AMENDED AND RESTATED
TRUST AGREEMENT
by and between
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor,
and
ALLFIRST FINANCIAL CENTER NATIONAL ASSOCIATION
as Owner Trustee
Dated as of February 1, 2001
CIT EQUIPMENT COLLATERAL 2001-1
TABLE OF CONTENTS
Page
Article I DEFINITIONS..................................................1
Section 1.01 Defined Terms Generally..................................1
Section 1.02 Specific Defined Terms...................................1
Section 1.03 Usage of Terms...........................................4
Section 1.04 Section References.......................................4
Section 1.05 Accounting Terms.........................................4
Article II ORGANIZATION AND ESTABLISHMENT OF TRUST......................4
Section 2.01 Establishment of Trust; Name.............................4
Section 2.02 Office...................................................4
Section 2.03 Purposes and Powers......................................5
Section 2.04 Appointment of Owner Trustee.............................5
Section 2.05 Organizational Expenses..................................6
Section 2.06 Declaration of Trust.....................................6
Section 2.07 Liability of Trust Depositor.............................6
Section 2.08 Title to Trust Property..................................6
Section 2.09 Situs of Trust...........................................6
Section 2.10 Representations and Warranties of the Trust
Depositor................................................7
Section 2.11 Federal Income Tax Treatment.............................8
Article III EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN........8
Section 3.01 Initial Ownership........................................8
Section 3.02 The Equity Certificate...................................9
Section 3.03 Authentication and Delivery of Equity Certificate........9
Section 3.04 Registration of Transfer and Exchange of the Equity
Certificate..............................................9
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity
Certificate.............................................10
Section 3.06 Persons Deemed Owners...................................10
Section 3.07 Access to List of Equity Certificateholder's Name
and Addresses...........................................10
Section 3.08 Maintenance of Office or Agency.........................11
Section 3.09 Ownership by Trust Depositor of Equity Certificate......11
Article IV ACTIONS BY OWNER TRUSTEE....................................11
Section 4.01 Prior Notice to Equity Certificateholder with Respect
to Certain Matters......................................11
Section 4.02 Action by Owner with Respect to Certain Matters.........12
Section 4.03 Action by Owner with Respect to Bankruptcy..............12
Section 4.04 Restrictions on Owner's Power...........................12
Article V APPLICATION AND DISTRIBUTION OF TRUST FUNDS;
CERTAIN DUTIES..............................................12
Section 5.01 [Reserved]..............................................12
Section 5.02 [Reserved]..............................................12
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Section 5.03 Reports.................................................13
Section 5.04 Taxes...................................................13
Section 5.05 Method of Payment.......................................13
Section 5.06 No Segregation of Moneys; No Interest...................13
Section 5.07 Accounting and Reports to the Equity Certificateholder,
the Internal Revenue Service and Others.................13
Section 5.08 Signature on Returns; Tax Matters Partner...............14
Article VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.......................14
Section 6.01 General Authority.......................................14
Section 6.02 General Duties..........................................14
Section 6.03 Action Upon Instruction.................................15
Section 6.04 No Duties Except as Specified in This Agreement or
in Instructions.........................................16
Section 6.05 No Action Except Under Specified Documents or
Instructions............................................16
Section 6.06 Restrictions............................................16
Section 6.07 Administration Agreement................................16
Article VII CONCERNING THE OWNER TRUSTEE................................17
Section 7.01 Acceptance of Trusts and Duties.........................17
Section 7.02 Furnishing of Documents.................................18
Section 7.03 Representations and Warranties..........................18
Section 7.04 Reliance; Advice of Counsel.............................19
Section 7.05 Not Acting in Individual Capacity.......................20
Section 7.06 Owner Trustee Not Liable for Notes, Equity Certificate
or Contracts............................................20
Section 7.07 Owner Trustee May Own Notes.............................20
Article VIII COMPENSATION OF OWNER TRUSTEE...............................20
Section 8.01 Owner Trustee's Fees and Expenses.......................20
Section 8.02 Indemnification.........................................21
Section 8.03 Non-recourse Obligations................................21
Article IX TERMINATION OF TRUST........................................22
Section 9.01 Termination of Trust....................................22
Section 9.02 Dissolution upon Bankruptcy of Trust Depositor..........23
Article X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES....................................................23
Section 10.01 Eligibility Requirements for Owner Trustee..............23
Section 10.02 Resignation or Removal of Owner Trustee.................23
Section 10.03 Successor Owner Trustee.................................24
Section 10.04 Merger or Consolidation of Owner Trustee................25
Section 10.05 Appointment of Co-Trustee or Separate Trustee...........25
Article XI MISCELLANEOUS...............................................26
Section 11.01 Supplements and Amendments..............................26
Section 11.02 Limitations on Rights of Others.........................27
Section 11.03 Notices.................................................27
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Section 11.04 Severability of Provisions..............................29
Section 11.05 Counterparts............................................29
Section 11.06 Successors and Assigns..................................29
Section 11.07 No Petition.............................................29
Section 11.08 No Recourse.............................................29
Section 11.09 Headings................................................30
Section 11.10 Governing Law...........................................30
Section 11.11 Certain Servicer Payment Obligations....................30
Section 11.12 JURISDICTION............................................30
Section 11.13 WAIVER OF JURY TRIAL....................................30
EXHIBITS
Exhibit A - Section 3.01 Certificate...................................A-1
Exhibit B - Form of Equity Certificate.................................B-1
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of February 1, 2001
is made by and between NCT Funding Company, L.L.C., a Delaware limited liability
company, as Trust Depositor (the "Trust Depositor"), and Allfirst Financial
Center National Association, as Owner Trustee.
Whereas, the parties hereto wish to amend and restate the Trust
Agreement dated as of January 31, 2001 (the "Original Trust Agreement").
Whereas, in connection herewith the Trust Depositor is willing to
assume certain obligations pursuant hereto, and
Whereas, in connection herewith the Trust Depositor is willing to
purchase the Equity Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree that the Original
Trust Agreement shall be amended and restated in its entirety as follows:
Article I
DEFINITIONS
Section 1.01 Defined Terms Generally. Capitalized terms used that are
not otherwise specifically defined herein shall have the same meaning given to
such terms when used in the Pooling Agreement (as defined in Section 1.02
below).
Section 1.02 Specific Defined Terms. Whenever used in this Agreement,
the following words and phrases, unless otherwise specified or the context
otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration Agreement, dated
as of the date hereof, among the Trust, the Trust Depositor, the Indenture
Trustee, the Owner Trustee, and CFUSA, as Administrator.
"Administrator" has the meaning given such term in the Administration
Agreement.
"Agreement" means this Amended and Restated Trust Agreement, as the
same may be amended, supplemented or restated from time to time.
