AMENDED AND RESTATED TRUST AGREEMENT
by and between
XXXXXX FUNDING CORPORATION
as Trust Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of December [ ], 1999
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................................................................1
SECTION 1.01. CAPITALIZED TERMS................................................................................1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS....................................................................4
SECTION 1.03. USAGE OF TERMS...................................................................................4
SECTION 1.04. SECTION REFERENCES...............................................................................4
SECTION 1.05. ACCOUNTING TERMS.................................................................................4
ARTICLE II. ORGANIZATION..........................................................................................4
SECTION 2.01. NAME.............................................................................................4
SECTION 2.02. OFFICE...........................................................................................4
SECTION 2.03. PURPOSES AND POWERS..............................................................................4
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE.....................................................................5
SECTION 2.05. CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE.......................................................5
SECTION 2.06. DECLARATION OF TRUST.............................................................................6
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR.....................................................................6
SECTION 2.08. TITLE TO TRUST PROPERTY..........................................................................6
SECTION 2.09. SITUS OF TRUST...................................................................................6
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR............................................7
SECTION 2.11. FEDERAL INCOME TAX TREATMENT.....................................................................8
SECTION 2.12. COVENANTS OF THE TRUST DEPOSITOR.................................................................8
ARTICLE III. TRUST CERTIFICATE AND TRANSFER OF INTERESTS..........................................................9
SECTION 3.01. OWNERSHIP........................................................................................9
SECTION 3.02. THE TRUST CERTIFICATE...........................................................................10
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATE................................................10
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATE......................................10
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.........................................11
SECTION 3.06. PERSONS DEEMED OWNERS...........................................................................11
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDER'S NAME AND ADDRESSES........................................12
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY.................................................................12
SECTION 3.09. TEMPORARY TRUST CERTIFICATE.....................................................................12
SECTION 3.10. APPOINTMENT OF PAYING AGENT.....................................................................12
SECTION 3.11. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATE...............................................13
ARTICLE IV. ACTIONS BY OWNER TRUSTEE.............................................................................13
SECTION 4.01. PRIOR NOTICE TO CERTIFICATEHOLDER WITH RESPECT TO CERTAIN MATTERS...............................13
SECTION 4.02. ACTION BY OWNER WITH RESPECT TO CERTAIN MATTERS.................................................14
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY......................................................14
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER...................................................................14
ARTICLE V. APPLICATION OF TRUST FUNDS; CERTAIN DUTIES............................................................14
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT..................................................................14
SECTION 5.02. APPLICATION OF TRUST FUNDS......................................................................15
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SECTION 5.03. METHOD OF PAYMENT...............................................................................15
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST...........................................................15
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDER, THE INTERNAL REVENUE SERVICE AND OTHERS........16
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.......................................................16
ARTICLE VI. AUTHORITY AND DUTIES OF OWNER TRUSTEE................................................................16
SECTION 6.01. GENERAL AUTHORITY...............................................................................16
SECTION 6.02. GENERAL DUTIES..................................................................................16
SECTION 6.03. ACTION UPON INSTRUCTION.........................................................................17
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN INSTRUCTIONS..............................18
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS......................................18
SECTION 6.06. RESTRICTIONS....................................................................................18
ARTICLE VII. CONCERNING THE OWNER TRUSTEE........................................................................19
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES.................................................................19
SECTION 7.02. FURNISHING OF DOCUMENTS.........................................................................20
SECTION 7.03. REPRESENTATIONS AND WARRANTIES..................................................................20
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.....................................................................20
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY...............................................................21
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE, NOTES OR CONTRACTS..............................21
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATE AND NOTES...............................................22
ARTICLE VIII. COMPENSATION OF OWNER TRUSTEE......................................................................22
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES...............................................................22
SECTION 8.02. INDEMNIFICATION.................................................................................22
SECTION 8.03. SECTION 8.03....................................................................................22
ARTICLE IX. TERMINATION OF TRUST AGREEMENT.......................................................................23
SECTION 9.01. TERMINATION OF TRUST AGREEMENT..................................................................23
SECTION 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR WITHDRAWAL OR REMOVAL OF TRUST DEPOSITOR......24
ARTICLE X. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES................................................24
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.....................................................24
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE........................................................24
SECTION 10.03. SUCCESSOR OWNER TRUSTEE........................................................................25
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.......................................................26
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..................................................26
ARTICLE XI. MISCELLANEOUS........................................................................................27
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.....................................................................27
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNER........................................................28
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS................................................................28
SECTION 11.04. NOTICES........................................................................................28
SECTION 11.05. SEVERABILITY OF PROVISIONS.....................................................................30
SECTION 11.06. COUNTERPARTS...................................................................................30
SECTION 11.07. SUCCESSORS AND ASSIGNS.........................................................................30
SECTION 11.08. NO PETITION....................................................................................31
SECTION 11.09. NO RECOURSE....................................................................................31
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SECTION 11.10. HEADINGS.......................................................................................31
SECTION 11.11. GOVERNING LAW..................................................................................31
SECTION 11.12. TRUST CERTIFICATE TRANSFER RESTRICTIONS........................................................31
SECTION 11.13. TRUST DEPOSITOR PAYMENT OBLIGATION.............................................................31
EXHIBITS
Exhibit A - Form of Certificate of Trust..............................................................A-1
Exhibit B - Form of Trust Certificate.................................................................B-1
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of December [ ],
1999, is between XXXXXX FUNDING CORPORATION, a Delaware corporation, as Trust
Depositor (the "TRUST DEPOSITOR"), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as owner trustee (the "OWNER TRUSTEE").
WHEREAS, in connection herewith, the Trust Depositor is willing to
assume certain obligations pursuant hereto; and
WHEREAS, in connection herewith, the Trust Depositor is willing to
purchase the Trust Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 CAPITALIZED TERMS. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"ADMINISTRATION AGREEMENT" means the Administration Agreement, dated
as of the date hereof, among the Trust, the Trust Depositor, the Indenture
Trustee and Xxxxxx Financial, Inc., as administrator.
"AGREEMENT" means this Trust Agreement, as the same may be amended
and supplemented from time to time.
"APPLICANT" shall have the meaning set forth in Section 3.07.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the
Delaware Code, 12 DEL. CODE Section 3801 ET SEQ., as the same may be amended
from time to time.
"CERTIFICATE BALANCE" means [ ].
"CERTIFICATE DISTRIBUTION ACCOUNT" means the account established and
maintained as such pursuant to Section 5.01.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the
Trust pursuant to Section 3810(a) of the Business Trust Statute,
substantially in the form of EXHIBIT A hereto.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
"CERTIFICATEHOLDER" or "HOLDER" means with respect to a Definitive
Trust Certificate the Person in whose name the Trust Certificate is
registered in the Certificate Register.
