Exhibit 3.4
TRUST AGREEMENT, dated as of July 1, 1998, among, COPELCO
CAPITAL INC. ("CCI," or "Servicer") and COPELCO CAPITAL FUNDING LLC 1998-1,
each as Certificateholder (the "Certificateholders"), and COPELCO CAPITAL
FUNDING CORP. XI, as the Designated Certificateholder (the "Designated
Certificate Holder") and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as owner trustee (the "Owner Trustee").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Capitalized Terms. For all purposes of this Trust
Agreement, except as otherwise expressly provided herein capitalized terms
shall have the meanings set forth below:
Administration Services Agreement shall mean the
Administration Services Agreement, dated as of July 1, 1998, between the
Issuer and Copelco Capital Funding Corp. XI, as Administrator, as the same may
be amended or supplemented from time to time.
Administrator shall mean Copelco Capital Funding Corp XI in
its capacity as Administrator under the Administration Services Agreement, or
any successor Administrator appointed pursuant to the terms of the
Administration Services Agreement.
Authorized Officer shall mean any person who is authorized
to act for such Person in matters relating to this Agreement, and whose action
is binding upon such Person and, with respect to the Issuer, Indenture
Trustee, the Owner Trustee and the Transferor, initially including those
individuals whose names appear on the respective lists of Authorized Officers
delivered on the Closing Date.
Basic Documents shall mean this Agreement, the Indenture,
and the Sale and Servicing Agreement, the Certificate of Trust, the Notes, and
other documents and certificates, determined in connection therewith.
Business Trust Law shall mean Chapter 38, Treatment of
Delaware Business Trusts of Title 12 of the Delaware Code, as amended.
Certificates shall mean any one of the certificates
designated as a certificate substantially in the form of truth in Exhibit A
hereto and executed and authenticated by the Owner Trustee.
Certificate of Trust shall mean the Certificate of Trust
filed for the Issuer pursuant to Section 3810(a) of the Business Trust Law.
Certificate Paying Agent shall mean Copelco Capital Funding
Corp. XI in its capacity as certificate paying agent, or any successor
Certificate Paying Agent.
Certificate Register shall mean the register maintained by
the Certificate Registrar in which the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates.
Certificate Registrar or Certificate Registrar and Transfer
Agent shall mean, initially, Copelco Capital Funding Corp. XI, in its capacity
as Certificate Registrar, or any successor in such capacity.
Certificateholders shall mean, initially, Copelco Capital
Inc., Copelco Capital Funding LLC 98-1, and Copelco Capital Funding Corp. XI.
Code shall mean the Internal Revenue Code of 1986, as it may
be amended from time to time, any successor statute thereto, and any
applicable U.S. Department of the Treasury temporary or final regulations
promulgated thereunder.
Closing Date shall be August ___, 1998
Designated Certificate Holder shall mean Copelco Capital
Funding Corp. XI, a special purpose Delaware corporation.
Designated Certificate shall mean the Certificate
representing at least 1% of the Initial Aggregate Certificate Balance of the
Certificates issued to the Designated Certificate Holder.
Expenses shall have the meaning assigned to such term in
Section 8.2(a) hereof.
Fiscal Year shall mean, with respect to the Issuer, the
calendar year from each January 1 to the following December 31.
Indemnified Party shall have the meaning accorded to such
term in Section 8.2(a) hereof.
Indenture shall mean the Indenture, dated as of July 1, 1998
among the Issuer, Manufacturers and Traders Trust Company, as Trustee and
Copelco Capital, Inc. as Servicer.
Initial Aggregate Certificate Principal Balance shall mean
the aggregate outstanding principal balances for all of the Certificates.
Insolvency Event shall have the meaning accorded to such
term in "Description of the Trust Agreement" in the Offering Circular.
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Issuer shall mean Copelco Capital Funding Trust 1998-A, a
special purpose business trust organized under the laws of the State of
Delaware, and its successors and assigns.
Majority of Affected Securityholders shall mean, with
respect to a proposed action in respect of the Certificates, a
Majority-in-Interest and/or Majority Certificateholders of each Class of
Certificates affected by such proposed action.
Majority Certificateholders shall have the meaning accorded
to such term in Section 4.2 hereof.
Majority-in-Interest shall mean Holders of Certificates
representing in excess of fifty percent (50%) of the aggregate Percentage
Interests of all Certificates.
Offering Circular shall mean the Offering Circular, dated as
of ___, 1998.
Opinion of Counsel shall be a written opinion of counsel,
who may be counsel for the Transferor, the Adviser or the Owner Trustee.
Owner Trustee shall mean Wilmington Trust Company, a
Delaware banking corporation, acting not in its individual capacity but solely
as trustee with respect to the Issuer, or such successor person as shall
become trustee pursuant to the applicable provisions of the Trust Agreement.
Owner Trustee Lien shall have the meaning assigned to such
term in Section 8.3 hereof.
Percentage Interest shall mean with respect to a
Certificate, a fraction, expressed as a percentage, the numerator of which is
the initial principal balance of such Certificate, and the denominator of
which is the Initial Aggregate Certificate Balance of all Certificates.
Periodic Filings shall mean any filings or submissions that
the Issuer is required to make with any state or federal regulatory agency or
under the Code.
Person shall mean any individual, partnership, limited
liability company, limited liability partnership, national banking
association, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Record Date shall mean, with respect to each Distribution
Date, the close of business on the last Business Day of the calendar month
immediately preceding the calendar month in which such Distribution Date
occurs.
Sales and Servicing Agreement shall have the meaning
assigned to such term in the Indenture.
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Seller shall mean Copelco Capital Funding LLC 98-1, a
[Delaware] limited liability company.
Transfer shall have the meaning accorded to such term in
Section 3.3 hereof.
Trust Assets shall be as defined in Section 2.3 hereof.
Trustee shall have the meaning as defined in the Indenture.
1.2. Other Definitional Provisions.
(a) All terms not defined herein shall have the meaning
assigned to such term in the Indenture. All terms defined in this Trust
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Trust Agreement and in any certificate
or other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Trust Agreement or in any such certificate or other
document, and accounting terms partly defined in this Trust Agreement or in
any such certificate or other document to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Trust Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Trust Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Trust Agreement shall refer to this Trust
Agreement as a whole and not to any particular provision of this Trust
Agreement; Section and Exhibit references contained in this Trust Agreement
are references to Sections and Exhibits in or to this Trust Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Trust Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
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ARTICLE II
ORGANIZATION
2.1. Name. The trust created hereby ("Issuer" or "Trust")
shall be known as "Copelco Capital Funding Trust 1998-A" in which name each of
the Trust, and the Owner Trustee, in the name and on behalf of the Trust,
shall have power and authority and is hereby authorized and empowered, subject
to the limitations described herein, to acquire, hold, maintain, protect,
preserve and dispose of the Trust Assets, execute contracts and other
instruments on behalf of the Issuer and xxx and be sued.
2.2. Office. The office of the Issuer shall be in care of
the Owner Trustee, addressed to Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at
such other address as the Owner Trustee may designate by notice to the
Certificateholders.
2.3. Limited Special Purposes and Powers. The sole purpose
of the Issuer is, and the Issuer shall have power and authority and is hereby
authorized and empowered, without the need for further action on the part of
the Issuer, and the Owner Trustee, in the name and on behalf of the Issuer,
shall have power and authority, and is hereby authorized and empowered, to do
or cause to be done all acts and things necessary, appropriate, or convenient
to cause the Issuer to engage in the following activities: (i) to execute,
issue, and deliver the Notes pursuant to the Indenture, (ii) to execute,
issue, and deliver the Certificates pursuant to this Trust Agreement, (iii) to
execute, issue, and deliver the Certificates to the Seller, the Designated
Certificateholder and CCI in consideration of the contribution of the Lease
Contracts to the Issuer by the Seller and the contribution of cash to the
Issuer by the Designated Certificateholder, (iv) to distribute to the
Certificateholders pursuant to Article V hereof any portion of the Trust
Estate remitted to the Issuer pursuant to the Sales and Servicing Agreement,
(v) to enter into, execute, deliver, and perform its obligations under the
Basic Documents and to enter into and consummate the transactions contemplated
thereby, and 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 (vi) 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 Certificateholders.