"Benefit Plan" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
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.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions in the cities of Millsboro, Delaware,
Baltimore, Maryland, Livingston, New Jersey, or New York, New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from time to
time.
"Certificate of Trust" means the Certificate of Trust filed for the
Trust with the Secretary of State on January 31, 2001.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
"CFUSA" means CIT Financial USA, Inc., a Delaware corporation.
"Closing Date" means March 9, 2001.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Certificate" means the trust certificate evidencing the
beneficial equity interest of the Owner in the Trust and Trust Assets,
substantially in the form of Exhibit B hereto.
"Equity Certificateholder" means the Person in whose name the Equity
Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Foreign Person" means any Person other than (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity organized
in or under the laws of the United States or any political subdivision thereof,
(iii) an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or (iv) a trust whose administration is subject to the
primary supervision of a court within the United States and which has one or
more U.S. fiduciaries who have authority to control all substantial decisions of
the Trust.
"Holder" means a Noteholder or the Equity Certificateholder, as
applicable.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" means the Indenture dated as of the date of this Agreement
by and between the Trust and The Chase Manhattan Bank, as Indenture Trustee.
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"Indenture Trustee Corporate Trust Office" means the office of the
Indenture Trustee at which its corporate trust business shall be administered
which initially shall be 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000-0000.
"Note Depository Agreement" means the Agreement dated as of the
Closing Date among the Trust, the Indenture Trustee, the Administrator and DTC,
as the Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes, and the Class
D Notes in each case issued pursuant to the Indenture.
"Noteholders" means each Person in whose name a Note is registered in
the Note Register maintained by the Indenture Trustee.
"Owner" means the Equity Certificateholder.
"Owner Trustee" means Allfirst Financial Center National Association,
not in its individual capacity but solely as owner trustee under this Agreement,
and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the corporate trust
office of the Owner Trustee in the State of Delaware, which office initially
shall be located at 000 Xxxxxxxx Xxxx, Mail Code 101-591, Xxxxxxxxx, XX 00000 or
such other office at such other address in the State of Delaware as the Owner
Trustee may designate from time to time by notice to the Equity
Certificateholder, the Servicer, the Indenture Trustee and the Trust Depositor.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, limited liability company, joint stock company, trust
(including any beneficiary thereof) unincorporated organization or government or
any agency or political subdivision thereof.
"Pooling Agreement" means the Pooling and Servicing Agreement, dated
as of February 1, 2001, among the Trust, the Trust Depositor, and CFUSA, in its
individual capacity and as Servicer thereunder, as the same may be amended,
supplemented or restated from time to time.
"Required Holders" has the meaning given such term in the Pooling
Agreement.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust continued and governed by this Agreement, the
estate of which consists of the Trust Assets.
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"Trust Assets" means all right, title and interest of the Trust in and
to the property, proceeds and rights assigned to the Trust pursuant to Article
Two of the Pooling Agreement, all funds on deposit from time to time in the
Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C. in its capacity as
Trust Depositor hereunder, and its successors.
"Trust Estate" means all right, title and interest of the Trust in and
to the property, proceeds and rights assigned to the Trust pursuant to Article
Two of the Pooling Agreement, all funds on deposit from time to time in the
Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
Section 1.03 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing one gender include the other gender; 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
amendments, modifications and supplements thereto or any 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 term "including" means "including without limitation".
Section 1.04 Section References. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
Section 1.05 Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
Article II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01 Establishment of Trust; Name. The Trust shall be known as
"CIT Equipment Collateral 2001-1", in which name the Owner Trustee may conduct
the activities of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
Section 2.02 Office. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to the Noteholders
and the Trust Depositor.
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Section 2.03 Purposes and Powers.
(a) The sole purpose of the Trust is to manage the Trust Assets, and
collect and disburse the periodic income therefrom for the use and benefit of
the Equity Certificateholder, and in furtherance of such purpose to engage in
the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the
Equity Certificate pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes and the
Equity Certificate, to purchase the Contracts and other Trust Assets,
and to pay organizational, start-up and transactional expenses of the
Trust (to the extent not paid by the Trust Depositor or the Servicer
or Administrator); and to pay the balance to the Owner from time to
time pursuant to the Pooling Agreement;
(iii) to acquire, hold, manage, distribute, dispose of,
release or convey, to or at the direction of the Owner pursuant to the
Pooling Agreement, any portion of the Trust Assets in the manner
described in and pursuant to the Pooling Agreement;
(iv) to enter into, execute, deliver and perform its
obligations under the Transaction Documents to which it is or becomes
a party;
(v) to engage in those activities, including entering into,
executing, delivering, and performing agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required in connection
with conservation of the Trust Assets and the making of distributions
to the Owner and the Noteholders.
(b) The Owner Trustee is hereby authorized to engage in the foregoing
activities on behalf of the Trust. The Trust shall not engage in any activities
other than in connection with the foregoing. Nothing contained herein shall be
deemed to authorize the Owner Trustee to engage in any business operations or
any activities other than those set forth in this Section 2.03. Specifically,
the Owner Trustee shall have no authority to engage in any business operations,
or acquire any assets other than those specifically included in the Trust
Assets, or otherwise vary the assets held by the Trust. Similarly, the Owner
Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in this Section 2.03.
Section 2.04 Appointment of Owner Trustee. The Trust Depositor
appointed the Owner Trustee as trustee of the Trust effective as of the date of
the Original Trust Agreement, and as of the date hereof the Owner Trustee shall
have all the rights, powers and duties set forth herein and in the Business
Trust Statute, and the Owner Trustee hereby accepts such appointment.
5
Section 2.05 Organizational Expenses. The Trust Depositor shall pay or
provide for the payment of organizational expenses of the Trust as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse or
provide for the reimbursement of the Owner Trustee for any such expenses paid by
the Owner Trustee.
Section 2.06 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Assets in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Assets and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Owner, subject to the obligations of the Trust under the Transaction
Documents. It is the intention 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. 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 for the sole purpose and to the
extent necessary to accomplish the purposes of this Trust as set forth in
Section 2.03.
Section 2.07 Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the
Trust Depositor as Owner shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the Owner
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general partner;
provided, however, that the Owner shall not be liable for any losses incurred by
the Equity Certificateholder in the capacity of an investor in the Equity
Certificate or a Noteholder in the capacity of an investor in the Notes; and
provided further, that the Owner shall not be so liable to any injured party or
other creditor if such party has agreed that its recourse against the Trust for
any obligation or liability of the Trust to such party shall be limited to the
assets of the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the immediately preceding
sentence for which the Owner shall not be liable) shall be deemed third party
beneficiaries of this paragraph.
(b) No Equity Certificateholder, other than to the extent set forth in
Section 2.07(a), shall have any personal liability for any liability or
obligation of the Trust or by reason of any action taken by the parties to this
Agreement pursuant to any provisions of this Agreement or any other Transaction
Document.