"CLOSING DATE" means December [ ], 1999.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DEFINITIVE TRUST CERTIFICATE" shall have the meaning set forth in
Section 3.09.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" shall have the meaning assigned to such term in Section
8.02.
"FOREIGN PERSON" means any Person other than (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other
entity organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate the income of which is subject to U.S.
federal income taxation regardless of its source, or (iv) a trust whose
administration is subject to the primary supervision of a court within the
United States and which has one or more U.S. fiduciaries who have authority
to control all substantial decisions of the Trust.
"XXXXXX FINANCIAL" means Xxxxxx Financial, Inc., a Delaware
corporation.
"INDEMNIFIED PARTIES" shall have the meaning assigned to such term
in Section 8.02.
"INDENTURE" means the Indenture dated as of the date hereof between
the Trust and Norwest Bank Minnesota, N.A., as Indenture Trustee.
"NOTE DEPOSITORY AGREEMENT" means the Agreement dated as of the
Closing Date among the Trust, the Indenture Trustee, the Administrator and
DTC, as the Clearing Agency, relating to the Notes, as the same may be
amended and supplemented from time to time.
"NOTES" means the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes, the
Class D Notes and the Class E Notes in each case issued pursuant to the
Indenture.
"OWNER" means the Holder of the Trust Certificate.
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"OWNER TRUSTEE" means Wilmington Trust Company, a Delaware
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attn: Corporate Trust Administration, or such other office at such other
address as the Owner Trustee may designate from time to time by notice to the
Certificateholder, the Servicer, the Indenture Trustee, the Trust Depositor
and Xxxxxx Financial.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 3.10.
"PERSON" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof) unincorporated organization or government or any agency
or political subdivision thereof.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement, dated as of the date hereof, among the Trust, the Trust Depositor,
Xxxxxx Financial, as Servicer and as an Originator and Xxxxxx Financial
Leasing, Inc., as an Originator thereunder, and the Indenture Trustee named
therein, as the same may be amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"TAX MATTERS PARTNER" shall have the meaning provided in Section
5.06(b) hereof.
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"TRUST" means the trust established by this Agreement.
"TRUST CERTIFICATE" means the trust certificate evidencing the
beneficial equity interest of an Owner in the Trust, substantially in the
form of EXHIBIT B hereto.
"TRUST DEPOSITOR" means Xxxxxx Funding Corporation in its capacity
as Trust Depositor hereunder, and its successors.
"TRUST ESTATE" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article Two
of the Sale and Servicing Agreement, all funds on deposit from time to time
in the Trust Accounts and the Certificate Distribution Account and all other
property of the Trust from time to time, including any rights of the Owner
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Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
SECTION 1.02 OTHER DEFINITIONAL PROVISIONS. Capitalized terms used
that are not otherwise defined herein shall have the meanings ascribed
thereto in the Sale and Servicing Agreement or, if not defined therein, in
the Indenture.
SECTION 1.03 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "WRITING"
include printing, typing, lithography and other means of reproducing words in
a visible form; references to agreements and other contractual instruments
include all amendments, modifications and supplements thereto or any changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the term "INCLUDING" means "INCLUDING WITHOUT
LIMITATION".
SECTION 1.04 SECTION REFERENCES. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05 ACCOUNTING TERMS. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II.
ORGANIZATION
SECTION 2.01 NAME. The Trust created hereby shall be known as
"XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1999-2", in which name the Owner
Trustee may conduct the activities of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02 OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to
the Owner and the Trust Depositor.
SECTION 2.03 PURPOSES AND POWERS.
(a) The sole purpose of the Trust is, and the Trust shall have the
power and authority, to manage the Trust Estate and collect and disburse the
periodic income therefrom for the use and benefit of the Owner, and in
furtherance of such purpose to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the
Trust Certificate pursuant to this Agreement and to
sell the Notes and the Trust Certificate;
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(ii) with the proceeds of the sale of the Notes and the
Trust Certificate, to purchase the Contracts and
other Trust Assets, and to pay the organizational,
start-up and transactional expenses of the Trust and
to pay the balance to the Trust Depositor pursuant to
the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the Indenture and
to hold, manage and distribute to the Owner pursuant
to the Sale and Servicing Agreement any portion of
the Trust Estate released from the Lien of, and
remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) 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) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required
in connection with conservation of the Trust Estate
and the making of distributions to the Owner and the
Noteholders.
The Trust shall not engage in any activities other than in connection with
the foregoing. Nothing contained herein shall be deemed to authorize the
Owner Trustee to engage in any business operations or any activities other
than those set forth in the introductory sentence of this Section.
Specifically, the Owner Trustee shall have no authority to engage in any
business operations, or acquire any assets other than those specifically
included in the Trust Estate under Section 1.01, or otherwise vary the assets
held by the Trust. Similarly, the Owner Trustee shall have no discretionary
duties other than performing those ministerial acts set forth above necessary
to accomplish the purpose of this Trust as set forth in the introductory
sentence of this Section.
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Trust Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein, and
the Owner Trustee hereby accepts such appointment.
SECTION 2.05. CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The Trust
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Trust Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate (prior to giving effect to the conveyances described in the Sale
and Servicing Agreement) and shall be deposited in the Certificate
Distribution Account. The Trust Depositor shall pay organizational expenses
of the Trust as they may arise or shall, upon the request of the Owner
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Trustee, promptly reimburse the Owner Trustee for any such expenses paid by
the Owner Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust
Estate and collecting and disbursing the periodic income therefrom for the
use and benefit of the Owner, subject to the obligations of the Trust under
the Transaction Documents. It is the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Statute and that
this Agreement constitute the governing instrument of such business trust. It
is the intention of the parties hereto that the Trust be disregarded as a
separate entity for federal income tax purposes pursuant to Treasury
Regulation Section 301.7701-3(b)(1)(ii) as in effect for periods after
January 1, 1997. The parties agree not to take any action inconsistent with
such intended federal income tax treatment. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth herein
and in the Business Trust Statute for the sole purpose and to the extent
necessary to accomplish the purpose of this Trust as set forth in the
introductory sentence of Section 2.03.
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the
Trust Depositor shall be liable directly to and will indemnify any injured
party or any other creditor of the Trust for all losses, claims, damages,
liabilities and expenses of the Trust to the extent that the Trust Depositor
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general
partner (including any Illinois personal property replacement tax that is
imposed on the Trust as a partnership); PROVIDED, HOWEVER, that Trust
Depositor shall not be liable for any losses incurred by a Certificateholder
in the capacity of an investor in the Trust Certificate or a Noteholder in
the capacity of an investor in the Notes. In addition, any third party
creditors of the Trust (other than in connection with the obligations
described in the immediately preceding sentence for which the Trust Depositor
shall not be liable) shall be deemed third party beneficiaries of this
paragraph. The obligations of the Trust Depositor under this paragraph shall
be evidenced by the Trust Certificate described in Section 3.11.
