AMENDED AND RESTATED
TRUST AGREEMENT
by and between
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor,
and
ALLFIRST FINANCIAL CENTER NATIONAL ASSOCIATION
as Owner Trustee
Dated as of April 1, 2000
CIT EQUIPMENT COLLATERAL 2000-1
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Defined Terms Generally..........................................................1
Section 1.02. Specific Defined Terms...........................................................1
Section 1.03. Usage of Terms...................................................................4
Section 1.04. Section References...............................................................4
Section 1.05. Accounting Terms.................................................................4
ARTICLE II ORGANIZATION AND ESTABLISHMENT OF TRUST.....................................................4
Section 2.01. Establishment of Trust; Name.....................................................4
Section 2.02. Office...........................................................................5
Section 2.03. Purposes and Powers..............................................................5
Section 2.04. Appointment of Owner Trustee.....................................................6
Section 2.05. Initial Capital Contribution; Organizational Expenses............................6
Section 2.06. Declaration of Trust.............................................................6
Section 2.07. Liability of Trust Depositor.....................................................6
Section 2.08. Title to Trust Property..........................................................7
Section 2.09. Situs of Trust...................................................................7
Section 2.10. Representations and Warranties of the Trust Depositor............................7
Section 2.11. Federal Income Tax Treatment.....................................................8
ARTICLE III EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN.....................................10
Section 3.01. Initial Ownership...............................................................10
Section 3.02. The Equity Certificate..........................................................10
Section 3.03. Authentication and Delivery of Equity Certificate...............................10
Section 3.04. Registration of Transfer and Exchange of the Equity Certificate.................11
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate...................11
Section 3.06. Persons Deemed Owners...........................................................12
Section 3.07. Access to List of Equity Certificateholder's Name and Addresses.................12
Section 3.08. Maintenance of Office or Agency.................................................12
Section 3.09. Ownership by Trust Depositor of Equity Certificate..............................12
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................................................13
Section 4.01. Prior Notice to Equity Certificateholder with Respect to Certain Matters........13
Section 4.02. Action by Owner with Respect to Certain Matters.................................13
Section 4.03. Action by Owner with Respect to Bankruptcy......................................14
Section 4.04. Restrictions on Owner's Power...................................................14
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ARTICLE V APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES................................15
Section 5.01. [Reserved]......................................................................15
Section 5.02. [Reserved]......................................................................15
Section 5.03. Reports.........................................................................15
Section 5.04. Taxes...........................................................................15
Section 5.05. Method of Payment...............................................................15
Section 5.06. No Segregation of Moneys; No Interest...........................................15
Section 5.07. Accounting and Reports to the Equity Certificateholder, the Internal
Revenue Service and Others.................................................16
Section 5.08. Signature on Returns; Tax Matters Partner.......................................16
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................................................17
Section 6.01. General Authority...............................................................17
Section 6.02. General Duties..................................................................17
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......................19
Section 6.06. Restrictions....................................................................19
Section 6.07. Administration Agreement........................................................19
ARTICLE VII CONCERNING THE OWNER TRUSTEE..............................................................21
Section 7.01. Acceptance of Trusts and Duties.................................................21
Section 7.02. Furnishing of Documents.........................................................22
Section 7.03. Representations and Warranties..................................................22
Section 7.04. Reliance; Advice of Counsel.....................................................23
Section 7.05. Not Acting in Individual Capacity...............................................23
Section 7.06. Owner Trustee Not Liable for Notes, Equity Certificate or Contracts.............23
Section 7.07. Owner Trustee May Own Notes.....................................................24
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................................25
Section 8.01. Owner Trustee's Fees and Expenses...............................................25
Section 8.02. Indemnification.................................................................25
Section 8.03. Non-recourse Obligations........................................................26
ARTICLE IX TERMINATION OF TRUST.......................................................................27
Section 9.01. Termination of Trust............................................................27
Section 9.02. Dissolution upon Bankruptcy of Trust Depositor..................................28
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES......................................29
Section 10.01. Eligibility Requirements for Owner Trustee.....................................29
Section 10.02. Resignation or Removal of Owner Trustee........................................29
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Section 10.03. Successor Owner Trustee........................................................30
Section 10.04. Merger or Consolidation of Owner Trustee.......................................30
Section 10.05. Appointment of Co-Trustee or Separate Trustee..................................30
ARTICLE XI MISCELLANEOUS..............................................................................33
Section 11.01. Supplements and Amendments.....................................................33
Section 11.02. Limitations on Rights of Others................................................34
Section 11.03. Notices........................................................................34
Section 11.04. Severability of Provisions.....................................................35
Section 11.05. Counterparts...................................................................35
Section 11.06. Successors and Assigns.........................................................35
Section 11.07. No Petition....................................................................36
Section 11.08. No Recourse....................................................................36
Section 11.09. Headings.......................................................................36
Section 11.10. Governing Law..................................................................36
Section 11.11. Certain Servicer Payment Obligations...........................................36
Section 11.12. JURISDICTION...................................................................36
Section 11.13. WAIVER OF JURY TRIAL...........................................................37
EXHIBITS
Exhibit A - [RESERVED] A-1
Exhibit B - Form of Equity Certificate B-1
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of April 1,
2000, is made by and between NCT Funding Company, L.L.C., a Delaware limited
liability company, as Trust Depositor (the "Trust Depositor"), and Allfirst
Financial Center National Association, as Owner Trustee.