The Issuer shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Trust
Agreement or the Basic Documents.
2.4. Appointment of the Owner Trustee. The
Certificateholders and the Designated Certificate Holder hereby appoints
Wilmington Trust Company as Trustee with respect to the Issuer effective as of
the date hereof, to have all the rights, powers and duties set forth herein
and Wilmington Trust Company hereby accepts such appointment and agrees to act
as Owner Trustee hereunder.
2.5. Initial Capital Contribution of Trust Assets. The Owner
Trustee hereby acknowledges on behalf of the Issuer, receipt in trust from the
Seller as of the date hereof, of the Lease Contracts, and of the other
property now or hereafter transferred and
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assigned to the Issuer pursuant to the Sales and Servicing Agreement, which
shall constitute the Trust Assets (the "Trust Assets") of the Issuer. The
Owner Trustee also acknowledges on behalf of the Issuer receipt of the Initial
Deposit in cash from the Seller and $____________ in cash from the Designated
Certificate Holder. The capital contributed by the Designated Certificate
Holder shall be deposited in the Reserve Account in accordance with the
Indenture. The Designated Certificate Holder shall pay or cause to be paid
organizational expenses of the Issuer as they may arise or shall, upon the
request of the Owner Trustee (as such or in its individual capacity), promptly
reimburse the Owner Trustee (as such or in its individual capacity) for any
such expenses paid by the Owner Trustee (as such or in its individual
capacity).
2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Assets in trust upon and subject to the terms and
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Issuer constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code and that this Trust
Agreement constitutes the governing instrument of the Issuer. It is the
intention of the parties hereto that, for income and franchise tax purposes,
the Issuer shall be treated as a partnership, with the partners of the
partnership being the Certificateholders and the Notes being debt of the
Partnership. The Issuer will not elect, for income and franchise tax purposes,
to be treated as an entity other than a partnership. Except as otherwise
provided in this Trust Agreement, the rights of the Certificateholders (other
than the Designated Certificate Holder) will be those of limited partners and
the rights of the Designated Certificate Holder, subject to Sections 2.10 and
6.6 hereof, will be those of a general partner in a partnership formed under
the Delaware Revised Uniform Limited Partnership Act. The parties agree that,
unless otherwise required by appropriate tax authorities, the Issuer will file
or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Issuer as a partnership for
such tax purposes.
2.7. Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Issuer shall be located in the State of
Delaware. The Issuer shall not have any employees. Payments received by the
Owner Trustee on behalf of the Issuer will be received only in the State of
Delaware and payments will be made by the Owner Trustee on behalf of the
Issuer only from the State of Delaware. The Issuer's only office is and will
be at the office of the Owner Trustee as set forth herein.
2.8. Title to Property. Legal title to all the Trust Assets
shall be vested at all times in the Issuer as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the
Trust Assets to be vested in the Owner Trustee in which case title shall be
deemed to be vested in the Owner Trustee, or a co-trustee or separate trustee,
as the case may be. The Certificateholders shall not have legal title to any
part of the Trust Assets. No transfer, by operation of law or otherwise, of
any right, title or interest of the Certificateholders to and in their
ownership interest in the Trust Assets shall operate to terminate this Trust
Agreement or the trusts hereunder or entitle
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any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Assets.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
3.1. Series and Class of Beneficial Interests: Issuance of
Certificates.
(a) The Certificates shall be issued in a single class and
series, which shall be designated as "Copelco Capital Funding Trust
Certificates, Series 1998-A". The Certificates shall be issued in minimum
denominations of $1,000,000 and in integral multiples of $100,000 in excess
thereof; provided, however, that the Designated Certificate shall be issued
pursuant to Section 3.9 in a single Certificate, the Certificate issued to the
initial Certificateholders may be issued in a different denomination, and one
other Certificate of each class of Certificates may be issued in different
denominations. There shall at all times be at least two Holders of
Certificates.
(b) Each Certificate shall be in substantially the form of
EXHIBIT A hereto and shall be executed by manual signature in the name and on
behalf of the Trust by one of the Owner Trustee's Authorized Officers or by an
Authorized Officer of the Administrator on behalf of the Issuer. Certificates
bearing the manual signature of an individual who was, at the time when such
signature was affixed, authorized to sign on behalf of the Owner Trustee or
the Administrator shall bind the Issuer, notwithstanding that such individual
has ceased to be so authorized prior to the delivery of such Certificate or
does not hold such office at the date of such Certificate. Each Certificate
shall be dated the date of its issuance.
3.2. Registration and Transfer of Certificates.
(a) The Certificate Registrar shall maintain at its chief
executive office a register ("Certificate Register") for the registration and
Transfer of Certificates. Each Certificate shall be transferable only upon the
Certificate Register. No transferee of a Transfer shall have any right or
power to consent or vote as provided hereunder, unless and until such time as
such Transfer is registered.
(b) Subject to Section 3.3 hereof, the registered
Certificateholder (in person or by his attorney duly authorized in writing) of
any Certificate may Transfer all or any portion of the beneficial interest in
the Issuer evidenced by such Certificate only upon surrender thereof
(accompanied by a written instrument of Transfer and with such signature
guarantees and evidence of authority of the Persons signing the instrument of
Transfer as the Certificate Registrar may reasonably require) to the
Certificate Registrar accompanied by any other documents required hereunder.
Promptly upon the receipt of such documents and receipt by the Certificate
Registrar of the transferor's Certificate, the Certificate Registrar shall
record in the Certificate Register the name of the transferee as a
Certificateholder. Subject to satisfaction of such conditions and to the
provisions of Section 3.9 below with respect to the Designated Certificate,
upon surrender for
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registration of transfer of any Certificate at the office or agency maintained
by the Certificate Registrar, the Owner Trustee pursuant to written
instructions of the Certificate Registrar or Administrator on behalf of the
Issuer shall execute and deliver in the name of the designated transferee or
transferees one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of the issuance by the Issuer. Subsequent to a
Transfer and upon the issuance of the new Certificate or Certificates, the
Certificate Registrar shall cancel and destroy the Certificate surrendered to
it in connection with such Transfer.
3.3. Limitation On Transfer of Certificates.
(a) The Certificates will only be sold and transferable to
United States persons. Transferees (including nominees of beneficial owners)
of the Certificates must represent that they are individuals or entities that
are U.S. Persons (generally, citizens or residents of the U.S. and
corporations or partnerships organized under the laws of the United States),
and each must provide a certificate of non-foreign status under penalties of
perjury.
(b) No sale, assignment, pledge, hypothecation, transfer or
other disposition ("Transfer") of a Certificate or any beneficial interest in
the Issuer shall be made to any Person unless such Transfer is exempt from the
registration requirements of the 1933 Act and any applicable state securities
laws or is made in accordance with said 1933 Act and state laws. In the event
of any such Transfer, the Certificate Registrar shall require the transferee
to execute (i) an investment letter (in substantially the form attached hereto
as EXHIBIT B) in the form and substance reasonably satisfactory to the
Certificate Registrar, certifying to the Issuer, the Owner Trustee and the
Certificate Registrar that such transferee is a "qualified institutional
buyer" under Rule 144A under the 1933 Act, which investment letter shall not
be an expense of the Issuer, the Owner Trustee, the Certificate Registrar, the
Servicer, the Administrator, the Seller or the Designated Certificate Holder
and (ii) the Certificate of Non-Foreign Status and ERISA (in substantially the
form attached hereto as EXHIBIT C acceptable to and in form and substance
reasonably satisfactory to the Certificate Registrar, which certificate shall
not be an expense of the Issuer, the Owner Trustee, the Certificate Registrar,
the Servicer, the Administrator, the Seller or the Designated Certificate
Holder. The Holder of a Certificate desiring to effect such Transfer shall,
and does hereby agree to, indemnify the Issuer, the Owner Trustee in its
individual capacity, the Certificate Registrar, the Servicer, the
Administrator, the Seller and the Designated Certificate Holder against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws or otherwise is not made in
accordance with this Agreement.
