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TRUST AGREEMENT
between
ANTIGUA FUNDING CORPORATION
and
CITIBANK, N.A.
Owner Trustee
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Dated as of December 1, 1998
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NEWCOURT EQUIPMENT TRUST SECURITIES 1998-2
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................................1
Section 1.1. Definitions..........................................................................1
Section 1.2. Usage of Terms.......................................................................3
Section 1.3. Calculations.........................................................................3
Section 1.4. Section References...................................................................3
Section 1.5. Action by or Consent of Equity Certificateholder.....................................3
Section 1.6. No Recourse..........................................................................3
ARTICLE II CREATION OF TRUST...........................................................................4
Section 2.1. Creation of Trust....................................................................4
Section 2.2. Office...............................................................................4
Section 2.3. Purposes and Powers..................................................................4
Section 2.4. Trust May Consolidate or Merge Only on Certain Terms.................................5
Section 2.5. Appointment of Owner Trustee.........................................................5
Section 2.6. Initial Capital Contribution of Trust Estate.........................................5
Section 2.7. Declaration of Trust.................................................................5
Section 2.8. Liability of the Depositor...........................................................5
Section 2.9. Representations and Warranties of the Depositor......................................6
Section 2.10. Covenants of the Depositor...........................................................7
Section 2.11. Covenants of the Equity Certificateholder...........................................10
ARTICLE III THE EQUITY CERTIFICATE....................................................................11
Section 3.1. Initial Ownership...................................................................11
Section 3.2. The Equity Certificate; Authorized Denomination.....................................11
Section 3.3. Authentication of Equity Certificate................................................11
Section 3.4. Registration of Transfer and Exchange of Equity Certificate.........................11
Section 3.5. Mutilated, Destroyed, Lost or Stolen Equity Certificate.............................13
Section 3.6. Persons Deemed Owners...............................................................13
Section 3.7. Access to List of Equity Certificateholder's Name and Address.......................13
Section 3.8. Maintenance of Office or Agency.....................................................13
Section 3.9. Appointment of Paying Agent.........................................................13
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................................................14
Section 4.1. Restriction on Power of the Equity Certificateholder................................14
Section 4.2. Prior Notice to the Equity Certificateholder with Respect
to Certain Matters..................................................................14
Section 4.3. Action by the Owner Trustee with Respect to Bankruptcy..............................15
Section 4.4. Restrictions on Equity Certificateholder's Power....................................15
Section 4.5. Authority of the Depositor..........................................................15
Section 4.6. Income Tax Characterization.........................................................15
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ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................................................16
Section 5.1. Trust Accounts......................................................................16
Section 5.2. Application of Funds in the Equity Certificate Distribution Account.................17
Section 5.3. Method of Payment...................................................................18
Section 5.4. No Segregation of Monies; No Interest...............................................18
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................................................18
Section 6.1. General Authority...................................................................18
Section 6.2. General Duties......................................................................19
Section 6.3. Action upon Instruction.............................................................19
Section 6.4. No Duties Except as Specified in this Agreement, in
Related Documents or in Instructions................................................20
Section 6.5. No Action Except under Specified Documents or Instructions..........................20
Section 6.6. Restrictions........................................................................20
Section 6.7. Covenant of the Owner Trustee.......................................................20
ARTICLE VII CONCERNING THE OWNER TRUSTEE...............................................................21
Section 7.1. Acceptance of Trust and Duties......................................................21
Section 7.2. Furnishing of Documents.............................................................22
Section 7.3. Representations and Warranties......................................................22
Section 7.4. Reliance; Advice of Counsel.........................................................23
Section 7.5. Not Acting in Individual Capacity...................................................23
Section 7.6. Owner Trustee Not Liable for Equity Certificate, Notes or Contracts.................23
Section 7.7. Owner Trustee May Own Notes.........................................................24
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..............................................................24
Section 8.1. Owner Trustee's Fees and Expenses...................................................24
Section 8.2. Indemnification.....................................................................24
Section 8.3. Non-recourse Obligations............................................................25
ARTICLE IX TERMINATION................................................................................25
Section 9.1. Termination of the Trust............................................................25
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES............................................................................27
Section 10.1. Eligibility Requirements for Owner Trustee..........................................27
Section 10.2. Resignation or Removal of Owner Trustee.............................................27
Section 10.3. Successor Owner Trustee.............................................................28
Section 10.4. Merger or Consolidation of Owner Trustee............................................28
Section 10.5. Appointment of Co-Trustee or Separate Trustee.......................................28
ARTICLE XI MISCELLANEOUS PROVISIONS..................................................................30
Section 11.1. Amendment...........................................................................30
Section 11.2. GOVERNING LAW.......................................................................31
Section 11.3. Severability of Provisions..........................................................31
Section 11.4. Equity Certificate Nonassessable and Fully Paid.....................................31
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Section 11.5. Third-Party Beneficiaries...........................................................31
Section 11.6. Counterparts........................................................................31
Section 11.7. Notices.............................................................................32
Section 11.8. Tax Election........................................................................32
EXHIBITS
Exhibit A -- Form of Equity Certificate
Exhibit B -- Form of Representation Letter
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THIS TRUST AGREEMENT, dated as of December 1, 1998, is made
between Antigua Funding Corporation, a Delaware corporation (the "Depositor"),
and Citibank, N.A., a national banking association, as Owner Trustee (in such
capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained,
and of other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All terms defined in the Indenture
and the Transfer and Servicing Agreement (each as defined below) shall have the
same meaning in this Agreement. Whenever capitalized and used in this Agreement,
the following words and phrases, unless otherwise specified, shall have the
following meanings:
Act: The meaning assigned in Section 3.4(g).
Agreement or this Agreement: This Trust Agreement, all
amendments and supplements thereto and all exhibits and schedules to any of the
foregoing.
Authentication Agent: Citibank, N.A., or its successor in
interest, and any successor authentication agent appointed as provided in this
Agreement.
Benefit Plan: The meaning assigned in Section 3.4(f).
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.4(a).
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The principal office of the Owner
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office at the Closing Date is located at 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Agency
Trust; the telecopy number for the Corporate Trust Office on the date of the
execution of this Agreement is (000) 000-0000.
Depositor: Antigua Funding Corporation, a Delaware
corporation, in its capacity as depositor hereunder.
Equity Certificate Distribution Account: The account
designated as the Equity Certificate Distribution Account in, and which is
established and maintained pursuant to, Section 5.1.
Equity Certificate: The certificate executed by the Owner
Trustee evidencing the entire beneficial ownership interest in the Trust,
substantially in the form attached hereto as Exhibit A.
Equity Certificateholder: A Person in whose name the Equity
Certificate is registered in the Certificate Register.
ERISA: The meaning assigned to such term in Section 3.4(f).
Expenses: The meaning assigned to such term in Section 8.2.
Indemnified Parties: The meaning assigned to such term in
Section 8.2.
Indenture: The Indenture, dated as of December 1, 1998,
between the Trust and The Bank of New York, as Indenture Trustee, as the same
may be amended and supplemented from time to time.
N.Y. UCC: The UCC as in effect in the State of New York from
time to time.
Owner Trustee: Citibank, N.A., or its successor in interest,
acting not individually but solely as trustee on behalf of the Trust, and any
successor trustee appointed as provided in this Agreement.