Section 2.08 Title to Trust Property. Legal title to the Trust Assets
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
Assets to be vested in an owner trustee or owner 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.
Section 2.09 Situs of Trust. The Trust will be located and
administered in the State of Delaware, the State of New York or the State of
Maryland. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Maryland or the State of Delaware. The
6
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, the Trust Depositor, the Administrator 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, New York or Maryland and payments will
be made by the Trust only from Delaware, New York or Maryland. The only office
of the Trust will be at the Owner Trustee Corporate Trust Office.
Section 2.10 Representations and Warranties of the Trust Depositor.
The Trust Depositor hereby represents and warrants to the Owner
Trustee, that:
(i) The Trust Depositor is duly organized and validly existing as
a limited liability company organized and existing, and in good standing, under
the laws of the State of Delaware, with power and authority to own its
properties and to conduct its business and had at all relevant times, and has,
power, authority and legal right to acquire and own the assets conveyed and to
be conveyed by it to the Trust from time to time.
(ii) The Trust Depositor is duly qualified to do business as a
foreign limited liability company 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 requires such qualifications.
(iii) The Trust Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Trust Depositor has
full power and authority to sell and assign the property to be sold and assigned
from time to time to and deposited with the Owner Trustee on behalf of the Trust
as part of the Trust Assets and has or will have duly authorized such sale and
assignment and deposit with the Owner Trustee on behalf of the Trust by all
necessary entity action; the execution, delivery and performance of this
Agreement have been duly authorized by the Trust Depositor by all necessary
entity action; and this Agreement constitutes the legal, valid and binding
obligation of the Trust Depositor, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(iv) 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, nor constitute (with or
without notice or lapse of time) a default under, the certificate of formation
or limited liability company agreement of the Trust Depositor, or any indenture,
agreement or other instrument to which the Trust Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any
of the properties of the Trust Depositor pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Transaction
Documents); nor violate any law or any order, rule or regulation applicable to
the Trust Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Trust Depositor or its properties.
7
(v) All approvals, authorizations, consents, orders or other
actions of any Person or any governmental entity required in connection with the
execution and delivery of this Agreement and the fulfillment of the terms hereof
have been obtained.
(vi) There are no proceedings or investigations pending, or to
the Trust Depositor's knowledge threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Trust Depositor or its properties: (A) asserting the invalidity of this
Agreement or any of the other Transaction Documents, (B) seeking to prevent the
issuance of the Equity Certificate or the consummation of any of the
transactions contemplated by this Agreement or the other Transaction Documents,
(C) seeking any determination or ruling that might materially and adversely
affect the performance by the Trust Depositor of its obligations under, or the
validity or enforceability of, this Agreement, the Equity Certificate or any
other Transaction Document, or (D) involving the Trust Depositor and which might
adversely affect the federal income tax or other federal, state or local tax
attributes of the Equity Certificate.
Section 2.11 Federal Income Tax Treatment. It is the intention of the
Trust Depositor that the Trust be disregarded as a separate entity for federal
income tax purposes pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The Equity
Certificate constitutes the sole equity interest in the Trust and must at all
times be held by either the Trust Depositor or its transferee as sole Owner. The
Trust Depositor agrees not to take any action inconsistent with such intended
federal income tax treatment. Because for federal income tax purposes the Trust
will be disregarded as a separate entity, Trust items of income, gain, loss and
deduction for any month as determined for federal income tax purposes shall be
allocated entirely to the Owner; provided, that this sentence shall not limit or
otherwise affect the provisions of the Transaction Documents pertaining to
distributions of Trust Assets or proceeds thereof to Persons other than the
Trust Depositor.
Article III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01 Initial Ownership.
(a) Upon the formation of the Trust and until the issuance of the
Equity Certificate, the Trust Depositor shall be the sole beneficiary of the
Trust. The Equity Certificate must at all times be held by either the Trust
Depositor or its transferee (to the extent permitted under Section 3.01(b)) as
sole owner.
(b) No transfer of the Equity Certificate shall be made unless such
transfer is made in a transaction which does not require registration or
qualification under the Securities Act or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the Certificate
Registrar shall effect the registration of any transfer of the Equity
Certificate unless, prior to such transfer the Owner Trustee shall have received
(i) a Tax Opinion, and (ii) a certificate from the proposed transferee
substantially in the form of Exhibit A hereto, certifying that (A) following
such transfer, there would be no more than one holder of the Equity Certificate
and the holder of the Equity Certificate would not be a Foreign Person, a
8
partnership, Subchapter S corporation or grantor trust and (B) such transfer
does not violate any state securities or Blue Sky laws or the Securities Act.
Section 3.02 The Equity Certificate.
(a) On the Closing Date, the Equity Certificate shall be issued to the
Trust Depositor, substantially in the form of Exhibit B hereto. Upon receipt of
a written order by the Owner Trustee from the Trust Depositor to execute and
authenticate the Equity Certificate, the Equity Certificate shall be executed by
the Owner Trustee on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee and, when so executed and authenticated
pursuant to Section 3.03, shall be deemed to have been validly issued and shall
be entitled to the benefits of this Agreement. The Equity Certificate bearing
the manual or facsimile signature of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Owner Trustee shall
be a valid and binding obligation of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificate or did not hold such offices at
the date of the authentication and delivery of the Equity Certificate. The
Equity Certificate shall be dated the date of its authentication.
Section 3.03 Authentication and Delivery of Equity Certificate. The
Equity Certificate shall not entitle its holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such Equity
Certificate a certificate of authentication substantially in the form set forth
in Exhibit B executed by the Owner Trustee or by the Indenture Trustee as its
authenticating agent, by manual or facsimile signature; such authentication
shall constitute conclusive evidence that the Equity Certificate shall have been
duly authenticated and delivered hereunder.
Section 3.04 Registration of Transfer and Exchange of the Equity
Certificate.
(a) The Certificate Registrar shall maintain or cause to be
maintained, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, it shall provide for the registration of the Equity Certificate and
of transfers and exchanges of the Equity Certificate as provided in this
Agreement. The Indenture Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Equity Certificate and transfers
and exchanges of the Equity Certificate as provided in this Agreement. In the
event that the Indenture Trustee notifies the Servicer that it is unable to act
as Certificate Registrar, the Servicer shall appoint another bank or trust
company agreeing to act in accordance with the provisions of this Agreement
applicable to it, and otherwise acceptable to the Owner Trustee, to act as
successor Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of the Equity
Certificate otherwise permitted to be transferred in accordance herewith at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
(subject to Section 3.01(b)) execute, authenticate and deliver (or shall cause
its authenticating agent to authenticate and deliver), in the name of the
designated transferee, one new Equity Certificate.
9
(c) Every Equity Certificate presented or surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of transfer
or exchange of the Equity Certificate, but the 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 of the
Equity Certificate.