(c) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(d) Each Certificate shall bear the following legend:
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THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (" 1933 ACT") OR THE SECURITIES LAWS OR "BLUE SKY"
LAWS OF ANY STATE AND HAS BEEN SOLD IN RELIANCE UPON AN EXEMPTION
PROVIDED IN THE 1933 ACT AND APPLICABLE STATE SECURITIES AND BLUE SKY
LAWS. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR
DISPOSED OF (EACH A "TRANSFER") UNLESS SUBSEQUENTLY REGISTERED UNDER
THE 1933 ACT AND APPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE (AND EITHER
THE CERTIFICATE REGISTRAR, THE ISSUER OR THE OWNER TRUSTEE MAY
REQUIRE AN OPINION OF COUNSEL TO SUCH EFFECT PRIOR TO EFFECTING ANY
SUCH TRANSFER). EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE 1933 ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE 1933 ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE ISSUER'S
AND THE CERTIFICATE REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (A) PURSUANT TO THIS CLAUSE (II) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (B) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
EACH SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR, OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE. TRANSFER OF THIS CERTIFICATE IS SUBJECT TO
COMPLIANCE WITH ADDITIONAL REQUIREMENTS SET FORTH IN SECTION 3.3 OF
THE TRUST AGREEMENT (DEFINED BELOW).
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(e) No Certificate (or any interest therein) may be
Transferred (including, without limitation, by pledge or hypothecation),
directly or indirectly, to any Person:
(a) (1) unless such transferee certifies in an Officer's
Certificate to the Certificate Registrar, the Issuer and the Owner
Trustee (and in a form reasonably acceptable to the Certificate
Registrar, the Issuer and Owner Trustee) that such Person is either
(x) a qualified institutional buyer as defined in Rule 144A under
the 1933 Act, or (y) a Person (other than the Rating Agency)
involved in the organization and operation of the Issuer or an
affiliate, as defined in Rule 405 under the 1933 Act, of such Person
within the meaning of Rule 3a-7 under the 1940 Act (collectively,
the "Section 3.3(e)(A) Restriction"); and (2) if requested by the
Certificate Registrar, the Issuer or the Owner Trustee, the
transferee delivers an Opinion of Counsel to the effect of the
foregoing; or
(b) unless prior to such Transfer the Owner Trustee has both
(x) received an Opinion of Counsel that the Issuer is not, and after
giving effect to such Transfer, will not be an "investment company"
as defined in the 1940 Act, and (y) waived, at the written direction
of the Administrator, the Section 3.3(e)(A) Restriction.
(f) No Certificate (or any interest therein) may be
Transferred (including, without limitation, by pledge or hypothecation),
directly or indirectly, to any Person in reliance upon the exemption from
registration under the 1933 Act contained in Rule 144A unless an Officer's
Certificate of the transferor is delivered to the Certificate Registrar, the
Issuer and the Owner Trustee, as follows: (i) the transferor reasonably
believes that the transferee is a qualified institutional buyer as defined in
Rule 144A; (ii) the registration of the Transfer to the transferee is to be
made in reliance upon the exemption from registration under the 1933 Act
contained in Rule 144A; and (iii) the transferor understands that none of the
Issuer, the Certificate Registrar or the Owner Trustee is obligated to
register the Certificates under the 1933 Act or any other securities law and
that any Transfer in violation of the provisions of this Section 3.3 shall be
void ab initio; and
(g) No Transfer of a Certificate shall be made unless the
Certificate Registrar shall have received a representation letter from the
proposed purchaser or transferee of such Certificate to the effect that such
proposed purchaser or transferee is not an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA, or Section 4975 of the Code,
or a Person acting on behalf of any such plan or using the assets of any such
plan.
(h) None of the Issuer, the Certificate Registrar or the
Owner Trustee is obligated to register the Certificates under the 1933 Act or
any other securities law. Any Transfer in violation of the provisions of this
Section 3.3 shall be void ab initio.
3.4. Lost, Stolen, Mutilated or Destroyed Certificates. If
(i) any mutilated Certificate is surrendered to the Owner Trustee, or (ii) the
Owner Trustee
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receives evidence to its satisfaction that any Certificate has been destroyed,
lost or stolen, and upon proof of ownership satisfactory to the Owner Trustee,
together with such security or indemnity as may be requested by the Owner
Trustee (as such and in its individual capacity) to save it harmless, and
provided that the Owner Trustee has no notice that the Certificate has been
acquired by a protected purchaser, the Owner Trustee, in the name and on
behalf of the Trust, shall execute and deliver in exchange for the Certificate
so mutilated, destroyed, lost or stolen, a new Certificate of like tenor and
denomination and bearing a different issue number, with such notations, if
any, as the Owner Trustee shall determine.
3.5. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of Transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving distributions pursuant
to Section 5.2 and for all other purposes whatsoever, and none of the Issuer,
the Owner Trustee, the Certificate Registrar or any Certificate Paying Agent
shall be bound by any notice to the contrary.
3.6. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Designated Certificate Holder or the Owner Trustee, within 15 days after
receipt by the Certificate Registrar of a written request therefor from the
Designated Certificate Holder or the Owner Trustee, a list, in such form as
the Designated Certificate Holder or the Owner Trustee, as the case may be,
may reasonably require, of the names and addresses of the Certificateholders
as of the most recent Record Date. If three or more Certificateholders or one
or more Holders of Certificates representing not less than 25% of the
Certificate Principal Balance of the outstanding Certificates apply in writing
to the Certificate Registrar, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their
rights under the Basic Documents or under the Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Certificate Registrar shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Certificateholders.
Each Holder, by receiving and holding a Certificate, shall be deemed to have
agreed not to hold any of the Issuer, the Designated Certificate Holder, the
Certificate Registrar or the Owner Trustee, in its individual capacity,
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
3.7. Maintenance of Office or Agency. The Certificate
Registrar shall maintain in the City of Mt. Laurel, an office or offices or
agency or agencies where Certificates may be surrendered for registration of
Transfer or exchange and where notices and demands to or upon the Owner
Trustee in respect of the Certificates and the Basic Documents may be served.
The Issuer initially designates the Office of the Administrator as its office
for such purposes. The Certificate Registrar shall give prompt written notice
to the Owner Trustee, the Designated Certificate Holder and the
Certificateholders of any change in the location of the Certificate Register
or any such office or agency. The Certificate Registrar shall immediately
furnish to the Owner
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Trustee any notices or demands to the Owner Trustee received by the
Certificate Registrar at the office maintained by it pursuant to this Section.
3.8. Certificate Paying Agent. The Certificate Paying Agent
shall make distributions to Certificateholders from amounts received by the
Certificate Paying Agent from the Collection Account pursuant to the
Indenture. The Issuer may revoke such power and remove the Certificate Paying
Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Trust Agreement or the Indenture. ____________________ shall be permitted
to resign as Certificate Paying Agent upon 30 days' written notice to the
Owner Trustee. In the event that ________ shall no longer be the Certificate
Paying Agent, the Designated Certificate Holder shall appoint a successor to
act as Certificate Paying Agent (which shall be a bank or trust company). The
Certificate Paying Agent shall return all unclaimed funds to the Issuer and
upon the removal of a Certificate Paying Agent such Certificate Paying Agent
shall also return all funds in its possession to the Issuer. Any reference in
this Agreement to the Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
3.9. Ownership by Designated Certificate Holder.
(a) The Designated Certificate Holder shall receive on the
Closing Date in consideration for the contribution to the Issuer of cash and
for undertaking the indemnities and other duties and obligations of the
Designated Certificate Holder hereunder and under the Basic Documents, a
Certificate representing at least 1% of the Initial Certificate Balance of the
Certificates (the "Designated Certificate"). The Trust shall cause the
Designated Certificate and any Successor Designated Certificate created
pursuant to Section 3.9 to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT UPON SATISFACTION OF THE CONDITIONS IN SECTION 3.9 OF THE
TRUST AGREEMENT. " For purposes of the Business Trust Law, the Designated
Certificate and any Successor Designated Certificate shall be deemed to be a
separate class of Certificates from all other Certificates issued by the
Issuer; provided that the rights and obligations evidenced by all
Certificates, regardless of class, shall, except as provided in this Section
and Sections 2.7 and 9.1 (c) and the last sentence of Section 2.5 hereof, be
identical.