Paying Agent: Any paying agent or co-paying agent appointed
pursuant to Section 3.9, which initially shall be the Owner Trustee.
Record Date: With respect to any Payment Date or Redemption
Date, the close of business on the last Business Day immediately preceding such
Payment Date or Redemption Date.
Related Documents: This Agreement, the Notes, the Equity
Certificate, the Transfer and Servicing Agreement, the Indenture, the Purchase
Agreements, the Cash Collateral Account Agreement, the Depository Agreements and
the Underwriting Agreement. The Related Documents executed by any party are
referred to herein as "such party's Related Documents," "its Related Documents"
or by a similar expression.
Responsible Officer: When used with respect to the Owner
Trustee, any Vice President, Assistant Vice President, Senior Trust Officer,
Assistant Trust Officer, Trust Officer or other officer associated with the
corporate trust department of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such officer's knowledge and familiarity with
the particular subject.
Transfer and Servicing Agreement: The Transfer and Servicing
Agreement, dated as of December 1, 1998, among the Trust, the Depositor, TCC, in
its individual capacity and as
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Servicer, and The Bank of New York, as trustee under the Indenture, as the same
may be amended and supplemented from time to time.
Trust: The trust created by this Agreement, the estate of
which consists of the Trust Assets.
Trust Accounts: The Equity Certificate Distribution Account,
and such other accounts as may be established in the name of the Trust pursuant
to the Indenture or the Transfer and Servicing Agreement.
Trust Assets: The property and proceeds of every description
conveyed pursuant to Section 2.6 hereof and Section 2.1 of the Transfer and
Servicing Agreement, together with the Trust Accounts (including all Eligible
Investments therein and all proceeds therefrom) and the right to withdraw funds
from the Cash Collateral Account pursuant to Section 8.06 of the Indenture.
Underwriting Agreement: The Underwriting Agreement, dated as
of December 10, 1998, among the Depositor, TCC and the underwriters named
therein relating to the Notes.
Section 1.2. Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
Section 1.3. Calculations. All calculations of the amount of
interest accrued on the Equity Certificate shall be made on the basis of a
360-day year consisting of twelve 30-day months.
Section 1.4. Section References. All references to Articles,
Sections, paragraphs, subsections, exhibits and schedules shall be to such
portions of this Agreement unless otherwise specified.
Section 1.5. Action by or Consent of Equity Certificateholder.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Equity Certificateholder, such provision shall be deemed to
refer to the Equity Certificateholder of record as of the Record Date
immediately preceding the date on which such action is to be taken, or consent
given, by the Equity Certificateholder.
Section 1.6. No Recourse. The Equity Certificateholder by
accepting the Equity Certificate acknowledges that the Certificateholder's
Equity Certificate represents beneficial interest in the Trust only and does not
represent an interest in or obligation of the Depositor, the Servicer, the Owner
Trustee, the Indenture Trustee or any Affiliate of any of the foregoing and no
recourse
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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 Related
Documents.
ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust. There is hereby formed a trust
to be known as "Newcourt Equipment Trust Securities 1998-2."
Section 2.2. Office. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address as
the Owner Trustee may designate by written notice to the Equity
Certificateholder, the Depositor, and the Indenture Trustee.
Section 2.3. Purposes and Powers. The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and to sell
the Notes in the manner directed by the Depositor;
(ii) to issue the Equity Certificate to or upon the written
order of the Depositor, pursuant to this Agreement;
(iii) with the proceeds of the sale of the Notes, to pay the
organizational, start-up and transactional expenses of the Trust (if
and to the extent not paid by the Depositor pursuant to Section 2.6);
and to acquire the Contracts and the other items conveyed pursuant to
the Transfer and Servicing Agreement;
(v) to assign, grant, transfer, pledge, mortgage and convey
any or all of the Trust Assets to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders;
(vi) to hold, manage and distribute to the Equity
Certificateholder any portion of the Trust Assets released from the
Lien of, and remitted to the Trust pursuant to, the Indenture and to
distribute to the Equity Certificateholder any other portion of the
Trust Assets in the manner prescribed by the Transfer and Servicing
Agreement, the Indenture and the Cash Collateral Account Agreement;
(vii) to enter into and perform its obligations under the
Transfer and Servicing Agreement and the other Related Documents to
which it is to be a party;
(viii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
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(ix) subject to compliance with the Related 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
Equity Certificateholder and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Trust at the written direction of the Equity Certificateholder,
the Depositor or the Indenture Trustee, as appropriate. The Depositor is hereby
authorized to execute any registration statements, applications or other
documents on behalf of the Trust that are necessary, suitable or convenient to
accomplish the foregoing. The Owner Trustee, on behalf of the Trust, shall not
engage in any activity other than in connection with the foregoing or other than
as required or expressly authorized by the terms of this Agreement or the
Related Documents.
Section 2.4. Trust May Consolidate or Merge Only on Certain
Terms.
(a) The Trust shall not consolidate or merge with or into any
other Person, unless the conditions specified in Section 3.10(a) of the
Indenture have been satisfied.
(b) The Trust shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Trust Estate under the Indenture, to any Person (except as expressly permitted
by the Indenture or the Transfer and Servicing Agreement), unless the conditions
specified in Section 3.10(b) of the Indenture have been satisfied.
Section 2.5. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.6. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $10. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Assets and
shall be deposited in the Equity Certificate Distribution Account. The Depositor
shall pay organizational expenses of the Trust as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
and all such expenses paid by the Owner Trustee.
Section 2.7. 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 use and benefit of the Depositor, until the
issuance of the Equity Certificate, and thereafter the Equity Certificateholder,
subject to the interests and rights in the Trust Assets granted to other Persons
by the Related Documents.
Section 2.8. Liability of the Depositor.
(a) The Depositor shall be liable directly to fully indemnify
each injured party for all losses, claims, damages, liabilities and expenses of
the Trust, to the extent not paid out of the Trust Assets, provided, however,
that the Depositor shall not be liable for any losses incurred by the Equity
Certificateholder in the capacity of an investor in the Equity Certificate or a
Note Owner in
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the capacity of an investor in the Notes; provided, further, that the Depositor
shall not be liable to indemnify any injured party 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 provisos to the preceding sentence for which the Depositor
shall not be liable) shall be deemed third party beneficiaries of this
paragraph.
(b) The Depositor, other than to the extent set forth in
paragraph (a), shall not 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 Related Document.
Section 2.9. Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties on which the Owner Trustee relies in accepting
the Trust Assets in trust and issuing the Notes and the Equity Certificate.
Unless otherwise specified, such representations and warranties speak as of the
Closing Date.
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and as such business is currently conducted and is proposed to be
conducted pursuant to this Agreement and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property, the conduct of its business and the performance
of its obligations under this Agreement and the Related Documents
requires such qualification.
(c) Power and Authority. It has the power and authority to
execute and deliver this Agreement and its Related Documents and to
perform its obligations pursuant thereto (including but not limited to
the transfer of the Contracts to the Trust); and the execution,
delivery and performance of this Agreement and its Related Documents
have been duly authorized by all necessary corporate action.
