:
(a) the election by the Trust to file an amendment to the
Certificate of Trust unless such amendment is required to be filed under
the Business Trust Statute or unless such amendment would not materially
and adversely affect the interests of the Owner;
(b) the amendment of the Indenture or the Security Agreement by a
supplemental indenture or agreement in circumstances where the consent
of the Indenture Trustee or any Noteholder is required unless (i) such
amendment would not materially and adversely affect the interests of the
Owner or (ii) such amendment is made in connection with a Securitized
Offering in accordance with the final sentence of Section 10.1 (a); or
(c) the amendment, change or modification of the Administration
Agreement, unless (i) such amendment would not materially and adversely
affect the interests of the Owner or (ii) such amendment is made in
connection with a Securitized Offering in accordance with the final
sentence of Section 10.1(a).
Section 4.2. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power, except at the written direction of the
Owner, to commence a voluntary proceeding in bankruptcy relating to the Trust.
Section 4.3. RESTRICTIONS ON POWER. Neither the Owner nor the
Depositor shall have the right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement or any other
Related Document, unless such Person previously shall have given to the Owner
Trustee a written notice of default and of the continuance thereof, as
provided in this Agreement and such Person shall have made written request
upon the Owner Trustee to institute such action, suit or proceeding in its
own name as Owner Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action,
suit, or proceeding, and during such 30-day period no request or waiver
inconsistent with such written request has been given to the Owner Trustee
pursuant to and in compliance with this Section or Section 5.3.
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Related Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Related Documents to which the Trust is to be a
party and any amendment thereto (including any amendment entered into in
connection with a Securitized Offering in accordance with the final sentence
of Section 10.1(a) hereof and any additional agreements called for by each
such amendment), and on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver the Notes in the aggregate amount of authorized
by the Indenture. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Related Documents. The Owner Trustee is further
authorized, on behalf of the Trust, to enter into the Administration
Agreement, to appoint, with the consent of the Administrative Agent, a
successor Administrator and to take from time to time such action as the
Administrative Agent recommends with respect to the Related Documents so long
as such actions are consistent with the terms of the Related Documents.
Section 5.2. GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged through the Administrator or such
agents as shall be appointed with the consent of the Administrative Agent)
all of its responsibilities pursuant to the terms of this Agreement and the
Related Documents and to administer the Trust in the interest of the Owner,
subject to the Related Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Related Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Related Document, and the Owner Trustee
shall not be liable for the default or failure of the Administrator to carry
out its obligations under the Administration Agreement.
Section 5.3. ACTION UPON INSTRUCTION.
(a) Subject to Article IV, the Owner shall have the exclusive
right to direct the actions of the Owner Trustee in the management of
the Trust, so long as such instructions are not inconsistent with the
express terms set forth herein or in any Related Document. The Owner
shall not instruct the Owner Trustee in a manner inconsistent with this
Agreement or the other Related Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Related Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that
such action is contrary to the terms hereof or of any other Related
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Related Document, the Owner Trustee shall
promptly give notice (in such form as shall be
8
appropriate under the circumstances) to the Owner requesting instruction
as to the course of action to be adopted, and to the extent the Owner
Trustee acts in good faith in accordance with any written instruction
received from the Owner, the Owner Trustee shall not be liable on
account of such action to any Person. If the 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 other Related Documents, as it
shall deem to be in the best interests of the Owner, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Related
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 the
Owner Trustee or is silent or is incomplete as to the course of action
that the Owner Trustee is required to take with respect to a particular
set of facts, the Owner Trustee may give notice (in such form as shall
be appropriate under the circumstances) to the Owner requesting
instruction and, to the extent that the Owner Trustee acts or refrains
from acting in good faith in accordance with any such instruction
received from the Owner, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 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 other Related
Documents, as it shall deem to be in the best interests of the Owner,
and shall have no liability to any Person for such action or inaction.
Section 5.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The 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 Trust Property, or to otherwise take or refrain
from taking any action under, or in connection with, any document
contemplated hereby to which the Trust is a party, except as expressly
provided by the terms of this Agreement (including as provided in Section
5.2) or in any written instruction received by the Owner Trustee pursuant to
Section 5.3; and no implied duties or obligations shall be read into this
Agreement or any Related Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for preparing, monitoring or filing any
financing or continuation statements in any public office at any time or
otherwise to perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to record this Agreement or any other Related
Document; however, the Owner Trustee will from time to time execute and
deliver such financing or continuation statements as are prepared by the
Servicer or the Administrator and delivered to the Owner Trustee for its
execution on behalf of the Trust for the purpose of perfecting or maintaining
the perfection of such a security interest or lien or effecting such a
recording. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense (and not at the expense of the Trust), promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Property that are attributable to claims against the Owner Trustee in
9
its individual capacity that are not related to the ownership or the
administration of the Trust Property.