(b) Other than to the extent set forth in Section 2.07(a), no Owner,
solely by virtue of its being the Holder of the Trust Certificate, shall have
any personal liability for any liability or obligation of the Trust.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in an Owner Trustee or Owner Trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.09. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware or the State of Illinois. All bank
accounts maintained by the Owner Trustee on behalf
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of the Trust shall be located in the State of Illinois or the State of
Delaware. The Trust shall not have any employees in any state other than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or
Minnesota and payments will be made by the Trust only from Delaware or
Minnesota. The only office of the Trust will be at the Owner Trustee
Corporate Trust Office.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor hereby represents and warrants to the Owner Trustee
that:
(a) The Trust Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business and had at all relevant times, and has, power, authority
and legal right to acquire and own the Contracts.
(b) The Trust Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(c) The Trust Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Trust Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee on behalf of the Trust as
part of the Trust Estate and has duly authorized such sale and assignment and
deposit with the Owner Trustee on behalf of the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Trust Depositor by all necessary
corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Trust Depositor, or any indenture, agreement
or other instrument to which the Trust Depositor is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon any of the
properties of the Trust Depositor pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the
Transaction Documents); nor violate any law or any order, rule or regulation
applicable to the Trust Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Trust Depositor or its properties.
(e) All approvals, authorizations, consents, orders or other actions
of any person or any governmental entity required in connection with the
execution and delivery of this Agreement and the fulfillment of the terms
hereof have been obtained.
(f) There are no proceedings or investigations pending, or to the
Trust Depositor's best knowledge threatened, before any court, regulatory
body, administrative agency or other
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governmental instrumentality having jurisdiction over the Trust Depositor or
its properties: (A) asserting the invalidity of this Agreement, any of the
other Transaction Documents or the Trust Certificate, (B) seeking to prevent
the issuance of the Trust Certificate or the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Trust Depositor of its obligations
under, or the validity or enforceability of, this Agreement, any of the other
Transaction Documents or the Trust Certificate or (D) involving the Trust
Depositor and which might adversely affect the federal income tax or other
federal, state or local tax attributes of the Trust Certificate.
SECTION 2.11. FEDERAL INCOME TAX TREATMENT.
(a) It is the intention of the Trust Depositor that the Trust be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) as in effect for periods
after January 1, 1997. The Trust Certificate constitutes the sole equity
interest in the Trust and must at all times be held by either the Trust
Depositor or its transferee as sole owner. The Trust Depositor agrees not to
take any action inconsistent with such intended federal income tax treatment.
Because for federal income tax purposes the Trust will be disregarded as a
separate entity, Trust items of income, gain, loss and deduction for any
month as determined for federal income tax purposes shall be allocated
entirely to the Trust Depositor (or subsequent purchaser of the Trust
Certificate) as the sole Certificateholder.
SECTION 2.12. COVENANTS OF THE TRUST DEPOSITOR. The Trust Depositor
agrees and covenants that during the term of this Agreement, and to the
fullest extent permitted by applicable law, that:
(a) in the event that (i) the Certificate Balance shall be reduced
by realized losses and (ii) any litigation with claims in excess of
$1,000,000 to which the Trust Depositor is a party which shall be reasonably
likely to result in a material judgment against the Trust Depositor that the
Trust Depositor will not be able to satisfy shall be commenced, during the
period beginning immediately following the commencement of such litigation
and continuing until such litigation is dismissed or otherwise terminated
(and, if such litigation has resulted in a final judgment against the Trust
Depositor, such judgment has been satisfied), the Trust Depositor shall not
pay any dividend to the Servicer, or make any distribution on or in respect
of its capital stock to the Servicer, or repay the principal amount of any
indebtedness of the Trust Depositor held by the Servicer, unless (i) after
giving effect to such payment, distribution or repayment, the Trust
Depositor's liquid assets shall not be less than the amount of actual damages
claimed in such litigation or (ii) the Rating Agencies shall not downgrade
the then existing rating on the Certificate with respect to any such payment,
distribution or repayment;
(b) it shall not, for any reason, institute proceedings for the
Trust to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to the bankruptcy of the Trust, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of
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the Trust or a substantial part of the property of the Trust or cause or
permit the Trust to make any assignment for the benefit of creditors, or
admit in writing the inability of the Trust to pay its debts generally as
they become due, or declare or effect a moratorium on the debt of the Trust
or take any action in furtherance of any such action;
(c) it shall not create, incur or suffer to exist any indebtedness
or engage in any business, except, in each case, as permitted by its articles
of incorporation, by-laws and the Transaction Documents;
(d) it shall obtain from each other party to each Transaction
Document to which it or the Trust is a party and each other agreement entered
into on or after the date hereof to which it or the Trust is a party, an
agreement by each such counterparty that prior to the occurrence of the event
specified in Section 9.01(e) such counterparty shall not institute against,
or join any other Person in instituting against, it or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United States
or any state of the United States
(e) it shall not, for any reason, withdraw or attempt to withdraw
from this Agreement, dissolve, institute proceedings for it to be adjudicated
a bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of it
or a substantial part of its property, or make any assignment for the benefit
of creditors, or admit in writing its inability to pay its debts generally as
they become due, or declare or effect a moratorium on its debt or take any
action in furtherance of any such action; and
(f) it shall not transfer the Certificate unless the transferee
agrees that it shall comply with the provisions of paragraph (b) above.
ARTICLE III.
TRUST CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01. OWNERSHIP.
(a) Upon the formation of the Trust by the contribution by the Trust
Depositor pursuant to Section 2.05 and until the issuance of the Trust
Certificate, the Trust Depositor shall be the sole beneficiary of the Trust.
The Trust Certificate must at all times be held by either the Trust Depositor
or its transferee as sole owner.
(b) No transfer of the Trust Certificate shall be made unless such
transfer is made in a transaction which does not require registration or
qualification under the Securities Act of 1933 or qualification under any
state securities or "Blue Sky" laws. Neither the Owner Trustee nor the
Certificate Registrar shall effect the registration of any transfer of the
Trust Certificate unless, (i)
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prior to such transfer the Owner Trustee shall have received a Tax Opinion,
and (ii) following such transfer, there would be no more than one holder of
the Trust Certificate and the holder of the Trust Certificate would not be a
Foreign Person, a partnership, Subchapter S corporation or grantor trust.
SECTION 3.02. THE TRUST CERTIFICATE. The Trust Certificate shall be
substantially in the form of EXHIBIT B hereto. The Trust Certificate shall be
issued in an amount equal to the Certificate Balance. The Trust Certificate
shall be executed by the Owner Trustee on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and shall
be deemed to have been validly issued when so executed. The Trust Certificate
bearing the manual or facsimile signature of individuals who were, at the
time when such signatures were affixed, authorized to sign on behalf of the
Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Trust Certificate
or did not hold such offices at the date of such Trust Certificate. The Trust
Certificate shall be dated the date of its authentication.