(d) No Consent Required. No consent, license, approval or
authorization of, or registration or declaration with, any Person or
any governmental authority, bureau or agency is required to be obtained
by the Depositor in connection with the execution, delivery or
performance of this Agreement and the Depositor's Related Documents,
except for such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and its Related Documents and the
fulfillment of its obligations under this Agreement and its Related
Documents will not conflict with, result in any breach of any of the
terms and provisions of or constitute (with or without notice, lapse of
time or both) a default under, its certificate of incorporation or
by-laws, or any indenture, agreement,
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mortgage, deed of trust or other instrument to which it is a party or
by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument,
or violate any law, order, rule or regulation applicable to it or
any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge, threatened against it before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the
Related Documents, (B) seeking to prevent the issuance of the Equity
Certificate or the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (C)
seeking any determination or ruling that might materially and adversely
affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents, or
(D) seeking to adversely affect the Federal income tax or other
Federal, state or local tax attributes of the Trust, the Notes or the
Equity Certificate.
(g) Place of Business. The principal executive offices of the
Depositor are in Morristown, New Jersey, and the offices where the
Depositor keeps its records concerning the Contracts and related
documents are in Morristown, New Jersey.
(h) Not an Investment Company. The Depositor is not an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is exempt from all provisions of such Act.
(i) Binding Obligations. This Agreement and each of the
Depositor's Related Documents constitutes the legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, except (A) as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect, affecting
the enforcement of creditors' rights in general, and (B) as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
Section 2.10. Covenants of the Depositor. The Depositor agrees
and covenants for the benefit of each Note Owner, each Equity Certificateholder
and the Owner Trustee, during the term of this Agreement, and to the fullest
extent permitted by applicable law, that:
(a) Other Indebtedness. It shall not create, incur or suffer
to exist any indebtedness or engage in any business, except, in each
case, as permitted by its certificate of incorporation and the Related
Documents. In no event will the Depositor create, incur or suffer to
exist any indebtedness if such indebtedness would cause any Rating
Agency to reduce or withdraw its ratings of any of the Notes.
(b) Non-petition. It shall not, for any reason, institute
proceedings for itself or the Trust to be adjudicated a bankrupt or
insolvent, or consent to the institution of bankruptcy
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or insolvency proceedings against itself or the Trust, or file a
petition seeking or consenting to reorganization or relief under any
applicable Federal or state law relating to the bankruptcy of itself or
the Trust, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of itself
or the Trust or a substantial part of its assets or the property of the
Trust or cause or permit itself or the Trust to make any assignment for
the benefit of creditors, or admit in writing its inability or the
inability of the Trust to pay its debts generally as they become due,
or declare or effect a moratorium on the debt of itself or the Trust or
take any action in furtherance of any such action.
(c) Other Parties. It shall obtain from each counterparty to
each Related Document to which it or the Trust is a party and each
other agreement entered into on or after the date hereof to which it or
the Trust is a party, an agreement by each such counterparty that such
counterparty shall not institute against, or join any other Person in
instituting against, it or the Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar
proceedings under the laws of the United States or any state of the
United States.
(d) No Liens. Except for the conveyances as provided hereunder
or in the Related Documents, the Depositor will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on, any Contract or any other Trust Assets
or any Equipment (except as created by the related Contract), whether
now existing or hereafter created, and the Depositor shall defend the
right, title and interest of the Trust in, to and under the Contracts
and the other Trust Assets, whether now existing or hereafter created,
and such rights, remedies, powers and privileges, against all claims of
third parties claiming through or under the Depositor; the Depositor
will immediately notify the Trustee of the existence of any Lien on any
Contract or Equipment (except as created by the related Contract); and
the Depositor shall defend the right, title and interest of the Trust
in, to and under the Contracts and the other Trust Assets, whether now
existing or hereafter created, against all claims of third parties
claiming through or under the Depositor.
(e) Enforcement of Purchase Agreements. The Depositor agrees
to take all action necessary and appropriate to enforce its rights and
claims under the Purchase Agreements.
(f) Separate Business. The Depositor:
(i) will (A) maintain and prepare financial reports,
financial statements, books and records and bank accounts
separate from those of its Affiliates and any other person or
entity and (B) not permit any Affiliate or any other person or
entity independent access to its bank accounts;
(ii) will not commingle its funds and other assets
with those of any Affiliate, any guarantor of any of the
obligations of the Depositor (each, a "Guarantor"), any
Affiliate of any Guarantor or any other person or entity;
(iii) will conduct its own business in its own name
and will hold all of its assets in its own name;
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(iv) will remain solvent and pay its debts and
liabilities (including employment and overhead expenses) from
its assets as the same become due;
(v) will do all things necessary to observe corporate
formalities, and preserve its existence as a single-purpose,
bankruptcy-remote entity in accordance with the standards of
the Rating Agencies providing ratings on the Notes, as such
standards are in effect on the date of issuance of the Notes
and the Equity Certificate;
(vi) will enter into transactions with Affiliates
only if each such transaction is commercially reasonable and
on similar terms as a transaction that would be entered into
on an arm's length basis with a person or entity other than an
Affiliate of the Depositor;
(vii) will pay the salaries of its own employees from
its own funds and maintain a sufficient number of employees in
light of its contemplated business operations;
(viii) will compensate each of its consultants and
agents from its own funds for services provided to it and pay
from its own assets all obligations of any kind incurred;
(ix) will not guarantee, become obligated for, or
hold itself or its credit out to be responsible for, or
available to satisfy, the debts or obligations of any other
person or entity or the decisions or actions respecting the
daily business or affairs of any other person or entity
(except as contemplated by its certificate of incorporation
and the Related Documents);
(x) will not (i) acquire obligations or securities of
any Affiliate or any of the stockholders of the Depositor or
(ii) buy or hold any evidence of indebtedness issued by any
other person or entity, other than cash, investment-grade
securities, the Contracts and other pools of receivables
similar to the Contracts;
(xi) will allocate fairly and reasonably and pay from
its own funds the cost of (i) any overhead expenses (including
paying for any office space) shared with any Affiliate of the
Depositor and (ii) any services (such as asset management,
legal and accounting) that are provided jointly to the
Depositor and one or more of its Affiliates;
(xii) will maintain and utilize separate stationery,
invoices and checks bearing its own name and allocate separate
office space (which may be a separately identified area in
office space shared with one or more Affiliates of the
Depositor) and maintain a separate sign in the office
directory of the building in which the Depositor maintains its
principal place of business;
(xiii) will not make any loans or advances to, or
pledge its assets for the benefit of, any other person or
entity, including, without limitation, any Affiliate or
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Guarantor or any Affiliate of any Guarantor (except as
contemplated by its certificate of incorporation and the
Related Documents);
(xiv) will be, and at all times will hold itself out
to the public as, a legal entity separate and distinct from
any other person or entity;
(xv) will, in the event that any authorized officer
knows of any misunderstanding regarding the separate identity
of the Depositor, correct such misunderstanding;
(xvi) will not identify itself or any of its
Affiliates as a division or part of any other entity; and
(xvii) will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size
and character and in light of its contemplated business
operations.