Section 5.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of, the Trust Property except (i)
in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Related Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.3.
Section 5.6. RESTRICTIONS. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.3 or (b) that, to the actual knowledge of the Owner Trustee, would result
in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Owner shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
Section 5.7. ADMINISTRATION AGREEMENT.
(a) The Administrator is authorized to execute on behalf of the
Trust all documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file or
deliver pursuant to the Related Documents. Upon written request, the
Owner Trustee shall execute and deliver to the Administrator a power of
attorney appointing the Administrator its agent and attorney-in-fact to
execute all such documents, reports, filings, instruments, certificates
and opinions.
(b) If the Administrator shall resign or be removed pursuant to
the terms of the Administration Agreement, the Owner Trustee may, and is
hereby authorized and empowered to, subject to obtaining the prior
written consent of the Administrative Agent and the Security Insurer (as
long as no Insurer Default shall have occurred), appoint or consent to
the appointment of a successor Administrator pursuant to the
Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner
Trustee may, and is hereby authorized and empowered to, subject to
obtaining the prior written consent of the Administrative Agent (as long
as no Insurer Default shall have occurred), appoint or consent to the
appointment of a Person to perform substantially the same duties as are
assigned to the Administrator in the Administration Agreement pursuant
to an agreement containing substantially the same provisions as are
contained in the Administration Agreement.
(d) The Owner Trustee shall promptly notify the Owner, the
Depositor and the Security Insurer of any default by or misconduct of
the Administrator under the Administration Agreement of which the Owner
Trustee has received written notice or of which a Responsible Officer
has actual knowledge.
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ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.1. ACCEPTANCE OF TRUSTEE AND DUTIES. The Owner Trustee
accepts the trusts created by this Agreement and hereby agrees to perform its
duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Trust Property upon the terms of this
Agreement and any other of the Related Documents. The Owner Trustee shall
not be answerable or accountable hereunder or under any other Related
Document under any circumstances, except (i) for its own willful misconduct
or gross negligence, (ii) in the case of the inaccuracy of any representation
or warranty contained in Section 6.3, (iii) for liabilities arising from the
failure of the Owner Trustee to perform obligations expressly undertaken by
it in the last sentence of Section 5.4 hereof, (iv) for any investments
issued by the Owner Trustee or any branch or affiliate thereof in its
commercial capacity or (v) for taxes, fees or other charges on, based on or
measured by, any fees, commissions or compensation received by the Owner
Trustee in connection with any of the transactions contemplated by this
Agreement or any other Related Document. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the instructions of the Owner;
(c) no provision of this Agreement or any other Related Document
shall require the 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 other Related Document if the 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 the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or any of the
other Related Documents, including the principal of and interest on the
Notes or payments under the Policy;
(e) the 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 the Depositor or the Owner or for the form,
character, genuineness, sufficiency, value or validity of any of the
Trust Property or for or in respect of the validity or sufficiency of
the other Related Documents, other than the certificate of
authentication on the Certificate, and the Owner Trustee shall in no
event assume or incur any liability, duty, or obligation to the
Custodian, the Indenture Trustee, any Noteholder, the Collateral Agent
or to the Owner other than as expressly provided for herein and in the
other Related Documents;
11
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Custodian, the Indenture Trustee,
the Collateral Agent or the Servicer under any of the Related Documents
or otherwise and the Owner Trustee shall have no obligation or liability
to perform the obligations of the Trust under this Agreement or the
Related Documents that are required to be performed by the Administrator
under the Administration Agreement, the Custodian under the Custodian
Agreement, the Indenture Trustee under the Indenture, the Collateral
Agent under the Security Agreement or the Servicer under the Sale and
Servicing Agreement; and
(g) the 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 Related Document, at the request,
order or direction of the Owner, unless the Owner has offered to the
Owner Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any
other Related Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 6.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Owner, the Indenture Trustee, the Collateral Agent and the Security
Insurer 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 the Owner Trustee under the
Related Documents unless any such Person shall have previously received such
items.
Section 6.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor and the Owner that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority and all franchises,
grants, authorizations, consents, orders and approvals from all
governmental authorities necessary to execute, deliver and perform its
obligations under each Related Document to which the Trust is a party.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of each Related Document to which the Trust
is a party, and each Related Document will be executed and delivered by
one of its officers who is duly authorized to execute and deliver this
Agreement on its behalf.