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATE. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Trust Depositor, in exchange for the Contracts and the other Trust
Assets, simultaneously with the sale, assignment and transfer to the Trust of
the Contracts and other Trust Assets, and the constructive delivery to the
Owner Trustee of the Contract Files and the other Trust Assets, a Trust
Certificate duly authenticated by the Owner Trustee, in the amount of the
Certificate Balance evidencing the entire ownership of the Trust, and Notes
issued by the Owner Trustee and authenticated by the Indenture Trustee in
aggregate principal amount of, in the case of (i) Class A-1 Notes, $[ ], (ii)
Class A-2 Notes, $[ ], (iii) Class A-3 Notes $[ ], (iv) Class A-4 Notes $[ ],
(v) Class B Notes, $[ ], (vi) Class C Notes, $[ ], (vii) Class D Notes, $[ ]
and (viii) Class E Notes, $[ ]. No Trust Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Trust Certificate a certificate of authentication
substantially in the form set forth in the form of Trust Certificate attached
hereto as EXHIBIT B, executed by the Owner Trustee or its authenticating
agent, by manual signature, and such certificate upon any Trust Certificate
shall be conclusive evidence, and the only evidence, that such Trust
Certificate has been duly authenticated and delivered hereunder. Upon
issuance, authorization and delivery pursuant to the terms hereof, the Trust
Certificate will be entitled to the benefits of this Agreement.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATE.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of
Trust Certificate and transfers and exchanges of the Trust Certificate as
provided herein. The Owner Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Trust Certificate and transfers
and exchanges of the Trust Certificate as herein provided. In the event that,
subsequent to the Closing Date, the Owner Trustee notifies
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the Servicer that it is unable to act as Certificate Registrar, the Servicer
shall appoint another bank or trust company, having an office or agency
located in the City of Chicago, Illinois, agreeing to act in accordance with
the provisions of this Agreement applicable to it, and otherwise acceptable
to the Owner Trustee, to act as successor Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of any Trust
Certificate at the Owner Trustee Corporate Trust Office, the Owner Trustee
shall execute, authenticate and deliver (or shall cause its authenticating
agent to authenticate and deliver), in the name of the designated transferee,
one new Trust Certificate having the same aggregate principal amount.
(c) Every Trust Certificate presented or surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder thereof or his attorney duly authorized
in writing.
(d) No service charge shall be made for any registration of transfer
or exchange of the Trust Certificate, but the Owner Trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer of the Trust Certificate.
(e) All Trust Certificates surrendered for registration of transfer
shall be canceled and subsequently destroyed by the Owner Trustee.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
CERTIFICATES. If (i) any mutilated Trust Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate, and
(ii) there is delivered to the Certificate Registrar and the Owner Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice that such Trust Certificate has been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like
tenor and fractional undivided interest. In connection with the issuance of
any new Trust Certificate under this Section, the Owner Trustee may require
the payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. Any duplicate
Trust Certificate issued pursuant to this Section shall constitute complete
and indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Trust Certificate shall be found
at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person
in whose name any Trust Certificate is registered as the owner of such Trust
Certificate for the purpose of receiving distributions pursuant to Section
5.02 and for all other purposes whatsoever, and none of the Owner Trustee,
the Certificate Registrar, any Paying Agent or any of their respective agents
shall be affected by any notice of the contrary.
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SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDER'S NAME AND
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Trust Depositor, within 15 days after receipt by the
Certificate Registrar of a written request therefor from the Servicer or the
Trust Depositor, the name and address of the Certificateholder as of the most
recent Record Date in such form as the Servicer or the Trust Depositor may
reasonably require. Every Certificateholder, by receiving and holding a Trust
Certificate, agrees with the Servicer, the Trust Depositor and the Owner
Trustee that none of the Servicer, the Trust Depositor or the Owner Trustee
shall be held accountable by reason of the disclosure of any such information
as to the name and address of the Certificateholder hereunder, regardless of
the source from which such information was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall maintain in Delaware, an office or offices or agency or agencies where
the Trust Certificate may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in
respect of the Trust Certificate and this Agreement may be served. The Owner
Trustee hereby designates the Owner Trustee Corporate Trust Office as its
office for such purposes. The Owner Trustee shall give prompt written notice
to the Trust Depositor, the Servicer and to the Certificateholder of any
change in the location of the Certificate Register or any such office or
agency.
SECTION 3.09. TEMPORARY TRUST CERTIFICATE. Pending the preparation
of the definitive fully registered Trust Certificate (the "DEFINITIVE TRUST
CERTIFICATE"), the Owner Trustee, on behalf of the Trust, may execute,
authenticate and deliver, a temporary Trust Certificate that is printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Definitive Trust
Certificate in lieu of which it is issued. If a temporary Trust Certificate
is issued, the Trust Depositor will cause the Definitive Trust Certificate to
be prepared without unreasonable delay. After the preparation of the
Definitive Trust Certificate, the temporary Trust Certificate shall be
exchangeable for the Definitive Trust Certificate upon surrender of the
temporary Trust Certificate at the office or agency to be maintained as
provided in Section 3.08, without charge to the Holder. Upon surrender for
cancellation of the temporary Trust Certificate, the Owner Trustee shall
execute and authenticate and deliver in exchange therefor a like principal
amount of the Definitive Trust Certificate. Until so exchanged, the temporary
Trust Certificate shall in all respects be entitled to the same benefits
hereunder as a Definitive Trust Certificate.
SECTION 3.10. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to the Certificateholder from the Certificate Distribution
Account pursuant to Section 5.02(a) and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines
in its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
initially shall be Norwest Bank Minnesota, National Association, and any
co-paying agent chosen by the Paying Agent that is acceptable to the
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Owner Trustee. Each Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Owner Trustee. In the event that Norwest
Bank Minnesota, National Association shall no longer be the Paying Agent, the
Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that, as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal
of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04
and 8.01 shall apply to the Owner Trustee also in its role as Paying Agent,
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 3.11. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATE.
Trust Depositor shall on the Closing Date purchase from the Trust a Trust
Certificate representing the Certificate Balance.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO CERTIFICATEHOLDER WITH RESPECT TO
CERTAIN MATTERS. Subject to the provisions and limitation of Section 4.04,
with respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action, the Indenture Trustee shall have consented to such action in the
event any Notes are outstanding and the Certificateholder shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that such Certificateholder has withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Contracts);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
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(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Owner;
(e) amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially and
adversely affect the interests of the Owner; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of
a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent, Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or the Agreement, as applicable.