(g) Purchase Agreement Notices. The Depositor (i) shall
promptly give the Owner Trustee and the Indenture Trustee copies of any
notices, reports or certificates given or delivered to the Depositor
under the Purchase Agreements, (ii) shall not without the consents,
approvals and opinions, if any, required by Section 11.1, as if Section
11.1 related to each Purchase Agreement rather than this Agreement,
enter into any amendment, supplement or other modification to, or
waiver of any provision of, any Purchase Agreement and (iii) shall not
permit the removal of a Contract from the operation of the related
Purchase Agreement unless there is a corresponding right or obligation
of the Depositor to remove such Contract from the Trust.
Section 2.11. Covenants of the Equity Certificateholder. The
Equity Certificateholder by becoming an Equity Certificateholder agrees:
(a) to be bound by the terms and conditions of the Equity
Certificate of which such Holder is the beneficial owner and of this
Agreement, including any supplements or amendments hereto and to
perform the obligations of a Holder as set forth therein or herein, in
all respects as if it were a signatory hereto. This undertaking is made
for the benefit of the Trust, the Owner Trustee and all future Equity
Certificateholders.
(b) not to, for any reason, institute proceedings for the
Trust or the Depositor to be adjudicated a bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings
against the Trust or the Depositor, or file a petition seeking or
consenting to reorganization or relief under any applicable Federal or
state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or the Depositor or a substantial part of its
property, or cause or permit the Trust or the Depositor to make any
assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due, or declare or
effect a moratorium on its debt or take any action in furtherance of
any such action.
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ARTICLE III
THE EQUITY CERTIFICATE
Section 3.1. Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.6 and until the
issuance of the Equity Certificate, the Depositor shall be the sole beneficiary
of the Trust.
Section 3.2. The Equity Certificate; Authorized Denomination.
(a) The Equity Certificate shall be executed on behalf of the
Trust by the Owner Trustee by manual or facsimile signature of any authorized
signatory of the Owner Trustee having such authority. A Certificate bearing the
manual or facsimile signatures of individual(s) who were, at the time when such
signature(s) were affixed, authorized to sign on behalf of the Owner Trustee
shall be validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Equity Certificate.
(b) On the Closing Date, one Equity Certificate shall be
issued to the Depositor. There shall at all times be a single Equity
Certificate.
Section 3.3. Authentication of Equity Certificate. The Equity
Certificate shall not entitle the holder to any benefit under this Agreement, or
shall 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 A, executed by the Owner Trustee or the Authentication Agent, by
manual or facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Owner Trustee hereby initially appoints itself as Authentication
Agent. The Equity Certificate shall be dated the date of its authentication.
Section 3.4. Registration of Transfer and Exchange of Equity
Certificate.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.8,
a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Owner Trustee shall provide for the
registration of the Equity Certificate and of transfers and exchanges
of the Equity Certificate as provided in this Agreement. The Owner
Trustee hereby initially appoints itself Certificate Registrar for the
purpose of registering the Equity Certificate and transfers and
exchanges of the Equity Certificate as provided in this Agreement.
(b) The Depositor may transfer the Equity Certificate only in
connection with the sale of all or substantially all of its assets, in
a manner permitted by its certificate of incorporation and its Related
Documents.
(c) If the registration of transfer of an Equity Certificate
is permitted by subsection (b), then, upon surrender for registration
of transfer of such Equity Certificate at
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the office or agency maintained pursuant to Section 3.8, the Owner
Trustee shall execute, authenticate and deliver (or shall cause the
Authentication Agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Equity
Certificates in authorized denominations and aggregate proportion of
the Equity Certificate Balance dated the date of authentication by the
Owner Trustee or any Authentication Agent. If the registration of
transfer of an Equity Certificate is permitted by subsection (b), then
at the option of the Holder, such Equity Certificate may be exchanged
for other Equity Certificates in authorized denominations of a like
aggregate amount upon surrender of the Equity Certificates to be
exchanged at the office or agency maintained pursuant to Section 3.8.
(d) An Equity Certificate presented or surrendered for
registration of transfer or exchange must be accompanied by a written
instrument of transfer, in substantially the form of assignment
included in Exhibit A hereto, duly executed by the Holder or his
attorney duly authorized in writing. Each Equity Certificate properly
surrendered for registration of transfer or exchange shall be canceled
and subsequently disposed of by the Owner Trustee in accordance with
its customary practice.
(e) No service charge shall be made for any registration of
transfer or exchange of the Equity Certificate, but the Owner Trustee
or the Certificate Registrar may require payment of a sum sufficient to
cover any tax, fee, assessment or governmental charge that may be
imposed in connection with any transfer or exchange of Equity
Certificate.
(f) No Equity Certificate may be acquired by or for the
account of (i) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title 1 of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Code, or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and
holding an Equity Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan.
(g) In addition to the restrictions of subsection (b) above,
no transfer of an Equity Certificate may be made by the Depositor or
any other Person unless such transfer is exempt from the registration
requirements of the Securities Act of 1933 (the "Act"), as amended, and
any applicable state securities laws or is made in accordance with the
Act and such state laws. In the event that any such transfer is to be
made, (A) the Depositor may require a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Depositor
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the Act and such
state laws or is being made pursuant to the Act and such state laws,
which Opinion of Counsel shall not be an expense of the Owner Trustee
or the Depositor, and (B) the Owner Trustee shall require the
transferee to execute a representation letter substantially in the form
of Exhibit B attached hereto, which representation letter shall not be
an expense of the Owner Trustee or the Depositor. The Equity
Certificateholder desiring to effect such transfer shall, and does
hereby agree to, fully indemnify the Owner Trustee, the Depositor and
the Certificate Registrar against any liability that may result if the
transfer is not so exempt or is not made in accordance with the Act and
such state laws.
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Section 3.5. Mutilated, Destroyed, Lost or Stolen Equity
Certificate. If (a) any mutilated Equity Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of an 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 free and
harmless, then, in the absence of notice to the Certificate Registrar or the
Owner Trustee that such Equity Certificate has been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall execute, authenticate
and deliver (or the Authentication Agent shall authenticate and deliver), in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Equity
Certificate, a new Equity Certificate. In connection with the issuance of any
new Equity Certificate under this Section 3.5, the Owner Trustee 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 fees
and expenses of the Owner Trustee and the Certificate Registrar and their agents
and counsel) connected therewith. Any duplicate Equity Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of ownership
of a beneficial interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Equity Certificate shall be found at any time.
Section 3.6. Persons Deemed Owners. Prior to due presentation
of an Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any agent of the Owner Trustee or the Certificate
Registrar may treat the person in whose name any Equity Certificate is
registered as the owner of such Equity Certificate for the purpose of receiving
distributions pursuant to Section 5.2, and for all other purposes whatsoever,
and neither the Owner Trustee, the Certificate Registrar nor any agent of the
Owner Trustee or the Certificate Registrar shall be affected by any notice to
the contrary.
Section 3.7. Access to List of Equity Certificateholder's Name
and Address. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by a Responsible Officer of the Owner
Trustee of a written request therefor, the name and address of the Equity
Certificateholder as of the most recent Record Date for payment of distributions
to the Equity Certificateholder. An Equity Certificateholder, by receiving and
holding an Equity Certificate, agrees that none of the Servicer or 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 under this Agreement, regardless of the source from which such
information was derived.