(b) The Designated Certificate shall, for income and
franchise tax purposes, be treated as the general partnership interest of the
Issuer. The Designated Certificate shall at all times represent an interest in
the Issuer of not less than 1.00% of the Initial Certificate Balance
represented by all Certificates. The Designated Certificate is not divisible.
The Designated Certificate Holder may transfer the Designated Certificate if
(a) the applicable provisions of Section 3.3 are satisfied; (b) the
Certificate Registrar receives an Opinion of Counsel to the effect that the
transfer of the Designated Certificate shall not cause the Issuer to be
subject to an entity level tax; (c) a Majority-in-Interest by Certificate
Principal Balance of the outstanding Certificates (exclusive of the Designated
Certificate) approves such transfer, which will not be unreasonably withheld;
(d) the Rating Agency shall confirm in a writing delivered to the Certificate
Registrar that such Transfer shall not result in a withdrawal or downgrading
of any ratings assigned to
12
the Certificates by the Rating Agency; (e) the transferee or assignee shall
assume, pursuant to an assignment and assumption agreement executed and
delivered to the Owner Trustee, all of the obligations of the Designated
Certificate Holder hereunder; (f) the transferee or assignee shall have a
currently effective charter restricting its operations and activities, and
shall make covenants substantially similar to those set forth in the
organizational documents of the Designated Certificate Holder; and (g) the
Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel
to the effect that the conditions precedent to such transfer in this Trust
Agreement have been satisfied.
ARTICLE IV
CONCERNING THE CERTIFICATEHOLDERS
4.1. Action by Certificateholders with Respect to Certain
Matters. Without limiting the rights of Certificateholders under Section 4.2
hereof, the Certificateholders shall have no right, power and authority to
call meetings of Certificateholders or to direct the Owner Trustee in the
management of the affairs of the Issuer except as expressly provided herein
and then only to the extent consistent with the limited purposes of the Issuer
as set forth in Section 2.3 hereof. Without limiting the generality of the
foregoing, and except for the acts described in clauses (iv) and (v) below,
the Owner Trustee shall not have the power without the prior consent of the
Certificateholders to (i) terminate the Issuer, except in accordance with
Section 9.1 hereof; (ii) execute on behalf of the Issuer any agreement,
instrument or document that would obligate the Issuer to make a payment or
payments in excess of $2,500, whether in consideration of services rendered to
the Issuer or property acquired by the Issuer or otherwise, except pursuant to
the specific authority granted to the Owner Trustee by Section 6.3 hereof;
(iii) pledge, bargain, sell, warrant, alienate, remise, convey, assign,
transfer, or create or xxxxx x xxxx upon or security interest in or a right of
set-off against, Trust Property (except in connection with the transactions
contemplated by the Indenture); (iv) do any act in contravention of this Trust
Agreement or any applicable law or regulation; (v) do any act which would make
it impossible to carry on the ordinary administration of the Issuer; (vi)
confess a judgment against the Issuer; (vii) possess Trust Assets, or assign
the Issuer's right in specific property, for other than a Trust purpose;
(viii) admit a Person as an additional or successor trustee of the Issuer,
except in accordance with Sections 10.1 and 10.2 hereof; (ix) admit a Person
as an additional or successor Certificateholder of the Issuer, except in
accordance with Article III hereof; (x) cause the Issuer to lend any funds to
any Person; (xi) change the Issuer's purposes and powers from those set forth
in Section 2.3 hereof; (xii) initiate any claim or lawsuit by the Issuer
(except claims or lawsuits brought in connection with the collection of the
Lease Contracts) or compromise any action, claim or lawsuit brought by or
against the Issuer (except with respect to the aforementioned claims or
lawsuits or collection of the Lease Contracts); (xiii) elect to file an
amendment to the Certificate of Trust (unless such amendment is required to be
filed under Chapter 38 of Title 12 of the Delaware Code); (xiv) amend, change
or modify any Basic Document, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would not
materially adversely affect the interests of the Certificateholders; (xv)
consent to the
13
calling or waiver of any default or event of default under any Basic Document;
or (xvi) consent to the assignment by the Trustee, or the Servicer of their
respective obligations under any Basic Document.
Additionally, the Issuer shall: (i) not commingle its assets
with those of any other entity; (ii) maintain its financial and accounting
books and records separate from those of any other entity; (iii) except as
expressly set forth herein, pay its indebtedness and operating expenses from
its own funds; (iv) not pay the indebtedness, operating expenses and
liabilities of any other entity; (v) maintain appropriate minutes or other
records of all appropriate actions; (vi) maintain its office separate from the
offices of the Designated Certificate Holder or any Affiliate of the
Designated Certificate Holder; (vii) not become involved in the day-to-day
management of another Person; (viii) conduct all business correspondence in
its own name; and (ix) not act as agent for any other person except pursuant
to contractual documents indicating such capacity.
4.2. Majority Control. Unless unanimous action of the
Certificateholders is expressly required by the terms of this Trust Agreement,
any action which may be taken, or any consent or instructions which may be
given by the Certificateholders under this Trust Agreement may be taken or
given by the registered Certificateholders holding Certificates representing
in the aggregate more than fifty percent (50%) of the Certificate Principal
Balance of all outstanding Certificates at the time of such action (in each
such case, the "Majority Certificateholders"). Any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be
effective if signed by the Majority Certificateholders at the time of the
delivery of such notice. The Owner Trustee shall not be required to give
notice to the other Certificateholders of any action pursuant to the direction
of the Majority Certificateholders as a condition to the effectiveness of such
action, but shall promptly, upon its receipt thereof, deliver copies of all
such notices to all Certificateholders.
4.3. Representations, Warranties and Covenants.
(a) The Designated Certificate Holder hereby represents and
warrants to the Owner Trustee (as such and in its individual capacity) as
follows:
(i) The Issuer is not, and will not be upon conveyance of the
Trust Assets to the Owner Trustee, an "Investment Company" or under
the "control" of an "Investment Company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(ii) This Trust Agreement has been duly and validly
authorized, executed and delivered by, and constitutes a legal,
valid and binding agreement of the Designated Certificate Holder,
enforceable in accordance with its terms.
(b) Each Certificateholder, prior to the acceptance of a
Certificate whether from the Issuer or pursuant to a transfer shall (i) comply
with the provisions of Section 3.3(f) hereof, (ii) establish its non-foreign
status by submitting to the Issuer and the Owner Trustee an IRS Form W-9 and a
completed Certificate of Non-Foreign Status
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and ERISA in substantially the form set forth as EXHIBIT C hereto and (iii) to
the extent such Certificateholder is (x) an Affiliate of the Seller (other
than the Designated Certificateholder, the Seller, or CCI), (y) the Holder of
Certificates representing more than 49% of the beneficial ownership interests
of the Issuer, and (z) acting as Servicer or Administrator, make the
representations, warranties, covenants and agreements set forth in Schedule A
hereto.
ARTICLE V
APPLICATION OF TRUST FUNDS
5.1. Distributions.
(a) On each Payment Date, the Certificate Paying Agent shall
distribute to each Certificateholder its pro rata share of payments received
by the Issuer as provided in the Indenture. All distributions shall be made on
a pro rata basis based upon Percentage Interests.
(b) In the event that any withholding tax is imposed on the
distributions (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with the Indenture. The Certificate Paying Agent is hereby
authorized and directed to retain or cause to be retained from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Issuer (but such authorization
shall not prevent the Issuer or the effected Certificateholder with the
consent of the Designated Certificate Holder), from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent 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
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
5.2. Method of Payment. Distributions required to be made to
Certificateholders on any Payment Date as provided in the Indenture shall be
made to each Certificateholder of record on the preceding Record Date either
by, in the case of any Certificateholder owning Certificates, other than the
Designated Certificate, having denominations aggregating at least $500,000,
wire transfer, in immediately available funds, to the account of such Holder
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date
or, if not, by check mailed to such Certificateholder at the address of such
Holder appearing in the Certificate Register. All distributions in respect of
the initial Designated Certificate shall be made to the Designated Certificate
Holder or its permitted transferee,
15
as the case may be, by wire transfer, in immediately available funds, to the
account of such entity at a bank or other entity having appropriate facilities
therefor, as specified in written instructions to the Certificate Paying Agent
on the fifth Business Day prior to the first Payment Date.