(e) All Equity Certificates surrendered for registration of transfer
or exchange shall be canceled and subsequently destroyed by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(f) The Indenture Trustee shall be the Paying Agent for the Equity
Certificate.
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity
Certificate. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Equity Certificate, and (b) there is
delivered to the Certificate Registrar and the 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 Equity Certificate has been acquired by a bona fide
or protected purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee or its authenticating agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Equity Certificate, a replacement Equity Certificate of like tenor. In
connection with the issuance of any replacement Equity Certificate under this
Section, the 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 relation thereto and any other expenses (including the reasonable fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith. Any replacement Equity Certificate issued pursuant to this Section
shall constitute conclusive evidence of beneficial ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Equity
Certificate shall be found at any time.
Section 3.06 Persons Deemed Owners. Prior to due presentation of an
Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name the Equity Certificate is registered as the owner of the Equity
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any of their respective agents shall be affected by any
notice of the contrary.
Section 3.07 Access to List of Equity Certificateholder's Name and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Indenture Trustee and the Trust Depositor within 15 days after
receipt by the Owner Trustee of a written request therefor from the Servicer,
the Indenture Trustee or the Trust Depositor, the name and address of the Equity
Certificateholder as of the most recent Record Date in such form as the
Servicer, the Indenture Trustee or the Trust Depositor may reasonably require.
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The Equity Certificateholder, by receiving and holding the Equity Certificate,
agrees that neither the Servicer, the Trust Depositor nor the Owner Trustee, nor
any agent thereof, shall be held accountable by reason of the disclosure of any
such information as to the name and address of the Equity Certificateholder
hereunder, regardless of the source from which such information was derived.
Section 3.08 Maintenance of Office or Agency. The Owner Trustee shall
maintain an office or offices or agency or agencies where an Equity Certificate
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Owner Trustee in respect of the Equity Certificate
and any Transaction Documents may be served. The Owner Trustee initially
designates the Indenture Trustee Corporate Trust Office as its office for such
purposes. The Owner Trustee shall give prompt written notice to the Trust
Depositor, the Servicer, the Administrator and the Equity Certificateholder of
any change in the location of the Certificate Register or any such office or
agency.
Section 3.09 Ownership by Trust Depositor of Equity Certificate. The
Trust Depositor shall on the Closing Date purchase from the Trust the Equity
Certificate.
Article IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Equity Certificateholder with Respect to
Certain Matters. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Equity Certificateholder in writing of the proposed action, and the
Equity Certificateholder shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Equity
Certificateholder has withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of Trust
Assets) and the compromise of any material action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of Trust Assets);
(b) 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);
(c) the amendment of the Indenture by a supplemental indenture or the
Cash Collateral Account Agreement or Class A-4 Swap Agreement in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture or the
Cash Collateral Account Agreement or Class A-4 Swap Agreement in circumstances
where the consent of any Noteholder is not required and such amendment
materially and adversely affects the interest of the Owner;
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(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially and adversely affect
the interest of the Owner; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.02 Action by Owner with Respect to Certain Matters. Subject
to the provisions and limitations of Section 4.04, the Owner Trustee shall not
have the power, except upon the direction of the Owner, to (a) remove the
Administrator pursuant to Section 8 of the Administration Agreement, (b) appoint
a successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Servicer pursuant to Article VIII of the Pooling Agreement, (d)
except as otherwise expressly provided in the relevant Transaction Documents,
release or convey from the Trust any Trust Assets, (e) initiate any claim, suit
or proceeding by the Trust or compromise any claim, suit or proceeding brought
by or against the Trust, (f) authorize the merger or consolidation of the Trust
with or into any other business trust or entity (other than in accordance with
applicable restrictions or conditions thereon contained in the relevant
Transaction Document) or (g) amend the Certificate of Trust (unless such
amendment is required to be filed under the Business Trust Statute). Except to
the extent otherwise provided in (d), (f) and (g) above, the Owner Trustee shall
take the actions referred to in the preceding sentence upon (and only upon)
written instructions signed by the Owner.
Section 4.03 Action by Owner with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is no longer Solvent.
Section 4.04 Restrictions on Owner's Power. Neither the Administrator
nor the Owner shall direct the Owner Trustee to take or to refrain from taking
any action if such action or inaction would be contrary to any obligation of the
Trust or the Owner Trustee under this Agreement or any of the other Transaction
Documents, or would be contrary to the purpose of this Trust as set forth in
Section 2.03, nor shall the Owner Trustee be obligated to follow any such
direction, if given, or to determine whether any such direction violates this
Section 4.04.
Article V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 [Reserved].
Section 5.02 [Reserved].
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Section 5.03 Reports. On each Payment Date, the Owner Trustee shall
send or cause to be sent to the Equity Certificateholder the statement or
statements received by the Owner Trustee from the Servicer pursuant to Section
9.01 of the Pooling Agreement with respect to such Payment Date.
Section 5.04 Taxes. In the event that any withholding tax is imposed
on the Trust's payment (or allocation of income) to the Equity
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Equity Certificateholder in accordance with this Section. The Owner Trustee
is hereby authorized and directed to retain from amounts otherwise distributable
to the Equity Certificateholder sufficient funds for the payment of any tax that
is legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee 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 the
Equity Certificateholder shall be treated as cash distributed to such Equity
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section. In the event
that the Equity Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the Equity
Certificateholder in making such claim so long as the Equity Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
Section 5.05 Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the Equity Certificateholder on any Payment
Date shall be made to the Equity Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
the Equity Certificateholder at a bank or other entity having appropriate
facilities therefor, which the Equity Certificateholder shall have designated to
the Certificate Registrar, with appropriate written wire transfer instructions,
at least three Business Days prior to such Payment Date. In the absence of such
designation, such distributions shall be made by check mailed to the Equity
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.06 No Segregation of Moneys; No Interest. Moneys received by
the Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law, and may be deposited under such general conditions as
may be prescribed by law, and the Owner Trustee shall not be liable for any
interest thereon.
Section 5.07 Accounting and Reports to the Equity Certificateholder,
the Internal Revenue Service and Others. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis and
the accrual method of accounting, (b) deliver or cause to be delivered to the
Equity Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Form 1099 or
Schedule K-1) to enable the Equity Certificateholder to prepare its federal and
state income tax returns, (c) file or cause to be filed such tax returns
relating to the Trust and make such elections as from time to time may be
required or appropriate under any applicable state or federal statute or any
rule or regulation thereunder so as to maintain the federal income tax treatment
for the Trust as set forth in Section 2.11, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
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any withholding tax as described in and in accordance with Section 5.04 with
respect to income or distributions to the Equity Certificateholder. The Trust
shall elect under Section 1278 of the Code to include in income currently any
market discount that accrues with respect to Contracts becoming part of the
Contract Pool. If applicable, the Trust shall not make the election provided
under Section 754 or Section 761 of the Code.