Section 3.8. Maintenance of Office or Agency. The Owner
Trustee shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where the 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
the Related Documents may be served. The Owner Trustee initially designates its
Corporate Trust Office as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice to the Depositor
and to the Equity Certificateholder of any change in the location of the
Certificate Register or any such office of agency.
Section 3.9. Appointment of Paying Agent. The Paying Agent
shall make distributions to the Equity Certificateholder from the Equity
Certificate Distribution Account
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pursuant to Section 5.2, and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Equity Certificate Distribution Account for the purpose of making
the distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines that the Paying Agent
shall have failed to perform its obligations under this Agreement in any
material respect. The Paying Agent shall initially be the Owner Trustee, and any
co-paying agent (which shall be a bank or trust company) chosen by the Owner
Trustee. Any Paying Agent chosen by the Owner Trustee shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Owner Trustee. The
Owner Trustee shall cause each Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such Paying
Agent shall agree with the Owner Trustee that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Equity Certificateholder in trust for the benefit of the
Equity Certificateholder entitled thereto until such sums shall be paid to such
Equity Certificateholder. The Paying Agent shall return all unclaimed funds to
the Owner Trustee, and upon removal of a Paying Agent, such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4 and 8.2 shall apply to the Owner Trustee also in its role
as Paying Agent for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Restriction on Power of the Equity
Certificateholder. No Equity Certificateholder shall have any right to vote or
in any manner otherwise control the operation and management of the Trust except
as expressly provided in this Agreement.
Section 4.2. Prior Notice to the Equity Certificateholder with
Respect to Certain Matters. The Owner Trustee shall not take any of the
following actions, unless at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Equity Certificateholder in writing of the
proposed action and a Responsible Officer of the Owner Trustee shall not have
received written notice prior to the 30th day after such notice is given that
the Equity Certificateholder has withheld consent or provided alternative
direction:
(a) the amendment of this Agreement pursuant to Section 11.1,
unless such amendment would not, as evidenced by an Opinion of Counsel
provided to the Owner Trustee, materially and adversely affect the
interests of the Equity Certificateholder;
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required, as
provided in Section 9.02 of the Indenture, unless such amendment would
not, as evidenced by an Opinion of Counsel provided to the Owner
Trustee, materially and adversely affect the interests of the Equity
Certificateholder;
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(c) the amendment of any other Related Document pursuant to the
provisions thereof, unless such amendment would not, as evidenced by an
Opinion of Counsel provided to the Owner Trustee, materially and
adversely affect the interests of the Equity Certificateholder; or
(d) the initiation or settlement of any material claim,
proceeding or lawsuit affecting the Trust or the Trust Assets.
Section 4.3. Action by the Owner Trustee with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a proceeding
in bankruptcy relating to the Depositor or the Trust without the prior written
approval of the Indenture Trustee and the delivery to the Owner Trustee by the
Indenture Trustee of a certificate certifying that the Indenture Trustee
reasonably believes that the Depositor or the Trust, as appropriate, is
insolvent.
Section 4.4. Restrictions on Equity Certificateholder's Power.
The Equity Certificateholder shall not have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Related Document, unless (i) the Equity Certificateholder has provided
instruction to the Owner Trustee pursuant to Section 6.3, (ii) the Equity
Certificateholder shall have given to the Owner Trustee a written notice of
default under or breach of this Agreement or any Related Document and of the
continuance thereof, as provided in this Agreement, and (iii) the Equity
Certificateholder shall have made written request upon the Owner Trustee to
institute such action, suit or proceeding in its own name as Owner Trustee under
this Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner Trustee, for 30 days after its
receipt of such notice, request, and offer of indemnity, shall have neglected or
refused to institute any such action, suit, or proceeding, and during such
30-day period no request or waiver inconsistent with such written request has
been given to the Owner Trustee pursuant to and in compliance with this Section
or Section 6.3; it being understood and intended, and being expressly covenanted
by the Equity Certificateholder with the Owner Trustee, that the Equity
Certificateholder shall not have any right in any manner whatever by virtue or
by availing itself or themselves of any provisions of this Agreement to enforce
any right under this Agreement, except in the manner provided in this Agreement.
For the protection and enforcement of the provisions of this Section 4.4, the
Equity Certificateholder and the Owner Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 4.5. Authority of the Depositor. The Depositor shall
have the authority to sign, on behalf of the Owner Trust, all filings with the
Securities and Exchange Commission made by the Owner Trust.
Section 4.6. Income Tax Characterization. The Depositor has
structured this Agreement, the Indenture, the Cash Collateral Account Agreement
and the Notes with the intention that the Notes will qualify under applicable
federal, state, local and foreign tax law as indebtedness of the Depositor
secured by the Contracts. The Depositor and the Owner Trust agree to treat and
to take no action inconsistent with the treatment of the Notes as such
indebtedness for purposes of
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federal, state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Trust Accounts.
(a) The Owner Trustee shall establish and maintain the Equity
Certificate Distribution Account in the name of the Trust for the benefit of the
Equity Certificateholder. The Equity Certificate Distribution Account shall be
an Eligible Account and initially shall be a segregated trust account
established with the Owner Trustee and maintained with the Owner Trustee.
(b) The Owner Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Equity Certificate
Distribution Account and in all proceeds thereof. If, at any time, the Equity
Certificate Distribution Account ceases to be an Eligible Account, the Owner
Trustee shall within 5 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Equity Certificate Distribution Account, as an Eligible Account and shall
transfer any cash and investments to such new Equity Certificate Distribution
Account.
(c) All amounts held in the Equity Certificate Distribution
Account shall, to the extent permitted by applicable laws, rules and
regulations, be invested by the Owner Trustee at the written direction of the
Depositor in Eligible Investments that mature not later than one Business Day
prior to the immediately following Payment Date. Such investments shall not be
sold or disposed of prior to their maturity. All investments of funds in the
Equity Certificate Distribution Account shall be held by a financial institution
in accordance with the following requirements:
(i) all Eligible Investments shall be held in an account with
such financial institution in the name of the Owner Trustee on behalf
of the Trust;
(ii) with respect to securities held in such account, such
securities must be:
(A) certificated securities (as such term is used in
N.Y. UCC 'SS' 8-102(a)(4)), securities deemed to be
certificated securities under applicable regulations of the
United States government, or uncertificated securities issued
by an issuer organized under the laws of the State of New York
or the State of Delaware;
(B) either (I) in the possession of such financial
institution, (II) in the possession of a clearing corporation
(as such term is used in N.Y. UCC 'SS' 8-102(a)(5)),
registered in the name of such clearing corporation or its
nominee, not endorsed for collection or surrender or any other
purpose not involving transfer, not containing any evidence of
a right or interest inconsistent with the Owner Trustee's
security interest therein, and held by such clearing
corporation in an account of such financial institution,
(III) held in an account of a financial institution
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with the Federal Reserve Bank of New York, or (IV) in the case
of uncertificated securities, issued in the name of such
financial institution; and
(C) identified, by book entry or otherwise, as held
for the account of, or pledged to, the Owner Trustee on the
records of such financial institution, and such financial
institution shall have sent the Owner Trustee a written
confirmation thereof;
(iii) with respect to repurchase obligations held in a
Certificate Account, each such repurchase obligation must be identified
by such financial institution, by book entry or otherwise, as held for
the account of, or pledged to, the Owner Trustee on the records of such
financial institution, and the related securities must be held in
accordance with the requirements of clause (ii) above;
(iv) with respect to any Eligible Investments other than
securities and repurchase agreements, such Eligible Investments must be
held in a manner acceptable to the Owner Trustee.