5.3. Statements to Certificateholders. On each Payment Date,
the Certificate Paying Agent shall send to each Certificateholder the
statement or statements provided to the Owner Trustee, the Certificate Paying
Agent and the Trustee by the Servicer pursuant to the Indenture with respect
to such Payment Date.
ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
6.1. General Authority. The Owner Trustee, in the name and
on behalf of the Trust, shall have power and authority, and hereby is
authorized and empowered to execute and deliver the Basic Documents to which
the Issuer is or is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Issuer is or is to be a party and any amendment or other agreement or
instrument described herein, in each case, in such form as the Administrator
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee, in the name and on
behalf of the Trust, shall have power and authority, and hereby is authorized
and empowered, but shall not be obligated, to take all actions required of the
Issuer pursuant to the Basic Documents. The Owner Trustee, in the name and on
behalf of the Trust, shall have power and authority, and hereby is further
authorized and empowered from time to time to take such action as the
Administrator directs in writing with respect to the Basic Documents.
6.2. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Trust Agreement and the Basic Documents to which
the Issuer is a party and to administer the Issuer in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Trust Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator has
agreed in the Administration Agreement to perform such acts or to discharge
such duties of the Owner Trustee or the Issuer hereunder or under any Basic
Document, and the Owner Trustee shall not be held liable in its individual
capacity for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement. The Designated Certificate
Holder may delegate its duties hereunder; provided, however, that such
delegation of duties shall not relieve the Designated Certificate Holder of
its obligations hereunder.
6.3. Specific Authority. The Owner Trustee, in the name and
on behalf of the Trust, shall have power and authority, and is hereby
authorized and empowered to take the following action:
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(a) execute and cause to be delivered for filing with the
office of the Secretary of State of the State of Delaware a Certificate of
Trust of the Issuer pursuant to Section 3810 of Title 12 of the Delaware Code;
(b) take all action and make all Periodic Filings in all
appropriate government offices necessary or desirable to maintain the valid
existence of the Issuer under Chapter 38 of Title 12 of the Delaware Code;
(c) acquire the Lease Contracts pursuant to the Sales and
Servicing Agreement;
(d) on the Closing Date, execute, issue and deliver the
Certificates [and distribute the proceeds thereof ] to the Seller, the
Designated Certificateholder and CCI; and
(e) on the Closing Date, pledge and assign to the Indenture
Trustee under the Indenture for the benefit of the holders of the Notes all
right, title, interest in and to the agreements, instruments, powers, rights,
authority or property constituting the Trust Assets.
[Upon execution, issuance, and delivery of a Certificate in accordance with
this Section, such Certificate shall be duly authorized, validly issued and
outstanding, fully paid and nonassessable, and entitled to the benefits of
this Agreement.]
6.4. Administration Services Agreement; Accounting and
Reports to the Certificateholders, the Internal Revenue Service and Others;
Available Information; Servicing Agreement.
(a) The Trust shall enter into an Administration Services
Agreement with Copelco Capital Funding Corp. XI, as the Administrator, which
Administration Services Agreement shall obligate the Administrator (i) to
maintain or cause to be maintained the books and records of the Issuer on a
calendar year basis on the accrual method of accounting, (ii) to deliver or
cause to be delivered to each Certificateholder, within 60 days of the end of
each Fiscal Year, a copy of the annual financial statement, if any, of the
Issuer for such Fiscal Year, (iii) to file or cause to be filed such tax
returns relating to the Issuer (including information returns), and make such
elections as may from time to time be permitted or required under any
applicable state or federal statute or rule or regulation thereunder, (iv) to
cause such tax returns to be signed in the manner required by law, and (v) to
collect or cause to be collected or withhold or cause to be withheld any
withholding tax required by the Code to be withheld by the Owner Trustee with
respect to distributions to Certificateholders who are nonresident aliens or
foreign corporations. The Trust also shall enter into the Sales and Servicing
Agreement, which Sales and Servicing Agreement shall obligate the Servicer to
provide certain administrative, servicing and collection supervision services
in connection with the Lease Contracts.
(b) The Designated Certificate Holder shall cause the Issuer
to file federal and state income tax returns and information statements as a
partnership for each
17
of its taxable years. Within 90 days after the end of each calendar year, the
holder of the Designated Certificate shall cause the Issuer to provide to each
Certificateholder an Internal Revenue Service Form " K- 1" or any successor
schedule and supplemental information, if required by law, to enable each
Certificateholder to file its federal and state income tax returns. The
Designated Certificate Holder shall serve as tax matters partner for the
Issuer.
(c) Separate capital accounts shall be maintained for each
Certificateholder in accordance with tax accounting principles. Each such
account shall initially equal the amount of money and the fair market value of
property contributed to the Issuer by the Certificateholder for its interest
in the Issuer and shall be (i) increased by the distributive share of profits
and capital gains of such Certificateholder, and (ii) decreased by the amount
of any cash and the fair market value of any non-cash assets distributed to
such Certificateholder by the Issuer pursuant to this Trust Agreement, and by
such Certificateholder's distributive share of losses.
The fiscal year of the Issuer shall end on the 31st day of
December in each year, unless otherwise required by the Code. For each fiscal
year of the Issuer, net profits shall be allocated among the
Certificateholders (including the Designated Certificate Holder), in such
manner as to cause their ending capital accounts (prior to any reduction for
distributions for such year and to the extent possible) to reflect their
respective rights to current and future distributions with respect to income
and the return of their investment. The intent of such allocation is to cause
each Certificateholder, other than the Designated Certificate Holder, to be
allocated an amount of net profits equal to the amount accrued in favor of
such Certificateholder pursuant to Sections ___ and ___ of the Indenture, and
for any remaining amount of net profits to be allocated to the Designated
Certificate Holder. For each fiscal year of the Issuer, net losses shall be
allocated among the Certificateholders in such manner as to reflect the order
and amount in which they would respectively bear the economic burden of such
losses, and then in accordance with their relative Percentage Interest.
The partnership tax returns of the Issuer shall be prepared
in such a manner as to fairly reflect the respective interest in the Issuer of
each Certificateholder in accordance with the principles of the regulations
under Code Section 704(b) and the preceding paragraph. Any unexpected
adjustments, allocations or distributions shall be offset by allocations of
items of income and gain as quickly as possible in accordance with the
qualified income offset provisions of the Code Section 704(b) regulations.
If during any fiscal year of the Issuer there is a change in
any Certificateholder's interest as a result of the issuance, transfer or
redemption of any Certificates, profits and losses shall be allocated among
the Certificateholders so as to reflect their varying interest in the Issuer
during the period. The allocation shall be made using the "interim closing of
the books" method or any other method permissible under Code Section 706
selected by the Administrator. The Administrator shall determine when any
transferee of a Certificate shall be deemed admitted to the "partnership" for
federal income tax purposes. Any transferee shall succeed to that portion of
the assignor's capital account attributable to the interest so transferred.
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The maintenance of capital accounts by the Issuer is solely
for the preparation of its income tax returns, and is not intended to confer
rights upon any third parties. No Certificateholder shall have, by reason of
its capital account, any right to demand or receive any property or cash from
the Issuer or any obligation to contribute such items to the Issuer. No
creditor of the Issuer shall be deemed a third party beneficiary of any
obligation of any Certificateholder by reason of its capital account to
contribute capital or make Lease Contracts or advances to the Issuer.
6.5. Signature of Returns. The Owner Trustee shall sign on
behalf of the Issuer the tax returns and other Periodic Filings of the Issuer
as the same may be presented to it, and shall be entitled to rely and fully
protect (both as such and in its individual capacity) in so relying thereupon,
unless applicable law requires an owner to sign such documents, in which case
the Designated Certificate Holder and not the Owner Trustee shall be presented
with and shall sign such document.