(c) 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 the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter
12
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 or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Property resulting from actions by or claims
against the Owner Trustee individually which are unrelated to the
Related Documents.
Section 6.4. RELIANCE; ADVICE OF COUNSEL.
(a) The 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 in good faith to be genuine and to be signed by the
proper party or parties. The 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, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the 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 other Related Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with
any of them, and the Owner Trustee shall not be liable for the conduct
or misconduct of such agents or attorneys if such agents or attorneys
shall have been selected by the Owner Trustee with reasonable care, and
(ii) may consult with counsel, accountants and other skilled persons to
be selected with reasonable care and employed by it. The 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 other Related Document.
Section 6.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Related
Document shall look only to the Trust Property for payment or satisfaction
thereof.
Section 6.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATE, NOTES OR
RECEIVABLES. The recitals contained herein and in the Certificate (other
than the signature and counter-signature of the Owner Trustee on the
Certificate) shall be taken as the statements of the Depositor (other than
the signature or countersignature of the Owner Trustee on the Notes), and the
Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement, of any other Related Document or of the Certificate (other
than the signature and counter-signature of the Owner
13
Trustee on the Certificate) or the Notes (other than the signature or
counter-signature of the Owner Trustee on the Notes), or of any Receivable or
related documents. The 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 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 Trust Property or its ability to generate the payments to be distributed
to or the Noteholders under the Indenture, including, without limitation:
the existence, condition and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of
any Receivable or any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the performance by the Security Insurer under the Note Policy;
the compliance by the Seller or the Servicer with any warranty or
representation made under any Related Document or in any related document or
the accuracy of any such warranty or representation or any action of the
Indenture Trustee, the Custodian, the Collateral Agent or the Servicer taken
in the name of the Owner Trustee.
Section 6.7. OWNER TRUSTEE MAY OWN NOTES. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Depositor, the Seller, the Indenture Trustee, the
Collateral Agent and the Servicer in banking or other transactions with the
same rights as it would have if it were not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between AFL and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by AFL for
its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder; PROVIDED,
HOWEVER, that the Owner Trustee shall only be entitled to reimbursement for
expenses hereunder to the extent such expenses are fees of outside counsel
engaged by the Owner Trustee in respect of the performance of its obligations
hereunder.
Section 7.2. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in
this Agreement or any Related Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Trust Property only.
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ARTICLE VIII
TERMINATION
Section 8.1. TERMINATION OF THE TRUST.
(a) The respective obligations and responsibilities of the
Depositor, the Owner and the Owner Trustee created by this Agreement and
the Trust created by this Agreement shall terminate upon the maturity or
other liquidation of the last Receivable and the subsequent distribution
of amounts in respect of such Receivables as provided in the Related
Documents; PROVIDED, HOWEVER, that in no event shall the trust created
by this Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants living on the date of this
Agreement of Xxxx Xxxxxxx of the Commonwealth of Massachusetts; and
PROVIDED, FURTHER, that any rights to indemnification that the Owner
Trustee or its successors, assigns and agents may have shall survive the
termination of the Trust. The Servicer shall promptly notify the Owner
Trustee of any prospective termination pursuant to this Section 8.1.
The bankruptcy, liquidation, dissolution, termination, resignation,
expulsion, withdrawal, death or incapacity of Owner, shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle the
Owner'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 the Trust or Trust Property nor (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a), neither the Depositor
nor the Owner shall be entitled to revoke or terminate the Trust.
(c) Upon the winding up of the Trust and its termination, the
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 IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or
State authorities; and (iv) having (or having a parent which has) a rating of
at least Baa3 by Moody's or BBB by Standard & Poor's. 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 the Owner Trustee shall cease to be eligible
15
in accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 9.2.
Section 9.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Owner and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving
such notice of resignation, the Owner shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 9.1 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 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.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Owner or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent,
or a receiver of the Owner Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Owner Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Owner, with the consent of the Administrative Agent may
remove the Owner Trustee. If the Owner shall remove the Owner Trustee under
the authority of the immediately preceding sentence, the Owner shall promptly
appoint a successor Owner Trustee meeting the qualification requirements of
Section 9.1 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 the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until all fees and expenses, including any
indemnity payments, due to the outgoing Owner Trustee have been paid and
until acceptance of appointment by the successor Owner Trustee pursuant to
Section 9.3. The Owner shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
Section 9.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to
the Owner 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 deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Owner and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
16
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 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Owner shall mail notice of the successor of such Owner
Trustee to the Indenture Trustee, the Servicer, the Collateral Agent, the
Security Insurer, the Noteholders and the Rating Agencies. If the Owner
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 the Owner.