Subject to the other provisions hereof, the Owner Trustee
shall have sole control over each such investment and the income thereon, and
any certificate or other instrument evidencing any such investment, if any,
shall be delivered directly to the Owner Trustee or its agent, together with
each document of transfer, if any, necessary to transfer title to such
investment to the Owner Trustee in a manner which complies with this Section
5.1. All interest, dividends, gains upon sale and other income from, or earnings
on investment of, funds in the Equity Certificate Distribution Account shall be
deposited in the Equity Certificate Distribution Account and distributed on the
next Payment Date pursuant to Section 5.2(d). The Depositor shall deposit in the
Equity Certificate Distribution Account an amount equal to any net loss on such
investments immediately as realized.
Section 5.2. Application of Funds in the Equity Certificate
Distribution Account.
(a) On each Payment Date the Paying Agent will, based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 3.9 of the Transfer and Servicing
Agreement, distribute to Equity Certificateholder, to the extent of the funds
available, amounts deposited in the Equity Certificate Distribution Account
pursuant to Section 8.03 of the Indenture or pursuant to Section 2.02 of the
Cash Collateral Account Agreement with respect to such Payment Date.
(b) On the Payment Date following the date on which amounts
received in respect of the Depositor's exercise of its option to purchase the
corpus of the Trust pursuant to Section 5.1(a) of the Transfer and Servicing
Agreement are deposited in the Equity Certificate Distribution Account pursuant
to Section 8.03 of the Indenture, the Paying Agent will distribute such funds to
the Equity Certificate.
(c) On the Payment Date following each date on which the
Indenture Trustee makes payments of money or property in respect of liquidation
of the Trust Assets pursuant to Section 5.06 of the Indenture and deposits funds
received in connection with such liquidation in the Equity Certificate
Distribution Account, the Paying Agent will distribute such funds.
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(d) On each Payment Date, the Paying Agent shall send to the
Equity Certificateholder the statement required pursuant to Section 7.05(b) of
the Indenture.
(e) In the event that any withholding tax is imposed on the
Trust's payment to the Equity Certificateholder, such tax shall reduce the
amount otherwise distributable to such Equity Certificateholder in accordance
with this Section. The Paying Agent 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 an 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 (such
as a distribution to a non-U.S. Certificateholder), the Owner Trustee may in its
sole discretion withhold such amounts in accordance with this paragraph (e). 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 such
Equity Certificateholder in making such claim so long as such Equity
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred (including the fees and expenses of its agents and counsel).
Section 5.3. Method of Payment. Subject to Section 9.1(d),
distributions of funds 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 either (i) by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, provided that such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Payment Date, or (ii) if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section 5.4. No Segregation of Monies; No Interest. Subject to
Section 5.1, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or by the
Indenture 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.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Related Documents to which
the Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Trust's Related Documents and any amendment
thereto, and on behalf of the Trust, to direct the Indenture Trustee to
authenticate and deliver to or upon the order of the Depositor the Class A-1
Notes in the aggregate principal amount of $322,288,614, the Class A-2 Notes in
the aggregate principal amount of $85,272,196, the Class A-3 Notes in the
aggregate principal amount of $470,004,229, the Class A-4 Notes in the aggregate
principal amount of $201,430,384, the Class A-5 Notes in the aggregate principal
amount
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of $122,872,534, the Class B Notes in the aggregate principal amount of
$15,442,996, the Class C Notes in the aggregate principal amount of $51,029,031
and the Class D Notes in the aggregate principal amount of $74,529,242. In
addition to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, to take all actions required of the Trust pursuant to the Related
Documents.
Section 6.2. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through such agents as shall be
appointed) all of its responsibilities pursuant to the terms of this Agreement
and the Related Documents and to administer the Trust in the interest of the
Equity Certificateholder, subject to the Related Documents and in accordance
with the provisions of this Agreement.
Section 6.3. Action upon Instruction.
(a) Subject to Article IV, the Equity Certificateholder shall
have the exclusive right to direct the actions of the Owner Trustee in the
management of the Trust, so long as such written instructions are not
inconsistent with the express terms set forth herein or in any Related Document,
and provided that if the Indenture Trustee, the Noteholders or the Servicer are
entitled, pursuant to the Indenture or the Transfer and Servicing Agreement, to
direct any actions of the Owner Trustee, such directions shall control. The
Equity Certificateholder may not instruct the Owner Trustee in a manner
inconsistent with this Agreement or the Related Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is contrary to the terms hereof or of any Related Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Related Document, and the Owner Trustee has not received
written instructions with respect to such matter from the Indenture Trustee, the
Noteholders or the Servicer pursuant to the terms of the Indenture or the
Transfer and Servicing Agreement, the Owner Trustee shall promptly give notice
(in such form as shall be 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. If
the Owner Trustee shall not have received appropriate instruction within 15 days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Related Documents, 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
application of any provision of this Agreement or any Related Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts,
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the Owner Trustee may give notice (in such form as shall be 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, the Owner Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within 15 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent with
this Agreement or the Related Documents, as it shall deem to be in the best
interests of the Equity Certificateholder, and shall have no liability of any
kind to any Person for such action or inaction.
Section 6.4. No Duties Except as Specified in this Agreement,
in Related Documents 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 Trust is a party, except as
expressly provided by the terms of this Agreement (including as provided in
Section 6.2), in any Related Document or in any written instruction received by
the Owner Trustee pursuant to Section 6.3; and no implied duties or obligations
shall be read into this Agreement or any Related Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for preparing,
monitoring or filing any financing or continuation statements in any public
office at any time or otherwise to perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement or
any Related Document; however, the Owner Trustee will from time to time execute
and deliver such financing or continuation statements as are prepared by the
Servicer and delivered to a Responsible Officer of the Owner Trustee for its
execution on behalf of the Trust for the purpose of perfecting or maintaining
the perfection of such a security interest or lien or effecting such a
recording. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense (and not at the expense of the Trust), promptly take all action as
may be necessary to discharge any liens on any part of the Trust Assets that are
attributable to claims against the Owner Trustee in its individual capacity that
are not related to the ownership or the administration of the Trust Assets.
Section 6.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust 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 Related Documents and
(iii) in accordance with any document or instruction delivered to a Responsible
Officer of the Owner Trustee pursuant to Section 6.3.
Section 6.6. Restrictions. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust becoming taxable as a corporation for Federal income tax
purposes. The Equity Certificateholder may not direct the Owner Trustee to take
action that would violate the provisions of this Section.