Section 5.08 Signature on Returns; Tax Matters Partner.
(a) The Owner shall sign on behalf of the Trust the tax returns of the
Trust, if any.
(b) If Subchapter K of the Code should be applicable to the Trust, the
Owner shall be designated the "tax matters partner" of the Trust pursuant to
Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations.
Article VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust from time to time the
Transaction Documents to which the Trust is or becomes a party and each
certificate and other document attached as an exhibit to or contemplated by such
Transaction Documents and any amendment or other agreement relating thereto (in
each case, in such form as is furnished to the Owner Trustee from time to time
by or on behalf of the Trust Depositor or Equity Certificateholder or their
respective counsel), as evidenced conclusively by the Owner Trustee's execution
thereof. 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 Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator directs or recommends in writing
with respect to the Transaction Documents.
Section 6.02 General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged through the Administrator or such other
agents as shall be appointed) all of its responsibilities pursuant to the terms
of this Agreement and the Transaction Documents to which the Trust is a party
and to administer the Trust in the interest of the Equity Certificateholder,
subject to the Transaction 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 other
Transaction 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 or the Trust hereunder or under any such Transaction Document, and
the Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
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Section 6.03 Action Upon Instruction.
(a) Subject to Article IV, and in all events subject to the terms of
the applicable Transaction Documents, the Equity Certificateholder may by
written instruction direct the Owner Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other applicable Transaction 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 under
any other Transaction Document, the Owner Trustee shall promptly give notice (in
such form as it deems appropriate under the circumstances) to the Equity
Certificateholder 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 Equity Certificateholder, the
Owner Trustee shall not be liable on account of such action to any Person. Until
the Owner Trustee shall have received the requested instruction it may, but
shall be under no duty to, take or refrain from taking such action, as it shall
deem to be in the best interests of the Equity Certificateholder, 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
applicability of any provision of this Agreement or any other Transaction
Document or believes 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 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 it deems appropriate under the circumstances)
to the Equity Certificateholder 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 Equity Certificateholder, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. Until the Owner Trustee shall have received the requested instruction it
may, but shall be under no duty to, take or refrain from taking such action, as
it shall deem to be in the best interests of the Equity Certificateholder, and
shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware being payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee
15
contemplated in this Agreement. In the event that the Owner Trustee has
determined that any action will result in the consequences set forth in clauses
(i)-(iii), the Administrator and the Owner Trustee shall appoint one or more
Persons to act as co-trustee pursuant to Section 11.05.
Section 6.04 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 Assets, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement (including Section 6.02) or any document or written
instruction received by the Owner Trustee pursuant to Article IV or Section
6.03; and no implied duties or obligations shall be read into this Agreement or
any other Transaction Document against the Owner Trustee. The 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 securities law filing for the Trust or to record this
Agreement or any other Transaction Document. The 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 Trust Assets that
result from actions by, or claims against, the Owner Trustee, in its individual
capacity, that are not related to the ownership or the administration of the
Trust Assets or the transactions contemplated by the Transaction Documents.
Section 6.05 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 Assets 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 Transaction Documents,
or (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Article IV or Section 6.03.
Section 6.06 Restrictions. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (ii) that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, would result in the Trust's becoming taxable as a corporation for
federal or state income tax purposes. Neither the Administrator nor the Equity
Certificateholder shall direct the Owner Trustee to take actions that would
violate the provisions of this Section or any Transaction Document.
Section 6.07 Administration Agreement.
(a) The Administrator is authorized to execute on behalf of the Trust
all documents, reports, filings, instruments and opinions as it shall be the
duty of the Trust to prepare, file or deliver pursuant to the Transaction
Documents. Pursuant to the Administration Agreement, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator as agent and attorney-in-fact of the Trust and the Owner Trustee
to execute all such documents, reports, filings, instruments and opinions.
(b) If the Administrator shall resign or be removed pursuant to the
terms of the Administration Agreement, the Owner Trustee may, at the written
16
direction of the Required Holders, 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, at the written direction of the
Equity Certificateholder, 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 Equity
Certificateholder 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 of the Owner Trustee has actual knowledge.
Article VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trust hereby created and agrees to perform its duties hereunder with
respect to such trust but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Assets upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any other Transaction Document under any circumstances, except that the
foregoing limitation shall not limit the liability, if any, that the Owner
Trustee may have to the Equity Certificateholder (i) for the Owner Trustee's own
willful misconduct or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly made by the Owner
Trustee in its individual capacity, (iii) for liabilities arising from the
failure of the Owner Trustee to perform obligations expressly undertaken by it
in the last sentence of Section 6.04 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 Transaction
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 which did not
result from negligence on the part of such Responsible Officer;
(b) the 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 the
Administrator or the Equity Certificateholder;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
17
financial liability in the performance of any of its rights or powers hereunder
or under any other Transaction 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 any of the Transaction Documents,
including the principal of and interest on the Notes;
(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 Trust Depositor or for the form, character, genuineness, sufficiency, value
or validity of any of the Trust Assets, or for or in respect of the validity or
sufficiency of any Transaction Documents, other than its signature on behalf of
the Trust on, and the certificate of authentication on, the Equity Certificate,
and the Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or, other than as expressly provided for herein, to
the Equity Certificateholder;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee or
the Servicer under any of the Transaction Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform or monitor the
performance of the obligations of the Trust under this Agreement or the other
Transaction Documents that are required to be performed by the Administrator
under this Agreement or the Administration Agreement, by the Indenture Trustee
under this Agreement or the Indenture or by the Servicer or the Trust Depositor
under any Transaction Document; 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 other Transaction Document, at the request, order or direction
of the Equity Certificateholder, unless the Equity Certificateholder has offered
to the Owner Trustee security or indemnity 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 Transaction Document shall not be
construed as a duty, and, except as otherwise provided in the third sentence of
Section 7.01, the Owner Trustee shall not be answerable for the performance of
any such act.
Section 7.02 Furnishing of Documents. The Owner Trustee shall furnish
to the Equity Certificateholder promptly upon receipt of a written request
therefor from an Equity Certificateholder, duplicates or copies of all reports,
notices, requests, demands, financial statements and any other instruments
furnished to the Owner Trustee under the Transaction Documents.
Section 7.03 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Trust Depositor and the Equity Certificateholder
that:
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(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to execute and deliver on behalf of the
Trust each other Transaction Document to which the Trust is a party ("Related
Documents").
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and, on behalf of the Trust, the
Related Documents, and this Agreement and each Related Document will be executed
and delivered by one of its officers who is duly authorized to execute and
deliver the same on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement or,
on behalf of the Trust, any Related Document, 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 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
documents or bylaws 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 Assets resulting from actions by or claims against the Owner Trustee
individually which are unrelated to this Agreement or the other Transaction
Documents.