Section 9.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the 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 the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder,
provided such corporation shall be eligible pursuant to Section 9.1, 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,
and provided further that the Owner Trustee shall mail notice of such merger
or consolidation to the Rating Agencies.
Section 9.5. 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 Trust Property or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Owner Trustee to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any
part of the Trust Property, and to vest in such Person, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Owner
Trustee shall have the power to make such appointment. 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 9.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 9.1.
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 the Owner Trustee shall be conferred upon and exercised or
performed by the 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 the 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 the Owner
Trustee shall be incompetent or
17
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust Property or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the 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) the Administrator and the 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 the 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
the 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, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the 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 die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. AMENDMENT.
(a) This Agreement may be amended by the Depositor, the Owner and
the Owner Trustee, with the consent of the Security Insurer (as long as
no Insurer Default shall have occurred and be continuing) but without
the consent of the Noteholders, (i) to cure any ambiguity, or (ii) to
correct, supplement or modify any provisions in this Agreement;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder. In addition, this Agreement and any Related
Document may be amended by the Depositor, the Owner and the Owner
Trustee (or, in the case of a Related Document, the parties thereto), in
connection with any Securitized Offering, so long as it is a condition
precedent to the effectiveness of such amendment that any commitment to
fund increases in the
18
outstanding principal balance of the Notes under the Note Purchase
Agreement, has been terminated.
(b) This Agreement may also be amended from time to time by the
Depositor, the Owner and the Owner Trustee, with the consent of the
Security Insurer so long as no Insurer Default shall have occurred and
be continuing, and if such amendment materially and adversely affects
the interests of Noteholders, the consent of a Note Majority (which
consent of any Holder of a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive
and binding on such Holder and on all future Holders of such Note and of
any Note issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the
Note) 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 Notes; PROVIDED, HOWEVER,
that, no such amendment shall directly or indirectly (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 on any Note or the Note Interest Rate (as defined
in the Indenture) or (b) reduce the aforesaid percentage required to
consent to any such amendment or any waiver hereunder, without the
consent of the Holders of all Notes then outstanding.
(c) Prior to the execution of any such amendment or consent (other
than an amendment described in the final sentence of Section 10.1(a)),
the Owner shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent
(other than an amendment described in the final sentence of Section
10.1(a)), the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to the Indenture Trustee and the
Collateral Agent unless such parties have previously received such
notification.
(e) It shall not be necessary for the consent of the Owner
pursuant to Section 10.1(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Noteholders provided for in
this Agreement) and of evidencing the authorization of the execution
thereof by Noteholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe, including the establishment of
record dates.
(f) Prior to the execution of any amendment to this Agreement
(other than an amendment described in the final sentence of Section
10.1(a)), the 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. The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which
19
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 10.2. NO RECOURSE. The Owner by accepting the Certificate
acknowledges that the Certificate represents beneficial ownership interests
in the Trust only and does not represent interest in or obligations of the
Seller, the Owner, the Servicer, the Owner Trustee, the Indenture Trustee,
the Collateral Agent, the Security Insurer or any Affiliate of any of the
foregoing and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, or
the Related Documents.
Section 10.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to the principles of conflicts of laws thereof and the obligations, rights
and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
Section 10.4. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificate or the rights of the Owner.
Section 10.5. CERTIFICATE NONASSESSABLE AND FULLY PAID. The Owner
shall not be personally liable for obligations of the Trust, the Owner's
beneficial ownership interest in the Trust represented by the Certificate
shall be nonassessable for any losses or expenses of the Trust or for any
reason whatsoever, and the Certificate upon execution thereof by the Owner
Trustee pursuant to Section 3.3 are and shall be deemed fully paid.
Section 10.6. COUNTERPARTS. For the purpose of facilitating its
execution and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which counterparts shall
constitute but one and the same instrument.
Section 10.7. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by
certified mail-return receipt requested, and shall be deemed to have been
duly given upon receipt (a) in the case of the Owner or the Depositor, at the
following address: 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxx 000
Xxxxxxxxx, 00000-0000, Attention: Treasurer, with copies to: Arcadia
Financial Ltd., 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Chief Financial Officer, (b) in the case
of the Owner Trustee, at the Corporate Trust Office (c) in the case of the
Administrative Agent or the RCC Agent, at the following address: 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Securitization
Group; and (d) in the case of the DFC Agent, at the following address: 000
Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000-0000, Attention: Asset
Finance Group, or at such other address as shall be designated by any such
party in a written notice to the other parties.