6.6. Right to Receive Instructions. In the event that the
Owner Trustee is unable to decide between alternative courses of action, or is
unsure as to the application of any provision of this Trust Agreement or any
Basic Document, or 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 Trust Agreement or any Basic Document permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action which the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the registered
Certificateholders requesting instructions in accordance with Section 4.2
hereof and, to the extent that the Owner Trustee shall have acted, or
refrained from acting, in good faith in accordance with any such instructions
received from the registered Certificateholders, the Owner Trustee shall not
be liable, in its individual capacity, on account of such action or inaction
to any Person. If the Owner Trustee shall not have received appropriate
instructions within ten days of such notice (or within such shorter period of
time as may be specified in such notice) the Owner Trustee may, but shall be
under no duty to, take or refrain from taking such action, as the Owner
Trustee shall deem to be in the best interests of the Certificateholders, and
the Owner Trustee shall have no liability, in its individual capacity, to any
Person for such action or inaction.
6.7. No Duties Except as Specified in this Trust Agreement
or in Instructions. Notwithstanding any other provision herein or elsewhere,
the Owner Trustee shall not have any duty or obligation to manage, make any
payment in respect of, register, record, sell, reinvest, administer, dispose
of, create, perfect or maintain title or any security interest in, or
otherwise deal with the Trust Assets or the Trust, to prepare or file any
report or other document, or to otherwise take or refrain from taking any
action under, or in connection with, this Agreement, any Basic Document, or
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Trust Agreement and no implied
duties or obligations shall be read into this Trust Agreement against the
Owner Trustee. The Owner Trustee, in its individual capacity, nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any valid liens on any part of the Trust
19
Assets which result from valid claims against the Owner Trustee personally
that are not related to the ownership or the administration of the Trust
Assets or the transactions contemplated by the Basic Documents.
6.8. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell,
reinvest, 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 Trust Agreement, or (ii) in
accordance with instructions delivered to the Owner Trustee pursuant to
Section 4.2 or Section 6.6 hereof.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
7.1. Acceptance of Trusts and Duties.
(a) The Owner Trustee accepts the trust hereby created and
agrees to perform its duties hereunder with respect to the same but only upon
the terms of this Trust Agreement. Except (1) for the Owner Trustee's own
willful misconduct or gross negligence, (2) for liabilities arising from the
failure by the Owner Trustee, in its individual capacity, to perform
obligations expressly undertaken by it in the last sentence of Section 6.7
hereof, or (3) for taxes, fees or other charges on, based on or measured by
any fees, commissions or compensation received by the Owner Trustee, in its
individual capacity, in connection with any of the transactions contemplated
by this Trust Agreement or the Basic Documents, the Owner Trustee shall not be
personally liable under any circumstances, including, without limitation:
(i) for any error of judgment made in good faith by the Owner
Trustee;
(ii) for any action taken or omitted to be taken by the Owner
Trustee in good faith in accordance with the instructions of the
Certificateholders made in accordance with Section 4.2 hereof;
(iii) for any representation, warranty, covenant, agreement or
indebtedness of the Issuer under any Basic Document;
(iv) for or in respect of the validity or sufficiency of this
Trust Agreement or for the due execution hereof by any party hereto
other than the Owner Trustee, or for the form, character,
genuineness, sufficiency, value or validity of any Trust Assets, or
for or in respect of the validity or sufficiency of the Basic
Documents; and
(v) for any action or inaction of the Administrator, the
Designated Certificateholder, or the Servicer, and the Owner Trustee
shall not be responsible for performing or supervising the
performance of any obligation under this Trust
20
Agreement or any Basic Document that is required to be performed by
the Administrator under the Administration Services Agreement or by
the Servicer under the Servicing Agreement.
(b) No provision of this Trust Agreement (other than Section
6.7 hereof) shall require the Owner Trustee to expend or risk its personal
funds or otherwise incur, in its individual capacity, any financial liability
in the performance of any of its rights or powers hereunder, 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 in its individual capacity.
(c) Notwithstanding anything to the contrary contained
herein or in the Lease Contracts or any other Basic Document, the Owner
Trustee shall not be required to take any action in any jurisdiction other
than the State of Delaware if the taking of such action would (1) require the
consent or approval or authorization or order of or the giving of notice to,
or the registration with or taking of any action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the
State of Delaware; (2) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by the Owner Trustee; or (3) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of action arising from acts unrelated to the consummation of the transactions
by the Owner Trustee contemplated hereby or by any Basic Document.
7.2. Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders, promptly upon receipt thereof, duplicates
or copies of all material reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
hereunder (other than documents originated by or otherwise furnished to such
Certificateholders).
7.3. Reliance; Advice of Counsel.
(a) The Owner Trustee conclusively may rely on and shall be
protected, in its individual capacity, in acting or refraining from acting
when doing so, in each case in accordance with any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed by
it to be signed by the proper party or parties. 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 manner or ascertainment of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or any assistant treasurer or the secretary or any assistant
secretary of the relevant Person, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee, in its
individual capacity, for any action taken or omitted to be taken by it in good
faith in reliance thereon.
21
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations hereunder or
under any of the Basic Documents, the Owner Trustee (i) may act directly or,
at the expense of the Issuer (subject to Section 4.1 (ii) hereof), through
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable, in its individual capacity, for the
default 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, at the expense of the Issuer (subject to Section 4.1 (ii) hereof),
consult with counsel, accountants and other skilled persons to be selected
with reasonable care and employed by it, and the Owner Trustee shall not be
liable, in its individual capacity, for anything done, suffered or omitted in
good faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons. The Owner Trustee shall have no duty to
monitor or supervise the Administrator, the Designated Certificateholder, any
co-trustee or separate trustee, the Certificate Registrar, the Certificate
Paying Agent, the Servicer, the Trustee, any agent or independent contractor
of the Trust, any delegate of any trustee, or any other Person.
7.4. Not Acting in Individual Capacity. Except as expressly
provided in this Article VII, in accepting the trusts hereby created the Owner
Trustee acts solely as 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 Trust Agreement or the Basic Documents shall
look only to the Trust Assets for payment or satisfaction thereof.
7.5. Covenant Not to File a Bankruptcy Petition. The Owner
Trustee hereby agrees that until one year and one day after such time as the
Notes are indefeasably paid in full, it shall not (i) institute the filing of
a bankruptcy petition against the Issuer based upon any claim in its favor
arising hereunder or under the Basic Documents; (ii) file a petition or
consent to a petition seeking relief on behalf of the Issuer under the
Bankruptcy Code; (iii) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of the Issuer or a
substantial portion of the property of the Issuer; (iv) make any assignment
for the benefit of the Issuer's creditors; or (v) cause the Issuer to admit
its inability to pay its debts generally as they become due.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
8.1. Owner Trustee's Fees and Expenses. The Owner Trustee
shall be entitled to such compensation and expense reimbursements as shall be
set forth in a separate agreement between the Owner Trustee and the Seller.
8.2. Indemnification. The Designated Certificate Holder
shall be liable for, and hereby agrees to indemnify the Owner Trustee, in its
individual capacity, and any co-trustee or separate trustee appointed pursuant
to Section 10.2 hereof and their
22
respective successors, assigns, directors, officers, employees, agents and
servants (each an "Indemnified Party"), from and against, any and all
liabilities, obligations, losses, damages, taxes (other than taxes incurred by
such Indemnified Party as the result of the payment of fees and expenses
pursuant to Section 8.1 hereof), claims, actions, suits, costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may be imposed on, incurred
by or asserted at any time against an Indemnified Party (whether or not
indemnified against by other parties) in any way relating to or arising out of
this Trust Agreement, any Basic Document, the administration of the Trust
Assets or the action or inaction of the Owner Trustee hereunder. It is
understood and agreed that, notwithstanding the preceding sentence, the
Designated Certificate Holder shall not be required to indemnify any
Indemnified Party for Expenses arising or resulting from any of the matters
described in Section 7. l(a)(1)-(3) hereof. Without limiting the foregoing,
the Designated Certificate Holder shall indemnify the Issuer and the Owner
Trustee, in its individual capacity, against (i) any tax, interest or penalty
arising as a result of the failure to withhold taxes, and (ii) any indemnity
obligations provided for in the Sales and Servicing Agreement. The indemnities
contained in this Section 8.2 shall survive the termination of this Trust
Agreement and the resignation or removal of the Owner Trustee. The indemnities
of the Owner Trustee contained in this Section 8.2 extend only to the Owner
Trustee in its individual capacity and shall not be construed as indemnities
of the Trust Assets.