Section 6.7. Covenant of the Owner Trustee. The Owner Trustee
agrees that it will not, for any reason, institute proceedings for the Trust or
the Depositor to be adjudicated a bankrupt or insolvent,
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or consent to the institution of bankruptcy or insolvency proceedings against
the Trust or the Depositor, or file a petition seeking or consenting to
reorganization or relief under any applicable Federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or the Depositor
or a substantial part of its property, or cause or permit the Trust or the
Depositor to make any assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of any such
action.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. Acceptance of Trust and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Trust Assets upon the terms of the Related Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any Related Document under any circumstances, except (i) for its own
willful misconduct or gross negligence, (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 7.3, (iii) for liabilities
arising from the failure of the Owner Trustee to perform obligations expressly
undertaken by it in the last sentence of Section 6.4, or (iv) 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 Related Document. In particular, but not
by way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the instructions of the Equity Certificateholder pursuant to
Section 6.3;
(c) no provision of this Agreement or any Related Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights
or powers hereunder or under any Related Document if the Owner Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under this Agreement or any of
the Related 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 (except as
provided in Section 7.3) or for the due execution
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hereof by the 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 the Related Documents, other
than 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 the Indenture Trustee, any Noteholder or to the
Equity Certificateholder, other than as expressly provided for herein
and in the Related Documents;
(f) the Owner Trustee shall not be liable for the default,
negligence or misconduct of the Indenture Trustee or the Servicer under
any of the Related Documents or otherwise and the Owner Trustee shall
have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Related Documents that are required to be
performed by the Indenture Trustee under the Indenture or by the
Servicer under the Transfer and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Related Document, at
the request, order or direction of the 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 Related Document shall not
be construed as a duty, and the Owner Trustee shall not be answerable
for other than its gross negligence or willful misconduct in the
performance of any such act.
Section 7.2. Furnishing of Documents. The Owner Trustee shall
furnish to the Equity Certificateholder promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Related Documents unless the Equity
Certificateholder has previously received such items.
Section 7.3. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Depositor and the Equity Certificateholder
that:
(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 and all franchises,
grants, authorizations, consents, orders and approvals from all
governmental authorities necessary to execute, deliver and perform its
obligations under this Agreement and each Related Document to which the
Trust is a party.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which the Trust is a party, and this Agreement and each
such Related Document will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement
and such Related Document on its behalf.
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(c) Neither the execution nor the delivery by it of this
Agreement and each Related Document to which the Trust is a party, nor
the consummation by it of the transactions contemplated hereby or
thereby nor compliance by it with any of the terms or provisions hereof
or thereof will contravene any Federal or New York 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 by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Assets
resulting from actions by or claims against the Owner Trustee
individually which are unrelated to this Agreement or the Related
Documents.
Section 7.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper (whether
in its original or facsimile form) 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 corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof conclusively
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Related Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Related Document.
Section 7.5. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created Citibank,
N.A. 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 Related Document shall look
only to the Trust Assets for payment or satisfaction thereof.
Section 7.6. Owner Trustee Not Liable for Equity Certificate,
Notes or Contracts. The recitals contained herein, in the Equity Certificate
(other than the signature and counter-
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signature of the Owner Trustee on the Equity Certificate) and in the Notes
(other than the signature or counter-signature of the Owner Trustee on the
Notes) shall be taken as the statements of the 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, of any
Related Document or of the Equity Certificate (other than the signature and
counter-signature of the Owner Trustee on the Equity Certificate) or the Notes
(other than the signature or counter-signature of the Owner Trustee on the
Notes), or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any Equipment or the
maintenance of any such perfection and priority of any security interest created
by any Contract in any Equipment, or for or with respect to the sufficiency of
the Trust Assets or its ability 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 Depositor or the Servicer
with any warranty or representation made under any Related Document or in any
related document or the accuracy of any such warranty or representation or any
action of the Indenture Trustee or the Servicer taken in the name of the Owner
Trustee.
Section 7.7. Owner Trustee May Own Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may deal with the Depositor, the Indenture Trustee and the Servicer in
banking or other transactions with the same rights as it would have if it were
not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. Owner Trustee's Fees and Expenses. The Servicer,
pursuant to the Transfer and Servicing Agreement, has covenanted and agreed to
pay to the Owner Trustee, and the Owner Trustee shall be entitled to, such
annual fees as shall be agreed upon from time to time in writing and to
reimbursement for all ordinary and reasonable out-of-pocket expenses incurred or
made by it in the performance of its duties under this Agreement, 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 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
pursuant to Section 5.3.
Section 8.2. Indemnification. The Depositor shall be liable as
primary obligor for, and shall fully indemnify the Owner Trustee in its
individual capacity and its successors, assigns, agents and servants, and any
co-trustee (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all
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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 Indemnified Party in any way relating to or arising out of this
Agreement, the Related Documents, the Trust Assets, the administration of the
Trust Assets or the action or inaction of the Owner Trustee hereunder, except
only that the Depositor shall not be liable for or required to indemnify the
Owner Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement.
Section 8.3. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Related Document, the Owner Trustee agrees in
its individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Trust Assets only and
specifically shall not be recourse to the assets of any Equity
Certificateholder.
ARTICLE IX
TERMINATION
Section 9.1. Termination of the Trust.
(a) The respective obligations and responsibilities of the
Depositor and the Owner Trustee created by this Agreement and the Trust created
by this Agreement shall terminate upon the earliest of (i) the maturity or other
liquidation of the last Contract (including the purchase by the Depositor at its
option of the corpus of the Trust as described in Section 5.1 of the Transfer
and Servicing Agreement or the liquidation of the Trust Assets pursuant to
Section 5.06 of the Indenture) and the subsequent distribution of amounts in
respect of such Contracts as provided in the Related Documents, (ii) the
circumstances described in subsection (b) below, or (iii) the payment to
Noteholders of all amounts required to be paid to them pursuant to the
Indenture, the payment to the Equity Certificateholder of all amounts required
to be paid to them pursuant to this Agreement and the payment to the Cash
Collateral Account Lenders and the Depositor of all amounts due under the Cash
Collateral Account Agreement; provided, however, that in no event shall the
trust created by this Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants living on the date of this
Agreement of Xxxx Xxxxxxx of the Commonwealth of Massachusetts; and provided,
further, that the rights to compensation and indemnification under Sections 8.1
and 8.2, respectively, shall survive the termination of the Trust. In any case,
there shall be delivered to the Owner Trustee, the Indenture Trustee and the
Rating Agencies an Opinion of Counsel that all applicable preference periods
under Federal, state and local bankruptcy, insolvency and similar laws have
expired with respect to the payments pursuant to clause (iii). The Servicer
shall promptly notify the Owner Trustee of any prospective termination pursuant
to this Section 9.1. The bankruptcy, liquidation, dissolution, termination,
resignation, expulsion, withdrawal, death or incapacity of any 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
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any part of the Trust or Trust Assets nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) In the event of
(i) the commencement of an involuntary case in respect of the
Depositor under the Federal bankruptcy laws, as now or hereinafter in
effect, or another present or future Federal or state bankruptcy,
insolvency or similar law and such case is not dismissed within 60
days;
(ii) the entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Depositor in
an involuntary case under the Federal bankruptcy laws, as now or
hereafter in effect, or another present or future Federal or state
bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Depositor or of any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the
Depositor; or
(iii) the commencement by the Depositor of a voluntary case
under the Federal bankruptcy laws, as now or hereafter in effect, or
any other present or future Federal or state bankruptcy, insolvency or
similar law, or the consent by the Depositor to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Depositor or
of any substantial part of its property, or the making by the Depositor
of an assignment for the benefit of creditors, or the failure by the
Depositor generally to pay its debts as such debts become due, or the
taking of corporate action by the Depositor in furtherance of any of
the foregoing;
then, after the Indenture Trustee, as required by Section 5.04 of the Indenture,
has foreclosed upon its security interest in the Trust Estate granted pursuant
to the Indenture, the respective obligations and responsibilities of the
Depositor, the Equity Certificateholder and the Owner Trustee created by this
Agreement and the Trust created by this Agreement shall terminate. The Equity
Certificateholder on the date of such termination shall thereupon be entitled to
receive distributions directly from the Indenture Trustee in the manner and
order of priority specified in Section 5.06 of the Indenture.