SECTION 4.02. ACTION BY OWNER WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owner, to (a)
remove the Administrator pursuant to Section 8 of the Administration
Agreement, (b) appoint a successor Administrator pursuant to Section 8 of the
Administration Agreement, (c) remove the Servicer pursuant to Section 8.01 of
the Sale and Servicing Agreement, (d) except as expressly provided in the
Transaction Documents, sell the Contracts or other Trust Assets after the
termination of the Indenture, (e) initiate any claim, suit or proceeding by
the Trust or compromise any claim, suit or proceeding brought by or against
the Trust, (f) authorize the merger or consolidation of the Trust with or
into any other business trust or entity (other than in accordance with
Section 3.10 of the Indenture) or (g) amend the Certificate of Trust. The
Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Owner.
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. Subject
to Sections 2.12(b) and (f), the Owner Trustee shall not have the power to
commence a voluntary proceeding in a bankruptcy relating to the Trust without
the prior approval of the Owner and the delivery to the Owner Trustee by such
Owner of a certificate certifying that such Owner reasonably believes that
the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER. The Owner shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Transaction Documents or
would be contrary to the purpose of this Trust as set forth in Section 2.03,
nor shall the Owner Trustee be obligated to follow any such direction, if
given.
ARTICLE V. APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee,
for the benefit of the Certificateholder, shall establish and maintain in the
name of the Trust an Eligible Account (the "CERTIFICATE DISTRIBUTION
ACCOUNT"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholder.
- 14 -
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise expressly provided herein,
the Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the Certificateholder. If, at
any time, the Certificate Distribution Account ceases to be an Eligible
Account, the Owner Trustee (or the Trust Depositor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the
Owner Trustee or an Affiliate thereof) shall within ten Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Account and shall transfer any cash and/or any investments to such
new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Paying Agent will deposit in the
Certificate Distribution Account and distribute to the Certificateholder
amounts received pursuant to Section 7.05 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(b) On each Distribution Date, the Paying Agent shall send to the
Certificateholder the statement or statements provided to the Owner Trustee
by the Servicer pursuant to Section 9.01 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocation of income) to the Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Paying Agent is hereby authorized and
directed to retain from amounts otherwise distributable to the Owner
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any such tax in appropriate proceedings, and withholding payment of such tax,
if permitted by law, pending the outcome of such proceedings). The amount of
any withholding tax imposed with respect to the Certificateholder shall be
treated as cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution, the Paying Agent may in its sole discretion withhold such
amounts in accordance with the paragraph (c).
SECTION 5.03. METHOD OF PAYMENT. Subject to Section 9.01(c)
respecting the final payment upon retirement of the Certificate,
distributions required to be made to the Certificateholder of record on the
related Record Date shall be made by check mailed to such Certificateholder
at the address of such Holder appearing in the Certificate Register.
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
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SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDER, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Administrator shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis and
the accrual method of accounting, (b) deliver to the Owner, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required to enable the Owner to prepare its federal and state income
tax returns, (c) file such tax returns relating to the Trust and make such
elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so
as to maintain the federal income tax treatment for the Trust as set forth in
Section 2.11, (d) cause such tax returns to be signed in the manner required
by law and (e) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.02(c) with respect to income or
distributions to Owner. The Owner Trustee shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues with
respect to the Contracts. If applicable, the Owner Trustee shall not make the
election provided under Section 754 or Section 761 of the Code.
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Trust Depositor shall sign on behalf of the Trust the tax
returns of the Trust.
(b) If Subchapter K of the Code should be applicable to the Trust,
the Certificateholder shall be designated the "TAX MATTERS PARTNER" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Trust
is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Transaction Documents to which the Trust is
to be a party and any amendment or other agreement, as evidenced conclusively
by the Owner Trustee's execution thereof. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Transaction Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Transaction Documents.
SECTION 6.02. GENERAL DUTIES. Subject to the provisions and
limitations of Sections 2.03 and 2.06, it shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator)
all of its responsibilities pursuant to the terms of this Agreement and the
Transaction Documents to which the Trust is a party and to administer the
Trust in the interest of the Owner, subject to the Transaction Documents and
in accordance with the provisions of this Agreement. Without limiting the
foregoing, the Owner Trustee shall on behalf of the Trust file and prove any
claim or claims that may exist against Xxxxxx Financial in connection with
any claims paying procedure as part of an insolvency or receivership
proceeding
- 16 -
involving Xxxxxx Financial. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities hereunder
and under the Transaction Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any Transaction Document, and
the Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article Four, in accordance with the terms of the
Transaction Documents the Owner may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) Owner Trustee shall not be required to take any action hereunder
or under any other Transaction Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any other Transaction Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Owner requesting instruction as to the course of action
to be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Owner received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement and the other Transaction Documents, as it
shall deem to be in the best interests of the Owner, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or
is silent or incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as shall be appropriate under the
circumstances) to the Owner requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good faith in accordance
with any such instruction received, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Agreement or the other Transaction
- 17 -
Documents, as it shall deem to be in the best interests of the Owner, and
shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the registration with, licensing by or the taking of any other
similar action in respect of, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware by or with
respect to the Trustee; (ii) result in any fee, tax or other governmental
charge under the laws of any jurisdiction or any political subdivisions
thereof in existence on the date hereof other than the State of Delaware
being payable by the Owner Trustee; or (iii) subject the Owner Trustee to
personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by the Owner Trustee contemplated in this Agreement. In the
event that the Owner Trustee has determined that any action set forth in
clauses (i)-(iii) will result in the consequences stated therein, the
Administrator and the Owner Trustee shall appoint one or more Persons to act
as co-trustee pursuant to Section 10.05.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of
or otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or any document or written instruction received
by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Transaction
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file any Commission filing for the Trust or to record this Agreement or any
other Transaction Document. The Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be
necessary to discharge any liens on any part of the Trust Estate that result
from actions by, or claims against, the Owner Trustee that are not related to
the ownership or the administration of the Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Transaction Documents and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.03.
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any
action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, to the actual knowledge of a Responsible Officer
of the Owner Trustee, would result in the Trust's becoming
- 18 -
taxable as a corporation for federal or state income tax purposes. The Owner
shall not direct the Owner Trustee to take actions that would violate the
provisions of this Section.
ARTICLE VII.
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. A CCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Transaction
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Transaction Document under any
circumstances, except (i) for its own willful misconduct or negligence or
(ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee which did not result from
gross negligence on the part of such responsible officer;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Owner;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Trust Depositor or for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate, or for or in respect of the
validity or sufficiency of the Transaction Documents, other than the
certificate of authentication on the Trust Certificate, and the Owner Trustee
shall in no event assume or incur any liability, duty, or obligation to any
Noteholder or to any Owner, other than as expressly provided for herein or
expressly agreed to in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee
or the Servicer under any of the Transaction Documents or otherwise and the
Owner Trustee shall have no obligation or liability
- 19 -
to perform the obligations of the Trust under this Agreement or the other
Transaction Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture
or the Servicer, or the Trust Depositor under the Sale and Servicing
Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by the Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Transaction Document, at the request,
order or direction of the Owner, unless such Owner has offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or thereby.