20
Section 10.8. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of (i) the Owner Trustee, the Depositor,
the Administrator, (ii) to the extent expressly provided herein, the
Indenture Trustee, the Collateral Agent and the Noteholders and (iii) the
Security Insurer, as an intended third-party beneficiary hereunder. 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 against the
Owner or the Trust Property or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 10.9. NO PETITION. The Owner Trustee, by entering into this
Agreement, the Owner, by accepting the Certificate, and the Indenture
Trustee, each Noteholder, the Security Insurer and the Collateral Agent by
accepting the benefits of this Agreement, hereby covenant and agree that they
will not at any time institute against the Trust or the Owner, or join in any
institution against the Trust or the Owner 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 Certificate, the
Notes, this Agreement or any of the other Related Documents.
Section 10.10. CERTIFICATE TRANSFER RESTRICTIONS. To the fullest
extent permitted by applicable law, the Certificate (or any interest therein)
may not be transferred by the Owner to any Person.
21
IN WITNESS WHEREOF, the Depositor, the Owner and the Owner Trustee have
caused this Trust Agreement to be duly executed by their respective officers as
of the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.
By
------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
By
------------------------------------
Name:
Title:
Consented and Agreed:
ARCADIA FINANCIAL LTD.
By:
--------------------------------
Name:
Title:
[Signature page to Trust Agreement]
EXHIBIT A
ARCADIA CERTIFICATE OF TRUST OF
ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
THIS Certificate of Trust of ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE
TRUST (the "Trust"), dated as of July 21, 1998, is being duly executed and
filed by Wilmington Trust Company, a Delaware corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 DEL. CODE,
Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is ARCADIA
AUTOMOBILE RECEIVABLES WAREHOUSE TRUST.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration.
3. This Certificate of Trust will be effective July 21, 1998.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company, not in its
individual capacity but solely as
owner trustee under a Trust Agreement
dated as of July 21, 1998.
By
-----------------------------------
Name:
Title:
A-1
EXHIBIT B
[FORM OF OWNER CERTIFICATE]
ARCADIA AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
OWNER CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED.
This Certificate evidences a beneficial ownership interest in the Trust,
as defined below, the property of which includes certain retail installment
sale contracts and promissory notes secured by new and used automobiles and
light trucks and sold to the Trust by Arcadia Receivables Finance Corp.
(This Certificate does not represent an obligation of, or an interest
in, Arcadia Receivables Finance Corp., Arcadia Financial Ltd. or any
affiliate of either of them.)
B-1
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity but not in its individual capacity but
solely as Owner Trustee or solely as Owner Trustee
By Wilmington Trust Company,
Authenticating Agent
by by
--------------------------------- ------------------------------------
THIS CERTIFIES THAT Arcadia Receivables Finance Corp. is the registered
owner of interest in the Arcadia Automobile Receivables Warehouse Trust (the
"Trust"). The Trust was created pursuant to a Trust Agreement, dated as of
July 21, 1998 (the "Trust Agreement"), between Arcadia Receivables Finance
Corp. and Wilmington Trust Company, not in its individual capacity but solely
as owner trustee (the "Owner Trustee"). To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in the Trust Agreement or the Amended and Restated Sale and Servicing
Agreement, dated as of July 21, 1998 (the "Sale and Servicing Agreement"),
among the Trust, Arcadia Receivables Finance Corp., Arcadia Receivables
Conduit Corp., Arcadia Financial Ltd., in its individual capacity and as
servicer ("AFL" or the "Servicer"), Bank of America National Trust and
Savings Association, Xxxxxx Guaranty Trust Company of New York, and Norwest
Bank Minnesota, National Association, as Backup Servicer, Collateral Agent
and Indenture Trustee, as applicable.
This Certificate is the duly authorized Certificate (herein called the
"Certificate") provided for in the Trust Agreement. The Trust has also
issued under the Amended and Restated Indenture dated as of July 21, 1998,
between the Trust and Norwest Bank Minnesota, National Association, as
trustee and collateral agent, Notes designated as Floating Rate Variable
Funding Automobile Receivables-Backed 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 owner by virtue of the
acceptance hereof assents and by which Owner is bound.
The recitals contained herein shall be taken as the statements of the
Depositor, the Owner or the Servicer, as the case may be, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Certificate or of any Purchased Receivable or related document.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not
in its individual capacity has caused this Certificate to be duly executed.
Dated: July 21, 1998 ARCADIA AUTOMOBILE RECEIVABLES
WAREHOUSE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