Section 7.04 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 reasonably
believed by it to be genuine and believed by it 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 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 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 any other authorized officer 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 other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into by any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys as 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, provided that such actions do not violate the express
terms of the Transaction Documents.
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Section 7.05 Not Acting in Individual Capacity. Except as otherwise
expressly provided in this Article VII, in accepting the trusts hereby created,
Allfirst Financial Center National Association 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 Transaction Document shall look only to the Trust Assets
for payment or satisfaction thereof.
Section 7.06 Owner Trustee Not Liable for Notes, Equity Certificate or
Contracts. The recitals contained herein and in the Equity Certificate (other
than the signature of the Owner Trustee on behalf of the Trust on, and the
certificate of authentication on, the Equity Certificate) shall be taken as the
statements of the Trust Depositor, 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, any other
Transaction Document or the Equity Certificate (other than the signature of the
Owner Trustee and the certificate of authentication on the Equity Certificates),
or of any Contract or related documents or assets. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any related Equipment or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Assets or the ability of such Trust Assets to generate
the payments to be distributed to the Equity Certificateholder under this
Agreement or the Noteholders under the Indenture, including, without limitation,
the existence, condition and ownership of any Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Contract or any computer or other record thereof; the validity of the assignment
of any Contract to the Trust or of any intervening assignment; the completeness
of any Contract; the performance or enforcement of any Contract; the compliance
by the Trust Depositor, CFUSA, applicable Financing Originator or the Servicer
with any warranty or representation made under any Transaction Document or in
any related document or the accuracy of any such warranty or representation; or
any action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee or the Trust.
Section 7.07 Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes or the
Equity Certificate and may deal with the Trust Depositor, the Administrator, the
Indenture Trustee, Servicer and Affiliates thereof in banking transactions with
the same rights as it would have if it were not Owner Trustee.
Article VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 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 between the Owner Trustee and the Servicer and which
shall be paid consistent with Section 5.19 of the Pooling Agreement.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust
20
Depositor or Servicer 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 (i) are fees
and expenses of outside counsel engaged by the Owner Trustee in respect of the
performance of its obligations hereunder, or (ii) relate to the performance of
its obligations hereunder.
Section 8.02 Indemnification. The Trust Depositor shall be liable as
primary obligor for, and hereby indemnifies and holds harmless the Owner Trustee
(including in its individual capacity) and its successors, assigns 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
the Owner Trustee or any other Indemnified Party in any way relating to or
arising out of this Agreement, any other Transaction Document, the Trust Assets,
the administration of the Trust Assets or the action or inaction of the Owner
Trustee hereunder; provided, however, the Trust Depositor shall not be liable
for or required to indemnify an Indemnified Party from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.01; provided, further, that the liability of the Trust Depositor under
this Section shall be limited to the assets of the Trust Depositor and any
indemnity payments to be made pursuant to this Section shall not be made from
the Trust Assets and such indemnity payments, if unpaid, do not constitute a
general recourse claim against the Trust. The indemnities contained in this
Section shall survive the resignation, removal or termination of the Owner
Trustee or the termination of this Agreement or the Trust. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Trust Depositor, which approval shall not be unreasonably
withheld. The indemnities contained in this Section shall be in addition to the
indemnities provided by the Servicer pursuant to the Pooling Agreement and the
Administrator pursuant to the Administration Agreement. The Trust Depositor
hereby agrees to advance to each Indemnified Party Expenses (including
reasonable fees and expenses of counsel) incurred by such Indemnified Party, in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Trust Depositor of an undertaking, by or on behalf of such Indemnified
Party, to repay such amount if it shall be determined that such Indemnified
Party is not entitled to be indemnified therefor under this Section 8.02.
Notwithstanding any provision in this Agreement or any other Transaction
Document to the contrary, the obligations of the Trust Depositor under this
Section 8.02 shall survive the resignation or removal of any trustee of the
Trust, shall survive the termination of this Agreement and the termination of
the Trust.
Section 8.03 Non-recourse Obligations. Notwithstanding anything in
this Agreement or any other Transaction Document, but without limiting the
rights of the Owner Trustee or any other Indemnified Party under Section 8.02,
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
Assets only and specifically shall not be recourse to the assets of the Equity
Certificateholder.
21
Article IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust.
(a) The Trust created by this Agreement shall dissolve upon the
earliest of (i) the maturity or other liquidation of the last Contract and
related Transferred Assets, and the subsequent distribution of amounts in
respect of such Transferred Assets as provided in the Transaction Documents, or
(ii) the payment to the Noteholders and any other party entitled thereto of the
entire outstanding principal balance of the Notes, together with accrued
interest thereon to the date of repayment, and all other amounts required to be
paid to such parties or to which such parties are entitled pursuant to this
Agreement, the Pooling Agreement and the other Transaction Documents, or (iii)
at the time provided in Section 9.02 below; provided that the rights to
indemnification under Section 8.02 shall survive the dissolution and termination
of the Trust. The Servicer shall promptly notify the Owner Trustee and the
Administrative Agent of any prospective dissolution pursuant to this Section
9.01. Except as provided in Section 9.02, the bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of the Equity Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Equity 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 the
Trust or Trust Assets, nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust Depositor
nor the Equity Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) Promptly upon receipt of notice of final distribution on the
Equity Certificate from the Servicer given pursuant to Section 10.01 of the
Pooling Agreement, the Owner Trustee shall mail written notice to the Equity
Certificateholder specifying (i) the Payment Date upon which final payment of
the Equity Certificate shall be made upon presentation and surrender of Equity
Certificate at the office of the Owner Trustee as therein specified, (ii) the
amount of any such final payment, and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only upon
presentation and surrender of the Equity Certificate at the office of the Owner
Trustee therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Equity Certificateholder. Upon presentation and
surrender of the Equity Certificate to the Owner Trustee, the Owner Trustee
shall direct the Indenture Trustee to distribute to the Equity Certificateholder
amounts distributable on such Payment Date.
(d) In the event that the Equity Certificateholder shall not surrender
the Equity Certificate for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the Equity Certificateholder to surrender the Equity
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice the Equity Certificate shall
not have been surrendered for cancellation, the Owner Trustee may take
22
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the Equity Certificateholder concerning surrender of the Equity Certificate, and
the cost thereof shall be paid out of the funds and other assets that remain
subject to this Agreement. Any funds which are payable to the Equity
Certificateholder remaining in the Trust after exhaustion of such remedies shall
be distributed by the Owner Trustee to the Trust Depositor.
(e) Upon the completion of winding up of the Trust following its
dissolution, 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,
and upon the effectiveness thereof, this Agreement and the Trust shall be
terminated.