The right of the Owner Trustee to perform any discretionary act enumerated in
this Agreement or in any other Transaction Document shall not be construed as
a duty, and the Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Owner promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Trust Depositor and the Owner that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound or result in the creation or
imposition of any lien, charge or encumbrance on the Trust Estate resulting
from actions by or claims against the Owner Trustee individually which are
unrelated to this Agreement or the other Transaction Documents.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other
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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 method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the treasurer or other authorized officers of the relevant party, as to such
fact or matter and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
other Transaction Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into by any of
them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents or attorneys as shall have been selected by the Owner Trustee
with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided
in this Article Seven, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
other Transaction Document shall look only to the Trust Estate for payment or
satisfaction thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE, NOTES
OR CONTRACTS. The recitals contained herein and in the Trust Certificate
(other than the signature and countersignature of the Owner Trustee and the
certificate of authentication on the Trust Certificate) shall be taken as the
statements of the Trust Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any
other Transaction Document or the Trust Certificate (other than the signature
and countersignature of the Owner Trustee and the certificate of
authentication on the Trust Certificate) or the Notes, or of any Contract or
related documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any Contract, or the perfection and priority of any security interest
created by any Contract in any Equipment or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to the
Certificateholder under this Agreement or the Noteholders under the
Indenture, including, without limitation, the existence, condition and
ownership of any Equipment; the existence and enforceability of any insurance
thereon; the existence and contents of any Contract on any computer or other
record thereof; the validity of the assignment of any Contract to the Trust
or of any intervening assignment; the completeness of any Contract; the
performance or enforcement of any Contract;
- 21 -
the compliance by the Trust Depositor or the Servicer with any warranty or
representation made under any Transaction Document or in any related document
or the accuracy of any such warranty or representation; or any action of the
Administrator, the Indenture Trustee or the Servicer or any subservicer taken
in the name of the Owner Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATE AND NOTES.
The Owner Trustee in its individual or any other capacity may become the
owner or pledgee of the Trust Certificate or Notes and may deal with the
Trust Depositor, the Administrator, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if it were not
Owner Trustee.
ARTICLE VIII.
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon and which shall be paid consistent with Section
5.19 of the Sale and Servicing Agreement. Additionally, the Owner Trustee
shall be entitled to be reimbursed by the Trust Depositor or Servicer for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and
counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
SECTION 8.02. INDEMNIFICATION. The Trust Depositor shall be liable
as primary obligor for, and shall indemnify the Owner Trustee and its
successors, assigns and servants (collectively, the "INDEMNIFIED PARTIES")
from and against, any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs, expenses
and disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "EXPENSES") which may at any time be
imposed on, incurred by or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement,
the other Transaction Documents, the Trust Estate, the administration of the
Trust Estate or the action or inaction of the Owner Trustee hereunder, except
only that the Trust Depositor shall not be liable for or required to
indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall
be subject to the approval of the Trust Depositor, which approval shall not
be unreasonably withheld.
SECTION 8.03. Section 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any
amounts paid to the Owner Trustee pursuant to this Article shall be deemed
not to be a part of the Trust Estate immediately after such payment.
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ARTICLE IX.
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT.
(a) This Trust shall dissolve upon the earlier of (i) final
distribution by the Owner Trustee of all moneys or other property or proceeds
of the Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement and Article Five, (ii) the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof and (iii) the time provided in Section 9.02. The bankruptcy,
liquidation, dissolution, death or incapacity of any Owner, other than the
Trust Depositor as described in Section 9.02, shall not (i) operate to
terminate this Agreement or the Trust, (ii) entitle such Owner's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Trust or Trust Estate or (iii) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust
Depositor nor any Holder shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the
Distribution Date upon which the Certificateholder shall surrender its Trust
Certificate to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the
Certificateholder mailed within five Business Days of receipt of notice of
termination from the Servicer given pursuant to Section 10.01 of the Sale and
Servicing Agreement, stating (i) the Distribution Date upon or with respect
to which final payment of the Trust Certificate shall be made upon
presentation and surrender of the Trust Certificate at the office of the
Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Distribution Date
is not applicable, payments being made only upon presentation and surrender
of the Trust Certificate at the office of the Paying Agent therein specified.
The Owner Trustee shall give such notice to the Certificate Registrar (if
other than the Owner Trustee) and the Paying Agent at the time such notice is
given to the Certificateholder. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to the
Certificateholder amounts distributable on such Distribution Date pursuant to
Section 5.02.
(d) In the event that the Certificateholder shall not surrender its
Trust Certificate for cancellation within six months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a second
written notice to such Certificateholder to surrender its Trust Certificate
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice the Trust Certificate shall not have
been surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
Certificateholder concerning surrender of its Trust Certificates, and the
cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement.
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Any funds remaining in the Trust after exhaustion of such remedies shall be
distributed by the Owner Trustee to the Trust Depositor.
(e) Upon the winding up of the Trust and payment of all liabilities
in accordance with Section 3808 of the Business Trust Statute, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute at which time
the Trust shall terminate. The Administrator shall be the liquidator of the
Trust.
SECTION 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR
WITHDRAWAL OR REMOVAL OF TRUST DEPOSITOR. In the event that an Insolvency
Event shall occur with respect to the Trust Depositor or the Trust Depositor
shall withdraw, liquidate or be removed from the Trust, this Agreement shall
be terminated in accordance with Section 9.01 90 days after the date of such
event, unless within such 90 day period, the Owner Trustee shall have
received written instructions from the Required Holders not to dissolve or
terminate the Trust. Promptly after the occurrence of any Insolvency Event
with respect to the Trust Depositor, the Trust Depositor shall give the
Indenture Trustee and Owner Trustee written notice thereof, and the Indenture
Trustee shall give prompt written notice to the Noteholders thereof. Upon a
termination pursuant to this Section, the Owner Trustee shall direct the
Indenture Trustee promptly to sell the Trust Assets in a commercially
reasonable manner and on commercially reasonable terms. The proceeds of such
a sale of the Trust Assets shall be treated as Collections under the Sale and
Servicing Agreement.
ARTICLE X.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; and (a) having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authorities; and having (or having a parent that has) a rating of at
least Baa3 by Xxxxx'x; or (b) which the Rating Agencies have otherwise
indicated in writing is an entity acceptable to act as Owner Trustee
hereunder. If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section
10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one
copy to the
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successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Owner Trustee may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Administrator, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt
or insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator, may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee, and
shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each Rating Agency.
SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator, and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective, and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to the
Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense
of the Administrator.
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SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, that such corporation shall be eligible pursuant
to Section 10.01 and, PROVIDED, FURTHER, that the Owner Trustee shall mail
notice of such merger or consolidation to each Rating Agency.