8.3. Lien on Trust Assets. Subject to the limitations
provided in Section 8.2(a), the Owner Trustee, in its individual capacity,
shall have a lien ("Owner Trustee Lien") on the Trust Assets for any indemnity
due hereunder which lien shall be prior to all other liens other than the lien
under the Indenture to secure the Notes (the "Indenture Lien"). The Issuer
Trust Lien is subordinate to the Indenture Lien.
8.4. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee, in its individual capacity, from the Trust Assets pursuant to
this Article VIII shall be deemed not to be part of the Trust Assets
immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST
9.1. Termination of Trust.
(a) The trust created hereby shall dissolve and the Trust
Assets shall be (i) if other than money, sold by the Servicer or at the
written direction of the Servicer in a commercially reasonable manner and on
commercially reasonable terms and (ii) the proceeds thereof and all money
constituting Trust Assets distributed to the Certificateholders in accordance
with their respective Percentage Interests, and this Trust Agreement (other
than Section 8.2) shall be of no further force or effect, the Trust shall
terminate, and the Owner Trustee at the written direction of the
[Administrator] shall
23
execute and file a certificate of cancellation, upon the earlier of (A) after
payment or satisfaction of the Notes and all other amounts due under the
Indenture the payment in full of the Certificates, the sale or other final
disposition of the Trust Assets and the final distribution of all moneys or
other property or proceeds of the Trust Assets in accordance with the terms of
this Trust Agreement and the Basic Documents, and (B) twenty-one (21) years
after the date of this Trust Agreement.
(b) The bankruptcy, dissolution, death or incapacity of any
Certificateholder, Administrator or Servicer shall not operate to terminate
this Trust Agreement, nor entitle such Certificateholder's, Administrator's or
Servicer'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 the
Trust Assets, nor otherwise affect the rights, obligations and liabilities of
the parties hereto.
9.2. No Termination by Certificateholders. Except as
provided in Section 9.1 hereof, no Certificateholder, individually or acting
jointly with any other Certificateholder or Certificateholders, shall be
entitled to terminate or revoke the trust established hereunder.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
10.1. Resignation of Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time without cause
by giving at least 90 days' prior written notice to the Certificateholders,
such resignation to be effective upon the acceptance of appointment by a
successor Owner Trustee under Section 10.1 (b) below. In case of the
resignation or removal of the Owner Trustee, the Administrator shall appoint a
successor Owner Trustee. If a successor Owner Trustee shall not have been
appointed within 30 days after the giving of written notice of such
resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee or the Administrator may apply to any court of
competent jurisdiction, at the expense of the Issuer, to appoint a successor
Owner Trustee to act until such time, if any, as a successor Owner Trustee
shall have been appointed as provided above. Any successor Owner Trustee so
appointed by such court shall immediately and without further act be
superseded by any successor Owner Trustee appointed as above provided within
one year from the date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall
execute and deliver to the predecessor Owner Trustee an instrument accepting
such appointment, and thereupon such successor Owner Trustee, without further
act, shall become vested with all the estates, properties, rights, powers,
duties and trust of the predecessor Owner Trustee in the trusts hereunder with
like effect as if originally named the Owner Trustee herein; but nevertheless,
upon the written request of such successor Owner Trustee, such predecessor
Owner Trustee, upon payment of all amounts payable to it in its individual
24
capacity, shall execute and deliver an instrument transferring to such
successor Owner Trustee, upon the trusts herein expressed, all the estates,
properties, rights, powers, duties and trusts of such predecessor Owner
Trustee, and such predecessor Owner Trustee shall duly assign, transfer,
deliver and pay over to such successor Owner Trustee all moneys or other
property then held or subsequently received by such predecessor Owner Trustee
upon the trusts herein expressed.
(c) Any successor Owner Trustee, however appointed, shall be
a bank or trust company incorporated and doing business within the United
States of America and having a combined capital and surplus of at least
$50,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon reasonable
or customary terms.
(d) Any corporation or other entity into which the Owner
Trustee may be merged or converted or with which it may be consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
or other entity to which substantially all the corporate trust business of the
Owner Trustee may be transferred, shall, subject to the terms of Section 10.
1(c) hereof, be the Owner Trustee under this Trust Agreement without further
act.
10.2. Appointment of Additional Owner Trustees.
(a) At any time or times, for the purpose of meeting any
legal requirements of any jurisdiction in which any of the Trust Assets may at
the time be located or if the Owner Trustee deems it necessary or advisable
for its own protection, the Administrator and the Owner Trustee each shall
have the power to appoint one or more individuals or corporations either to
act as co-trustee, or co-trustees, jointly with the Owner Trustee of all or
any part of the Trust Assets or to act as separate trustee or separate
trustees of all or any part of the Trust Assets and to vest in such person or
persons, in such capacity, such title to the Trust Assets or any part thereof,
and such rights, powers, duties, trusts or obligations as the Owner Trustee
may consider necessary or desirable, subject to the remaining provisions of
this Section 10.2.
(b) Every co-trustee or separate trustee shall, to the
extent permitted by law, be appointed pursuant to a supplemental trust
agreement substantially in the form of EXHIBIT D hereto and subject to the
following terms, namely:
(i) The Basic Documents shall be executed and delivered,
and all rights, powers, trusts, duties and obligations by this Trust
Agreement conferred upon the Owner Trustee in respect of the
custody, control of management of moneys, papers, securities and
other personal property, shall be exercised, solely by the Owner
Trustee;
(ii) All rights, powers, trusts, duties and obligations
conferred or imposed upon the trustees shall be conferred or imposed
upon and exercised or performed by the Owner Trustee, or by the
Owner Trustee and such co-trustee or
25
co-trustees, or separate trustee or separate trustees jointly, as
shall be provided in the instrument appointing such co-trustee or
co-trustees or separate trustee or separate trustees, except to the
extent that, under the 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 act or acts shall be performed by such co-trustee or
co-trustees or separate trustee or separate trustees;
(iii) Any request in writing by the Owner Trustee to any
co-trustee or separate trustee to take or to refrain from taking any
action hereunder shall be sufficient warrant for the taking, or the
refraining from taking, of such action by such co-trustee or
separate trustee;
(iv) Any co-trustee or separate trustee to the extent
permitted by law may delegate to the Owner Trustee the exercise of
any right, power, trust, duty or obligation, discretionary or
otherwise;
(v) The Owner Trustee at any time, and from time to time,
by an instrument in writing, with the concurrence of the
Administrator, may accept the resignation of, or remove, any
co-trustee or separate trustee appointed under this Section 10.2. A
successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section 10.2;
(vi) No Trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
(vii) Any demand, request, direction, appointment, removal,
notice, consent, waiver or other action in writing executed by the
Administrator and delivered to the Owner Trustee shall be deemed to
have been delivered to each such co-trustee or separate trustee; and
(viii) Any moneys, papers, securities or other items of personal
property received by any such co-trustee or separate trustee
hereunder shall forthwith, so far as may be permitted by law, be
turned over to the Owner Trustee to be held pursuant to the terms
hereof.
(viii) Any moneys, papers, securities or other items of
personal property received by any such co-trustee or separate trustee
hereunder shall forthwith, so far as may be permitted by law, be
turned over to the Owner Trustee to be held pursuant to the terms
hereof.
(c) Upon the acceptance in writing of such appointment by
any such co-trustee or separate trustee, it or he shall be vested with the
estate, right, title and interest in the Trust Assets, or portion thereof, and
with such rights, powers, duties, trusts or obligations, jointly with the
Owner Trustee (except insofar as local law makes it necessary for any such
co-trustee or separate trustee to act alone), all as shall be specified in the
instrument of appointment, subject to all the terms hereof. Every such
acceptance shall be filed with the Owner Trustee.
(d) In case any co-trustee or separate trustee shall die,
become incapable of acting, resign or be removed, the estate, right, title and
interest in the Trust Assets and all rights, powers, trusts, duties and
obligations of said co-trustee or separate trustee shall,
26
so far as permitted by law, vest in and be exercised by the Owner Trustee
unless and until a successor co-trustee or separate trustee shall be appointed
pursuant to this Section 10.2.