Section 9.02 Dissolution upon Bankruptcy of Trust Depositor. In the
event that an Insolvency Event shall occur with respect to the Trust Depositor,
then this Agreement shall be terminated in accordance with Section 9.01 90 days
after the date of such event, unless within such 90 day period, the Owner
Trustee shall have received written instructions from the Required Holders not
to dissolve or terminate the Trust. Promptly after the occurrence of an
Insolvency Event with respect to the Trust Depositor (i) the Trust Depositor
shall give the Indenture Trustee and Owner Trustee written notice thereof, and
the Indenture Trustee shall give prompt written notice to the Noteholders
thereof. Upon a termination pursuant to this Section, the Issuer shall request
the Administrator promptly to sell the Trust Assets in a commercially reasonable
manner and on commercially reasonable terms. The proceeds of such a sale shall
be treated, allocated and distributed as Available Pledged Revenues in
accordance with the Pooling Agreement.
Article X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a Person (i) satisfying the provisions of Section
3807(a) of the Business Trust Statute; (ii) authorized to exercise corporate
trust powers and subject to supervision or examination by federal or state
authorities; (iii) having (or having a parent which has) a combined capital and
surplus of at least $50,000,000; (iv) having (or having a parent which has) a
rating of at least Baa3 by Moody's and BBB by Standard & Poor's; (v) which is
not an Affiliate of the Issuer, the Trust Depositor, or any Financing
Originator, and (vi) does not offer or provide credit or credit enhancement to
the Issuer or the Trust Depositor. 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 in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.
Section 10.02 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 Trust Depositor and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
23
Owner Trustee meeting the qualifications set forth in Section 10.01 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 10.01 and shall fail to resign after
written request therefor by the Administrator 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 Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Trust Depositor shall promptly
appoint a successor Owner Trustee meeting the qualification requirements of
Section 10.01 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 together with 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 10.03.
Section 10.03 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Trust Depositor 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 receipt of fees, expenses and indemnity
due and owing to the Owner Trustee deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Trust Depositor 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.
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 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to the Equity
Certificateholder, the Indenture Trustee, the Noteholders and each Rating
24
Agency. If the 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 the Trust
Depositor.
Any successor Owner Trustee appointed pursuant to this Section 10.03
shall file an amendment to the Certificate of Trust with the Delaware Secretary
of State identifying the name and principal place of business of such successor
in the State of Delaware.
Section 10.04 Merger or Consolidation of Owner Trustee. Any Person
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
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 Person shall be eligible pursuant to Section 11.01, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto. Notwithstanding anything contained herein to the contrary, the successor
Owner Trustee under this Section 10.04 shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State identifying the name
and principal place of business of such successor in the State of Delaware.
Section 10.05 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 Assets may at the time be located, the Owner Trustee shall have the
power and, at the request of the Trust Depositor, 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 Assets, and to vest in such Person, in
such capacity, such title to the Trust Assets, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Owner Trustee may consider necessary or desirable. 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 10.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.01.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) 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 unqualified to perform
such act or acts, in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust Assets 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;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
25
(c) the Owner Trustee 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.
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 XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments.
(a) This Agreement may be amended by the Trust Depositor and the Owner
Trustee, without the consent of any of the Noteholders or the Equity
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; provided, however, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Noteholder or the Equity Certificateholder.
(b) This Agreement may also be amended from time to time by the Trust
Depositor and the Owner Trustee, with the consent of the Required Holders and
the Equity Certificateholder, 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 Equity
Certificateholder; provided, however, that no such amendment shall increase or
reduce in any manner the amount of, or accelerate or delay the timing of, (i)
collections of payments on Contracts or distributions that shall be required to
be made for the benefit of the Noteholders or the Equity Certificateholder, or
(ii) change in any manner the Noteholder or Equity Certificateholder consent
required for any such amendment, without the consent of the Holders of all
outstanding Notes and the Equity Certificates.
26
(c) Prior to the execution of any such amendment or consent, the Trust
Depositor shall furnish written notification of the substance of such amendment
or consent, together with a copy thereof, to the Indenture Trustee and the
Administrator.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Equity Certificateholder and the Rating Agencies. It
shall not be necessary for the consent of the Equity Certificateholder,
Noteholders or the 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 shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of the Equity Certificateholder provided
for in this Agreement or in any other Transaction Document) and of evidencing
the authorization of the execution thereof by the Equity Certificateholder shall
be subject to such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment or supplement to this
Agreement or the Certificate of Trust, 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 the other Transaction
Documents, and that all conditions precedent to the execution and delivery of
such amendment as set forth in the applicable Transaction Documents have been
satisfied. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment that affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 11.02 Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Trust Depositor, the Owner, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee, the Noteholders and the Equity
Certificateholder, and nothing in this Agreement (other than Section 2.07),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Assets or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
Section 11.03 Notices. All notices, demands, Equity Certificate,
requests and communications hereunder ("notices") shall be in writing and shall
be effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an authorized officer of the party to which sent, or (d)
on the date transmitted by legible telefax transmission with a confirmation of
receipt, in all cases addressed to the recipient as follows:
27
(i) If to the initial Servicer/Administrator:
CIT Financial USA, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
c/o The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(iii) If to the Owner Trustee:
Allfirst Financial Center National Association
000 Xxxxxxxx Xxxx
Mail Code 101-591
Xxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
CITEC 2001-1
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(iv) If to the Indenture Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Institutional Trust Services
CITEC 2001-1
Fax No.: (000) 000-0000/8302
Telephone No.: (000) 000-0000
28
Each party hereto may, by notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11.04 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 the Equity
Certificate or the rights of the Equity Certificateholder thereof.
Section 11.05 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.06 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Trust Depositor, and the Owner Trustee and their respective successors and
permitted assigns and the Owner and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Owner shall bind the successors and assigns of such
Owner.
Section 11.07 No Petition.
(a) The Trust Depositor will not at any time institute against (or
solicit or cooperate with or encourage any Person to institute against) the
Trust any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Equity Certificate, the Notes, this Agreement or any of the other Transaction
Documents existing from time to time.
(b) The Owner Trustee, by entering into this Agreement, and the Equity
Certificateholder, by accepting the Equity Certificate, and the Indenture
Trustee and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against (or solicit
or cooperate with or encourage any Person to institute against) the Trust
Depositor or the Trust, or join in any institution against the Trust Depositor
or the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Equity Certificate, the Notes, this Agreement or any of the other
Transaction Documents existing from time to time.
Section 11.08 No Recourse. The Equity Certificateholder by accepting
the Equity Certificate acknowledges that the Equity Certificateholder's Equity
Certificate represents beneficial interests in the Trust only and does not
represent interests in or obligations of the Trust Depositor, the Servicer, any
Financing Originator, the Administrator, the Owner Trustee, the Indenture
Trustee or any of their respective Affiliates 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 Equity Certificate or the other applicable
Transaction Documents.