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or any financed Equipment may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Administrator and Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or as separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in
such Person, in such capacity, such title to the Trust or any part thereof
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so to
do, the Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor Owner Trustee pursuant to Section
10.01 and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
- 26 -
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Owner Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) The Agreement may be amended by the Trust Depositor, and the
Owner Trustee, without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; PROVIDED, HOWEVER, that
any such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or the
Certificateholder.
(b) This Agreement may also be amended from time to time by the
Trust Depositor, and the Owner Trustee, with the consent of the Required
Holders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders or the
Certificateholder; PROVIDED, HOWEVER, that no such amendment shall increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
(i) collections of payments on Contracts or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholder, or (ii) eliminate the Certificateholder consent or reduce
the aforesaid percentage of the Outstanding Amount of the Notes required to
consent to any such amendment, without the consent of the Holders of all
outstanding Notes and the Trust Certificate.
- 27 -
(c) Prior to the execution of any such amendment or consent, the
Trust Depositor shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee,
the Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of the Certificateholder, Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Certificateholder provided for in this Agreement or in
any other Transaction Document) and of evidencing the authorization of the
execution thereof by the Certificateholder shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNER. The Owner
shall not have legal title to any part of the Trust Estate. The Owner shall
be entitled to receive distributions with respect to its undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer,
by operation of law or otherwise, of any right, title or interest of the
Owner to and in its ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the
Trust Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Trust Depositor, the Owner, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders,
and nothing in this Agreement (other than Section 2.07), whether express or
implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect
of this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.04. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("NOTICES") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an
- 28 -
Authorized Officer of the party to which sent, or (d) on the date transmitted
by legible telecopier transmission with a confirmation of receipt, in all
cases addressed to the recipient as follows:
(i) If to the Servicer or any Seller:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Distribution & Investments
Fax No.: (000) 000-0000
(ii) If to the Trust Depositor:
Xxxxxx Funding Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Distribution & Investments
Fax No.: (000) 000-0000
(iii) If to the Indenture Trustee:
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth Street and Marquette Avenue
MAC X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
Fax No.: (000) 000-0000
(iv) If to the Owner Trustee:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Fax No.: (000) 000-0000
(v) If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Fax No.: (000) 000-0000
- 29 -
(vi) If to Fitch:
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Securities Group
Fax No.: (000) 000-0000
(vii) If to DCR:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Monitoring Group
(Equipment Leases)
Fax No.: (000) 000-0000
(viii) If to the Underwriter:
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Asset Securitization Division
Fax No.:
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Trust Certificate or the rights of the Holder thereof.
SECTION 11.06. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the Trust Depositor, and the Owner Trustee and their respective successors
and permitted assigns and each Owner and its successors
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and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by an Owner shall
bind the successors and assigns of such Owner.
SECTION 11.08. NO PETITION. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Trust Depositor or the Trust, or join in any institution against
the Trust Depositor, or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificate, the Notes, this Agreement
or any of the other Transaction Documents.
SECTION 11.09. No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust
Certificate represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Trust Depositor, the Servicer,
the Originators, the Administrator, the Owner Trustee, the Indenture Trustee
or any of the respective Affiliates and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
in this Agreement, the Trust Certificate or the other Transaction Documents.
The Owner by accepting the Trust Certificate (i) acknowledges that such Trust
Certificate represents a beneficial interest in the Trust and Trust Assets
only and does not represent an interest in or an obligation of the Trust
Depositor, the Servicer, the Administrator, the Owner Trustee or any
Affiliate of the foregoing, and no recourse may be had against any such party
or their assets, except as may be expressly set forth or contemplated in the
Transaction Documents and (ii) enters into the undertakings and agreements
provided for such Certificateholder set forth in Section 13.09 of the Sale
and Servicing Agreement.
SECTION 11.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. TRUST CERTIFICATE TRANSFER RESTRICTIONS. The Trust
Certificate may not be acquired by or for the account of a Benefit Plan. By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan nor will it
hold such Trust Certificate for the account of a Benefit Plan. By accepting
and holding a Trust Certificate, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 11.13. TRUST DEPOSITOR PAYMENT OBLIGATION. The Trust
Depositor shall be responsible for payment of the Administrator's
compensation pursuant to Section 3
- 31 -
of the Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
- 32 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
XXXXXX FUNDING CORPORATION,
as Trust Depositor
By:_______________________________
Printed Name:_______________
Title:_______________________
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:_______________________________
Printed Name:_______________
Title:_______________________
- 33 -
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1999-2
This Certificate of Trust of Xxxxxx Equipment Asset Receivables Trust
1999-2 (the "TRUST"), dated December [__], 1999, is being duly executed and
filed by Wilmington Trust Company, a Delaware banking corporation, as Owner
Trustee, to form a business trust under the Delaware Business Trust Act (12 DEL.
CODE, Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Xxxxxx
Equipment Asset Receivables Trust 1999-2.
2. DELAWARE TRUSTEE. The name and business address of the Owner
Trustee of the Trust in the State of Delaware is Wilmington Trust Company,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (Attn: Corporate Trust
Administration).
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:_______________________________________
Printed Name:________________________
Title:_______________________________
A-1
EXHIBIT B
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO
THE EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT AND INDENTURE
REFERRED TO HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
XXXXXX FUNDING CORPORATION, XXXXXX FINANCIAL, INC., XXXXXX FINANCIAL LEASING,
INC. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE TRUST
AGREEMENT. THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR PLEDGED UNLESS THE CONDITIONS SET FORTH IN SECTION 3.04 OF THE
TRUST AGREEMENT HAVE BEEN COMPLIED WITH.
THIS CERTIFICATE IS TRANSFERRABLE ONLY IN WHOLE AND NOT IN PART.
THIS TRUST CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS TRUST
CERTIFICATE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1999-2 CERTIFICATE
NO. 1 Trust Certificate
Principal Balance $[__________]
THIS CERTIFIES THAT Xxxxxx Funding Corporation is the registered
owner of $[__________] of a nonassessable, fully-paid, fractional undivided
equity interest in the Xxxxxx Equipment Asset Receivables Trust 1999-2 (the
"TRUST") formed by Xxxxxx Funding Corporation, a Delaware corporation (the
"TRUST DEPOSITOR").