Whereas, the parties hereto wish to amend and restate the
Trust Agreement dated as of March 31, 2000, as amended and restated as of March
31, 2000 (the "Original Trust Agreement").
Whereas, in connection herewith the Trust Depositor is willing
to assume certain obligations pursuant hereto, and
Whereas, in connection herewith the Trust Depositor is willing
to purchase the Equity Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree that the Original
Trust Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms Generally. Capitalized terms used
that are not otherwise specifically defined herein shall have the same meaning
given to such terms when used in the Pooling Agreement (as defined in Section
1.02 below).
Section 1.02. Specific Defined Terms. Whenever used in this
Agreement, the following words and phrases, unless otherwise specified or the
context otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration Agreement,
dated as of the date hereof, among the Trust, the Trust Depositor, the Indenture
Trustee, the Owner Trustee, and TCC, as Administrator.
"Administrator" has the meaning given such term in the
Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement,
as the same may be amended, supplemented or restated from time to time.
"Benefit Plan" means (i) an employee benefit plan (as such
term is defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described
in Section 4975(e)(1) of the Code or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in the cities of Millsboro, Delaware,
Baltimore, Maryland, Livingston, New Jersey, or New York, New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Certificate of Trust" means the Certificate of Trust filed
for the Trust with the Secretary of State on March 31, 2000, as amended and
restated by the Restated Certificate of Trust filed for the Trust with the
Secretary of State on April 26, 2000.
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar (or any successor thereto) appointed
pursuant to Section 3.04.
"Closing Date" means May 10, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Certificate" means the trust certificate evidencing
the beneficial equity interest of the Owner in the Trust and Trust Assets,
substantially in the form of Exhibit B hereto.
"Equity Certificateholder" means the Person in whose name the
Equity Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Financial" means Newcourt Financial USA Inc., a Delaware
corporation.
"Foreign Person" means any Person other than (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
organized in or under the laws of the United States or any political subdivision
thereof, (iii) an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or (iv) a trust whose administration is
subject to the primary supervision of a court within the United States and which
has one or more U.S. fiduciaries who have authority to control all substantial
decisions of the Trust.
"Holder" means a Noteholder or the Equity Certificateholder,
as applicable.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.02.
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"Indenture" means the Indenture dated as of the date of this
Agreement by and between the Trust and The Chase Manhattan Bank, as Indenture
Trustee.
"Note Depository Agreement" means the Agreement dated as of
the Closing Date among the Trust, the Indenture Trustee, the Administrator and
DTC, as the Clearing Agency, relating to the Notes, as the same may be amended
and supplemented from time to time.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes, and
the Class D Notes in each case issued pursuant to the Indenture.
"Noteholders" means each Person in whose name a Note is
registered in the Note Register maintained by the Indenture Trustee.
"Owner" means the Equity Certificateholder.
"Owner Trustee" means Allfirst Financial Center National
Association, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the
Owner Trustee at which its corporate trust business shall be administered, which
initially shall be 000 Xxxxxxxx Xxxx - XX 000-000, Xxxxxxxxx, XX 00000 or such
other office at such other address in the State of Delaware as the Owner Trustee
may designate from time to time by notice to the Equity Certificateholder, the
Servicer, the Indenture Trustee and the Trust Depositor.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, limited liability company, joint stock
company, trust (including any beneficiary thereof) unincorporated organization
or government or any agency or political subdivision thereof.
"Pooling Agreement" means the Pooling and Servicing Agreement,
dated as of April 1, 2000, among the Trust, the Trust Depositor, Financial, and
TCC, in its individual capacity and as Servicer thereunder, as the same may be
amended, supplemented or restated from time to time.
"Required Holders" has the meaning given such term in the
Pooling Agreement.
"Secretary of State" means the Secretary of State of the State
of Delaware.
"TCC" means AT&T Capital Corporation, a Delaware corporation.
"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.
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"Trust" means the trust continued and governed by this
Agreement, the estate of which consists of the Trust Assets.
"Trust Assets" means all right, title and interest of the
Trust in and to the property, proceeds and rights assigned to the Trust pursuant
to Article Two of the Pooling Agreement, all funds on deposit from time to time
in the Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C. in its
capacity as Trust Depositor hereunder, and its successors.
"Trust Estate" means all right, title and interest of the
Trust in and to the property, proceeds and rights assigned to the Trust pursuant
to Article Two of the Pooling Agreement, all funds on deposit from time to time
in the Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
Section 1.03. Usage of Terms. With respect to all terms in
this Agreement, the singular includes the plural and the plural the singular;
words importing one gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement; references to Persons include their permitted successors and
assigns; and the term "including" means "including without limitation".
Section 1.04. Section References. All section references,
unless otherwise indicated, shall be to Sections in this Agreement.