29
Section 11.09 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 11.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 11.11 Certain Servicer Payment Obligations. It is understood
that the Servicer shall be responsible for payment of the Administrator's
compensation pursuant to Section 3 of the Administration Agreement and shall
reimburse the Administrator for all expenses and liabilities of the
Administrator incurred thereunder, consistent with the provisions of Section
5.19 of the Pooling Agreement. The parties hereto agree that any such payments,
if unpaid, do not constitute a general recourse claim against the Trust or the
Trust Assets.
Section 11.12 JURISDICTION. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO
REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION
INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.
Section 11.13 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF
OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND
RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
[signature page follows]
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ALLFIRST FINANCIAL CENTER NATIONAL
ASSOCIATION, as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
31
EXHIBIT A
Section 3.01 Certificate
The undersigned, a duly authorized officer of [------------], hereby
certifies, in connection with its purchase of the Equity Certificate, that:
(A) following such acquisition, there is no more than one holder of
the Equity Certificate and it is not a Foreign Person, a partnership, Subchapter
S Corporation or grantor trust; and
(B) such acquisition does not violate any state securities laws or
Blue Sky laws or the Securities Act.
[Transferee]
By:
-------------------------
Name:
Title:
A-1
EXHIBIT B
Form of Equity Certificate
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO NOTES TO THE EXTENT
DESCRIBED IN THE TRUST AGREEMENT AND THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN NCT
FUNDING COMPANY, L.L.C., THE CIT GROUP, INC., CIT FINANCIAL USA, INC. OR ANY
AFFILIATE THEREOF, OTHER THAN THE CIT EQUIPMENT COLLATERAL 2001-1. THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED UNLESS THE
CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN COMPLIED
WITH.
THIS CERTIFICATE IS TRANSFERABLE ONLY IN WHOLE AND NOT IN PART.
THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM.
CIT EQUIPMENT COLLATERAL 2001-1
EQUITY CERTIFICATE
NO. 1 Equity Certificate
THIS CERTIFIES THAT NCT Funding Company, L.L.C. is the registered
owner of a beneficial interest in the CIT Equipment Collateral 2001-1 (the
"Trust") formed by NCT Funding Company, L.L.C., a Delaware limited liability
company (the "Trust Depositor").
The Trust is governed by an Amended and Restated Trust Agreement dated
as of February 1, 2001 (as amended, restated, supplemented and/or otherwise
modified from time to time, the "Trust Agreement"), between NCT Funding Company,
L.L.C., as Trust Depositor (the "Trust Depositor"), and Allfirst Financial
Center National Association, as Owner Trustee, a summary of certain of the
pertinent provisions of which is set forth below. In the event of any conflict
or inconsistency between this Certificate and the Trust Agreement (or the
Pooling Agreement, as the case may be), the Trust Agreement (or the Pooling
Agreement, as the case may be) shall govern. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings which would be given
to them if used in the Trust Agreement.
B-1
This Certificate is the duly authorized Equity Certificate 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
its acceptance hereof assents and by which such Holder is bound. The Trust has
also issued Notes, in right of payment to which this Equity Certificate is
subordinate. The property of the Trust includes, among other things, all the
right, title and interest of the Trust Depositor in and to the Transferred
Assets identified in one or more related Transfer Agreements delivered from time
to time on related Transfer Dates.
The amount to be distributed to the Holder of this Certificate on each
Payment Date will be determined pursuant to the Pooling Agreement.
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 Noteholders to the extent described in the Trust Agreement and the
Pooling Agreement.
It is the intent of each Financing Originator, the Servicer, the
Administrator, the Trust Depositor, the Owner Trustee, and the Equity
Certificateholder that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all items of income,
deduction, gain, loss or credit of the Trust will be treated as such items of
the Equity Certificateholder. The Trust Depositor and the Equity
Certificateholder, by acceptance of this Certificate, agrees to treat, and to
take no action inconsistent with such treatment of, the Trust for federal income
tax purposes.
The Equity Certificateholder, by its acceptance of this Certificate or
a beneficial interest in the Trust evidenced by this Certificate, covenants and
agrees that such Equity Certificateholder will not at any time institute against
(or solicit or cooperate with or encourage any Person to institute against) the
Trust or the Trust Depositor, or join in any institution against the Trust or
the Trust Depositor 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, the Trust Agreement or any of the other Transaction
Documents in existence from time to time.
Distributions on this Certificate from or in respect of Trust Assets
will be made as provided in the Trust Agreement and the Pooling Agreement, by
the Indenture Trustee or its agent by wire transfer or check mailed to the
Equity Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-2
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or any other Transaction Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND 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.
B-3
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an interest
in, the Trust Depositor, The CIT Group, Inc., CIT Financial USA, Inc., any
Financing Originator, the Owner Trustee, or any of their respective Affiliates
(other than the Trust) and no recourse may be had against such parties or their
assets, except as expressly set forth or contemplated herein or in the Trust
Agreement or the other Transaction Documents. In addition, this Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the Trust
Assets and certain other amounts, in each case as more specifically set forth in
the Trust Agreement and in the Pooling Agreement. A copy of each of the Pooling
Agreement and the Trust Agreement may be examined by any Equity
Certificateholder upon written request during normal business hours at the
principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Trust Depositor and the rights of the Equity Certificateholder under the Trust
Agreement at any time by the Trust Depositor and the Owner Trustee, with the
consent of the parties described therein. Any such consent shall be conclusive
and binding on the Equity Certificateholder and on all future Equity
Certificateholder of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar executed by the
Equity Certificateholder hereof or such Equity Certificateholder's attorney duly
authorized in writing, and thereupon a new Certificate evidencing the same
beneficial interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is the
Owner Trustee.
Except as provided in the Trust Agreement, this Certificate is
issuable only as a registered Equity Certificate without coupons. No service
charge will be made for any registration of transfer of this Certificate, but
the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
B-4
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to the Equity
Certificateholder of all amounts required to be paid to such Equity
Certificateholder pursuant to the Trust Agreement and the Pooling Agreement and
the disposition in accordance with any applicable Transaction Document of all
property held as part of the Trust Assets.
This Certificate may not be acquired by 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 acquiring
this Certificate for the account of such an entity.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
Dated: , 2001 CIT EQUIPMENT COLLATERAL 2001-1
--------- --
By: Allfirst Financial Center
National Association, not in its
individual capacity but solely as
Owner Trustee
By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the within-mentioned
Trust Agreement.
The Chase Manhattan Bank, as authenticating
agent
By:
-----------------------------------
Authorized Signatory
B-5
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
--------------------------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, will
full power of substitution in the premises.
Dated:
---------------------
Signature Guaranteed:
---------------------------------------- ------------------------------------
NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this
by an eligible guarantor assignment must correspond
institution. with the name of the registered
owner as it appears on the face of
the within Certificate in every
particular, without alteration or
enlargement or any change whatever.
B-6