The Trust was created pursuant to a Trust Agreement, dated as of
December [ ], 1999 (as amended, restated and/or supplemented from time to
time, the "TRUST AGREEMENT"), among Xxxxxx Funding Corporation, as Trust
Depositor (the "TRUST DEPOSITOR"), and Wilmington Trust Company, as owner
trustee (the "OWNER TRUSTEE"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them
in (i) the Trust Agreement, (ii) the Sale and Servicing Agreement, dated as
of December [ ], 1999 (the "SALE AND SERVICING AGREEMENT"), among the Trust,
Xxxxxx Funding Corporation, as depositor (the "TRUST
B-1
DEPOSITOR"), Xxxxxx Financial, Inc. ("XXXXXX FINANCIAL"), as Servicer (in
such capacity, the "SERVICER" in its capacity as an originator and its
successor and assigns "XXXXXX LEASING", and together with Xxxxxx Financial
the "ORIGINATORS", and each, an "ORIGINATOR"), and Norwest Bank Minnesota,
N.A., as Indenture Trustee (the "INDENTURE TRUSTEE") or (iii) the Indenture,
dated as of December [ ], 1999 (the "INDENTURE"), between the Trust and the
Indenture Trustee.
This Trust Certificate is the duly authorized Trust Certificate
designated as "XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST RECEIVABLES-BACKED
CERTIFICATE" (the "TRUST CERTIFICATE"). Also issued under the Indenture are
eight classes of notes designated as "[ ]% XXXXXX EQUIPMENT ASSET RECEIVABLES
TRUST CLASS A-1 RECEIVABLE- BACKED NOTES" and "[ ]% XXXXXX EQUIPMENT ASSET
RECEIVABLES TRUST CLASS A-2 RECEIVABLE-BACKED NOTES", and "[ ]% XXXXXX
EQUIPMENT ASSET RECEIVABLES TRUST CLASS A-3 RECEIVABLE-BACKED NOTES", and "[ ]
% XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST CLASS A-4 RECEIVABLE-BACKED NOTES"
and "[ ]% XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST CLASS B RECEIVABLE-BACKED
NOTES" and "[ ]% XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST CLASS C
RECEIVABLE-BACKED NOTES," and "[ ]% XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST
CLASS D RECEIVABLE-BACKED NOTES" and "[ ]% XXXXXX EQUIPMENT ASSET RECEIVABLES
TRUST CLASS E RECEIVABLE-BACKED NOTES" (collectively, the "NOTES"). This
Trust Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of
this Trust Certificate by virtue of its acceptance hereof assents and by
which such Holder is bound. The property of the Trust includes, among other
things, all the right, title and interest of the Trust Depositor in and to
the Contracts listed on the List of Contracts delivered on the Closing Date
(including, without limitation, all security interests and all rights to
receive payments which are collected pursuant thereto after the Cutoff Date,
including any liquidation proceeds therefrom, but excluding any rights to
receive payments which were collected pursuant thereto on or prior to the
Cutoff Date) and all interests in the Equipment related thereto.
Under the Trust Agreement, there will be distributed on the [ ] day
of each month or if such day is not a Business Day the next succeeding
Business Day commencing January [ ], 2000 (each, a "DISTRIBUTION DATE"), and
ending no later than the Distribution Date in [ ] to the person in whose name
this Trust Certificate is registered at the close of business on the last day
of the immediately preceding calendar month (each, a "RECORD DATE"), the
amount to be distributed to the Certificateholder pursuant to the Trust
Agreement on such Distribution Date.
The holder of this Trust Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Originator, the Servicer, the Trust
Depositor, Owner Trustee, Indenture Trustee and the Certificateholder that,
for purposes of federal income, state and local income and single business
tax and any other income taxes, the Trust will be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii) and that all items of income, deduction, gain,
loss or credit of the Trust will be treated as such items of the
Certificateholder. The Trust Depositor and any other
B-2
Certificateholder, by acceptance of a Trust Certificate, agrees to treat, and
to take no action inconsistent with such treatment of, the Trust for federal
income tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the
Trust Depositor, or join in any institution against the Trust or the Trust
Depositor any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificate, the Notes, the Trust Agreement or any of
the other Transaction Documents.
Distributions on this Trust Certificate will be made as provided in
the Trust Agreement by the Owner Trustee or its Agent by wire transfer or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Trust Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement
and notwithstanding the above, the final distribution on this Trust
Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of
this Trust Certificate at the office or agency maintained for that purpose by
the Owner Trustee in the City of Wilmington, State of Delaware.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or any other Transaction Document or be valid for
any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an
interest in the Trust Depositor, Xxxxxx Financial, as an Originator or
Servicer, the Owner Trustee, the Indenture Trustee or any of their respective
Affiliates and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust
Agreement or the other Transaction Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain collections and recoveries with
respect to the Contracts and certain other amounts, in each case as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy
of each of the Sale and Servicing Agreement and the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Trust Depositor and at such other
places, if any, designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Certificateholder
under the Trust Agreement at any time by the Trust Depositor and the Owner
Trustee with the consent of the Required Holders (as defined in the Sale and
Servicing Agreement). Any such consent shall be conclusive and binding on the
Holder and on all future Holders of this Trust Certificate and of any Trust
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holder of the Trust
Certificate or any Noteholder.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in Wilmington,
Delaware, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar in Chicago,
Illinois executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon a new Trust Certificate evidencing the
same aggregate interest in the Trust will be issued to the designated
transferee. The initial Certificate Registrar appointed under the Trust
Agreement is the Owner Trustee.
Except as provided in the Trust Agreement, the Trust Certificate is
issuable only as a registered Trust Certificate without coupons. No service
charge will be made for any registration of transfer of such Trust
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Trust Certificate
is registered as the owner hereof for all purposes,
B-4
and none of the Owner Trustee, the Certificate Registrar or any such agent
shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholder of all amounts required to be paid to such holder pursuant
to the Trust Agreement and the Sale and Servicing Agreement and the
deposition of all property held as part of the Trust Estate. The Trust
Depositor may at its option purchase the Trust Estate at the times and at the
prices specified in the Sale and Servicing Agreement.
The Trust Certificate may not be acquired by a Benefit Plan. By
accepting and holding this Trust Certificate, the Holder hereof or, in the
case of Book-Entry Trust Certificate, by accepting a beneficial interest in
this Trust Certificate, the related Certificate Owner, shall be deemed to
have represented and warranted that it is not a Benefit Plan and is not
acquiring this Trust Certificate or an interest therein for the account of
such an entity.
B-5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Trust Certificate to be duly
executed.
Dated: December [__], 1999
XXXXXX EQUIPMENT ASSET
RECEIVABLES TRUST 1999-2
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee
By: _______________________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This the Trust Certificate referred to in the within-mentioned Trust
Agreement.
Wilmington Trust Company,
not in its individual capacity but solely
as Owner Trustee
By:_______________________________________
Authorized Signatory
B-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------------------------------------------------------------------
to transfer said Trust Certificate on the books of the Certificate Registrar,
will full power of substitution in the premises.
Dated:_______________________
Signature Guaranteed:
--------------------------------------- ----------------------------------------
NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this assignment
by an eligible guarantor institution. must correspond with the name of the
registered owner as it appears on the
face of the within Trust Certificate in
every particular, without alteration or
enlargement or any change whatever.
B-7