ARTICLE XI
MISCELLANEOUS
11.1. Supplements and Amendments.
(a) This Trust Agreement may be amended from time to time by
the parties hereto by a written instrument signed by each of them, without the
consent of any of the Certificateholders, provided that an Opinion of Counsel
for the Designated Certificate Holder (which Opinion of Counsel may, as to
factual matters, rely upon Officer's Certificates of the Designated
Certificate Holder) is addressed and delivered to the Owner Trustee, dated the
date of any such amendment, to the effect that the conditions precedent to any
such amendment have been satisfied and the Designated Certificate Holder shall
have delivered to the Owner Trustee an Officer's Certificate, dated the date
of any such Amendment, stating that the Designated Certificate Holder
reasonably believes that such amendment will not have a material adverse
effect on the Certificateholders or the Noteholders.
(b) This Agreement may also be amended from time to time
with the consent of the Majority Certificateholders if the Designated
Certificate Holder has delivered an Officer's Certificate stating that there
is no material adverse effect, 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 Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or delay the timing of, payments received that are required to be distributed
on any Certificate without the consent of the related Certificateholder, or
(ii) reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment or (iii) cause any material adverse
tax consequences to any Certificateholders or the Noteholders, without the
consent of the Holders of all such Certificates or Notes then outstanding.
(c) For so long as any of the Notes are outstanding, no
amendment of this Trust Agreement shall be effective without the written
consent thereto of the Indenture Trustee.
11.2. No Legal Title to Trust Assets in Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Assets and shall only have an undivided beneficial interest therein. No
transfer, by operation of law or otherwise, of any right, title and interest
of the Certificateholders in and to their undivided beneficial interest in the
Trust Assets hereunder shall operate to terminate this Trust Agreement or the
trusts hereunder or entitle any successor transferee to an accounting or to
the transfer to it of legal title to any part of the Trust Assets.
27
11.3. Pledge of Collateral by Trust is Binding. The pledge
of any Trust Assets to any Person by the Issuer made under any Basic Document
and pursuant to the terms of this Trust Agreement shall bind the
Certificateholders and shall be effective to transfer or convey the rights of
the Trust, the Owner Trustee and the Certificateholders in and to such Trust
Assets to the extent set forth in such Basic Document. No purchaser or other
grantee shall be required to inquire as to the authorization, necessity,
expediency or regularity of such pledge or as to the application of any
proceeds with respect thereto by the Owner Trustee.
11.4. Limitations on Rights of Others. Nothing in this Trust
Agreement, whether express or implied, shall be construed to give to any
Person other than the Owner Trustee, the Indemnified Parties, and the
Certificateholders any legal or equitable right, remedy or claim in the Trust
Assets or under or in respect of this Trust Agreement or any covenants,
conditions or provisions contained herein.
11.5. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other communications shall be
in writing and delivered by hand or mailed by certified mail, postage prepaid,
if to the Owner Trustee, addressed to: Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration, or to such other address as the Owner Trustee
may have set forth in a written notice to the registered Certificateholders;
and if to a Certificateholder, addressed to it at the address set forth for
such Certificateholder in the Certificate Register maintained by the
Certificate Registrar and, in each such case, with a copy to the Trustee at
its address set forth in the Sales and Servicing Agreement. Whenever any
notice in writing is required to be given by any party hereunder, such notice
shall be effective upon receipt by the party to whom such notice is to be
delivered.
11.6. Severability. Any provision of this Trust Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
11.7. Separate Counterparts. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
11.8. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and each Certificateholder and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
28
11.9. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
11.10. Governing Law. This Trust Agreement shall in all
respects be governed by, and construed in accordance with, the laws of the
State of Delaware (excluding conflict of law rules), including all matters of
construction, validity and performance.
[Signature page follows]
29
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY
By:
----------------------------------------
Name:
Title:
COPELCO CAPITAL FUNDING CORP. XI
By:
----------------------------------------
Name:
Title:
COPELCO CAPITAL INC.
By:
----------------------------------------
Name:
Title:
COPELCO CAPITAL FUNDING LLC 1998-1
By COPELCO CAPITAL FUNDING CORP. XI,
as Manager
By:
----------------------------------------
Name:
Title
COPELCO CAPITAL FUNDING TRUST 1998-A
TRUST AGREEMENT
Among
WILMINGTON TRUST COMPANY,
as Owner Trustee,
COPELCO CAPITAL INC.,
as Certificate Holder
COPELCO CAPITAL FUNDING LLC 98-1
as Certificate Holder
and
COPELCO CAPITAL FUNDING CORP. XI,
as Designated Certificate Holder
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS
1.1. Capitalized Terms.................................................................................1
1.2. Other Definitional Provisions.....................................................................4
ARTICLE II ORGANIZATION
2.1. Name .......................................................................................5
2.2. Office .......................................................................................5
2.3. Limited Special Purposes and Powers...............................................................5
2.4. Appointment of the Owner Trustee..................................................................5
2.5. Initial Capital Contribution of Trust Assets......................................................5
2.6. Declaration of Trust..............................................................................6
2.7. Situs of Issuer...................................................................................6
2.8. Title to Property.................................................................................6
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS
3.1. Series and Class of Beneficial Interests: Issuance of Certificates................................7
3.2. Registration and Transfer of Certificates.........................................................7
3.3. Limitation On Transfer of Certificates............................................................8
3.4. Lost, Stolen, Mutilated or Destroyed Certificates................................................10
3.5. Persons Deemed Certificateholders................................................................11
3.6. Access to List of Certificateholders' Names and Addresses........................................11
3.7. Maintenance of Office or Agency..................................................................11
3.8. Certificate Paying Agent.........................................................................12
3.9. Ownership by Designated Certificate Holder.......................................................12
ARTICLE IV CONCERNING THE CERTIFICATEHOLDERS
4.1. Action by Certificateholders with Respect to Certain Matters.....................................13
4.2. Majority Control.................................................................................14
4.3. Representations, Warranties and Covenants........................................................14
ARTICLE V APPLICATION OF TRUST FUNDS
5.1. Distributions....................................................................................15
5.2. Method of Payment................................................................................15
5.3. Statements to Certificateholders.................................................................16
ARTICLE VI AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
6.1. General Authority................................................................................16
i
6.2. General Duties...................................................................................16
6.3. Specific Authority...............................................................................16
6.4. Administration Services Agreement; Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others; Available Information;
Servicing Agreement.....................................................................17
6.5. Signature of Returns.............................................................................19
6.6. Right to Receive Instructions....................................................................19
6.7. No Duties Except as Specified in this Trust Agreement or in Instructions.........................19
6.8. No Action Except Under Specified Documents or Instructions.......................................20
ARTICLE VII CONCERNING THE OWNER TRUSTEE
7.1. Acceptance of Trusts and Duties..................................................................20
7.2. Furnishing of Documents..........................................................................21
7.3. Reliance; Advice of Counsel......................................................................21
7.4. Not Acting in Individual Capacity................................................................22
7.5. Covenant Not to File a Bankruptcy Petition.......................................................22
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE
8.1. Owner Trustee's Fees and Expenses................................................................22
8.2. Indemnification..................................................................................22
8.3. Lien on Trust Assets.............................................................................23
8.4. Payments to the Owner Trustee....................................................................23
ARTICLE IX TERMINATION OF TRUST
9.1. Termination of Trust.............................................................................23
9.2. No Termination by Certificateholders.............................................................24
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
10.1. Resignation of Owner Trustee; Appointment of Successor..........................................24
10.2. Appointment of Additional Owner Trustees........................................................25
ARTICLE XI MISCELLANEOUS
11.1. Supplements and Amendments......................................................................27
11.2. No Legal Title to Trust Assets in Certificateholders............................................27
11.3. Pledge of Collateral by Trust is Binding........................................................28
11.4. Limitations on Rights of Others.................................................................28
11.5. Notices ......................................................................................28
11.6. Severability....................................................................................28
11.7. Separate Counterparts...........................................................................28
11.8. Successors and Assigns..........................................................................28
11.9. Headings 29
11.10. Governing Law..................................................................................29
-ii-
EXHIBIT A Form of Certificate
EXHIBIT B Form of Investor Representation Letter (144A)
EXHIBIT C Form of Certificate of Non-Foreign Status and ERISA
-iii-