(c) Except as provided in Section 9.1(a), neither the
Depositor nor the Equity Certificateholder shall be entitled to revoke or
terminate the Trust.
(d) Within five Business Days of receipt of notice of
termination of the Trust given by the Servicer pursuant to Section 9.1(a) hereof
or Section 5.1(b) of the Transfer and Servicing 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 the Equity Certificate at the office of the
Paying Agent 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 Paying Agent therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar at the time
such notice is given to Equity
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Certificateholder. In the event such notice is given, (i) the Indenture Trustee
shall make deposits into the Equity Certificate Distribution Account in
accordance with Section 8.03 of the Indenture, or (ii) in the case of an
optional purchase of Contracts pursuant to Section 5.1 of the Transfer and
Servicing Agreement, the Indenture Trustee shall deposit the amount specified in
Section 5.1 of the Transfer and Servicing Agreement in the Equity Certificate
Distribution Account. Upon presentation and surrender of the Equity Certificate,
the Paying Agent shall cause to be distributed to the Equity Certificateholder
amounts distributable on such Payment Date pursuant to Section 5.2.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation (i) authorized to exercise
corporate trust powers; (ii) having at least $1,000,000,000 in assets and a
combined capital and surplus of at least $50,000,000; (iii) having (or having a
parent which has) a long-term debt rating of at least investment grade by
Xxxxx'x, S&P and Fitch (if rated by Fitch); and (iv) subject to supervision or
examination by Federal or State authorities. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time 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 10.2.
Section 10.2. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Owner
Trustee meeting the qualifications set forth in Section 10.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee, provided
that the Depositor shall have received written confirmation from each of the
Rating Agencies that the proposed appointment will not result in a reduction,
qualification or withdrawal of the ratings then assigned to the Notes and the
Equity Certificate by such Rating Agency. 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,
at the expense of the Depositor, 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 10.1 and shall fail to resign after
written request therefor by the Depositor 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 Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the immediately preceding
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sentence, the Depositor shall promptly appoint a successor Owner Trustee meeting
the qualification requirements of Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees and expenses owed to the outgoing Owner Trustee and its agents and
counsel.
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 10.3. The Depositor shall provide notice of such resignation or removal
of the Owner Trustee to each of the Rating Agencies.
Section 10.3. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the 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 deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the 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 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Depositor shall mail notice of the successor of
such Owner Trustee to the Equity Certificateholder, the Indenture Trustee, the
Noteholders and the Rating Agencies. If the Depositor 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 Depositor.
Section 10.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
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Section 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Assets may at the time be located, the Owner Trustee shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Trust Assets, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the 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 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.1.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Owner Trustee shall be incompetent or 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;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the 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,
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ARTICLE XI
MISCELLANEOUS PROVISIONS
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.
Section 11.1. Amendment.
(a) This Agreement may be amended by the Depositor and the
Owner Trustee, without the consent of the Noteholders, but with prior notice to
the Rating Agencies and the Indenture Trustee, for any of the following
purposes:
(i) to correct or amplify the description of the
Trust Assets;
(ii) to cure any ambiguity;
(iii) to correct or supplement any provision herein
which may be inconsistent with any other provision herein;
(iv) to make any other provisions with respect to
matters or questions arising under this Agreement, provided that such
amendment shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder; or
(v) to avoid a reduction, qualification or withdrawal
of any rating of the Notes.
(b) This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee and, unless such amendment does not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interests of Noteholders, the consent of a Note Majority (which consent of any
Holder of a Note given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder and
on all future Holders of such Note and of any Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof whether or not notation of
such consent is made upon the Note) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the Holders of the Notes;
provided, however, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Contracts or distributions that shall be required to be made on any
Note, (ii) reduce the aforesaid percentage required to consent to any such
amendment or any waiver hereunder, without the consent of the Holders of the
Notes then outstanding, or (iii) result in a reduction, qualification or
withdrawal of the rating of the Notes.
(c) Prior to the execution of any such amendment or consent,
the Depositor shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
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(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 Indenture Trustee unless the Indenture
Trustee has previously received such notification.
(e) It shall not be necessary for the consent of the
Noteholders pursuant to Section 11.1(b) to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Noteholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe, including the
establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement
or any Related Document, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or any Related Document, or otherwise.
SECTION 11.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.3. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Equity
Certificate or the rights of the Holder thereof.
Section 11.4. Equity Certificate Nonassessable and Fully Paid.
The Equity Certificateholder shall not, except as expressly provided for herein
with respect to the Depositor, be personally liable for obligations of the
Trust, the beneficial interests in the Trust represented by the Equity
Certificate shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and the Equity Certificate upon authentication
thereof by or on behalf of the Owner Trustee pursuant to Section 3.3 are and
shall be deemed fully paid.
Section 11.5. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, no other Person shall have any right or obligation hereunder.
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Section 11.6. Counterparts. For the purpose of facilitating
its execution and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
Section 11.7. Notices. All demands, notices and communications
under this Agreement shall be in writing, personally delivered or mailed by
certified mail-return receipt requested or by overnight delivery, or by
facsimile, and shall be deemed to have been duly given upon receipt (a) in the
case of the Depositor, at the following address: Antigua Funding Corporation,
c/o AT&T Capital Corporation, 0 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: General Counsel, (b) in the case of the Owner Trustee, at the
Corporate Trust Office, and (c) in the case of each Rating Agency, Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Standard &
Poor's Ratings Services, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
Asset-Backed Surveillance; and Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: ABS Surveillance; or at such other address as
shall be designated by any such party in a written notice to the other parties.
Notwithstanding the foregoing, any notice required or permitted to be mailed to
an Equity Certificateholder shall be given by first class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register, and any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Equity
Certificateholder receives such notice.
Section 11.8. Tax Election. The Depositor may, in its sole
discretion, direct the Owner Trustee to execute and file with the Internal
Revenue Service on behalf of the Trust an election for the Trust either to be
disregarded for federal income tax purposes or to be treated as a partnership
for federal income tax purposes, and upon receipt of such direction from the
Depositor, the Owner Trustee shall cause such election to be executed and filed
on behalf of the Trust. In the event the Depositor directs the Owner Trustee to
execute and file such an election, it shall be the responsibility of the
Depositor to prepare, at the Depositor's cost and expense, all documents
required to make such an election, and to advise the Depositor of the
appropriate procedure to be followed in making the election.
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IN WITNESS WHEREOF, the Depositor and the Owner Trustee have
caused this Trust Agreement to be duly executed by their respective officers as
of the day and year first above written.
ANTIGUA FUNDING CORPORATION
By /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and Treasurer
CITIBANK, N.A.
By /s/ X. Xxxxx
---------------------------------------------
Name: X. Xxxxx
Title: Senior Trust Officer
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