Section 1.05. Accounting Terms. All accounting terms used but
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01. Establishment of Trust; Name. The Trust shall be
known as "CIT Equipment Collateral 2000-1", in which name the Owner Trustee may
conduct the activities of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued on behalf of the Trust.
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Section 2.02. Office. The office of the Trust shall be in care
of the Owner Trustee at the Owner Trustee Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Noteholders and the Trust Depositor.
Section 2.03. Purposes and Powers.
(a) The sole purpose of the Trust is to manage the Trust
Assets, and collect and disburse the periodic income therefrom for the use and
benefit of the Equity Certificateholder, and in furtherance of such purpose to
engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture
and the Equity Certificate pursuant to this
Agreement;
(ii) with the proceeds of the sale of the Notes
and the Equity Certificate, to purchase the
Contracts and other Trust Assets, and to pay
organizational, start-up and transactional
expenses of the Trust (to the extent not paid
by the Trust Depositor or the Servicer or
Administrator); and to pay the balance to the
Owner from time to time pursuant to the
Pooling Agreement;
(iii) to acquire, hold, manage, distribute, dispose
of, release or convey, to or at the direction
of the Owner pursuant to the Pooling
Agreement, any portion of the Trust Assets in
the manner described in and pursuant to the
Pooling Agreement;
(iv) to enter into, execute, deliver and perform
its obligations under the Transaction
Documents to which it is or becomes a party;
(v) to engage in those activities, including
entering into, executing, delivering, and
performing agreements, that are necessary,
suitable or convenient to accomplish the
foregoing or are incidental thereto or
connected therewith; and
(vi) subject to compliance with the Transaction
Documents, to engage in such other activities
as may be required in connection with
conservation of the Trust Assets and the
making of distributions to the Owner and the
Noteholders.
(b) The Owner Trustee is hereby authorized to engage in the
foregoing activities on behalf of the Trust. The Trust shall not engage in any
activities other than in connection with the foregoing. Nothing contained herein
shall be deemed to authorize the Owner Trustee to engage in any business
operations or any activities other than those set forth in this Section 2.03.
Specifically, the Owner Trustee shall have no authority to engage in any
business operations, or acquire any assets other than those specifically
included in the Trust Assets, or otherwise vary the assets held by the Trust.
Similarly, the Owner Trustee shall have no
5
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of this Trust as set forth in this
Section 2.03.
Section 2.04. Appointment of Owner Trustee. The Trust
Depositor appointed the Owner Trustee as trustee of the Trust effective as of
the date of the Original Trust Agreement, and as of the date hereof the Owner
Trustee shall have all the rights, powers and duties set forth herein and in the
Business Trust Statute, and the Owner Trustee hereby accepts such appointment.
Section 2.05. Organizational Expenses. The Trust Depositor
shall pay or provide for the payment of organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse or provide for the reimbursement of the Owner Trustee for any such
expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Assets in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Assets
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Owner, subject to the obligations of the Trust under the
Transaction Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute for the sole purpose
and to the extent necessary to accomplish the purposes of this Trust as set
forth in Section 2.03.
Section 2.07. Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute,
the Trust Depositor as Owner shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the Owner
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general partner;
provided, however, that the Owner shall not be liable for any losses incurred by
the Equity Certificateholder in the capacity of an investor in the Equity
Certificate or a Noteholder in the capacity of an investor in the Notes; and
provided further, that the Owner shall not be so liable to any injured party or
other creditor if such party has agreed that its recourse against the Trust for
any obligation or liability of the Trust to such party shall be limited to the
assets of the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the immediately preceding
sentence for which the Owner shall not be liable) shall be deemed third party
beneficiaries of this paragraph.
(b) No Equity Certificateholder, other than to the extent set
forth in Section 2.07(a), shall have any personal liability for any liability or
obligation of the Trust or by reason of any action taken by the parties to this
Agreement pursuant to any provisions of this Agreement or any other Transaction
Document.
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Section 2.08. Title to Trust Property. Legal title to the
Trust Assets shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Trust Assets to be vested in an owner trustee or owner trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware, the State of New York or the State of
Maryland. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Maryland or the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee, TCC
or any agent of the Trust from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware, New York or
Maryland and payments will be made by the Trust only from Delaware, New York or
Maryland. The only office of the Trust will be at the Owner Trustee Corporate
Trust Office.
Section 2.10. Representations and Warranties of the Trust
Depositor.
The Trust Depositor hereby represents and warrants to the
Owner Trustee, that:
(i) The Trust Depositor is duly organized and validly
existing as a limited liability company organized and
existing, and in good standing, under the laws of the
State of Delaware, with power and authority to own its
properties and to conduct its business and had at all
relevant times, and has, power, authority and legal
right to acquire and own the assets conveyed and to be
conveyed by it to the Trust from time to time.
(ii) The Trust Depositor is duly qualified to do business as
a foreign limited liability company in good standing
and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such
qualifications.
(iii) The Trust Depositor has the power and authority to
execute and deliver this Agreement and to carry out its
terms; the Trust Depositor has full power and authority
to sell and assign the property to be sold and assigned
from time to time to and deposited with the Owner
Trustee on behalf of the Trust as part of the Trust
Assets and has or will have duly authorized such sale
and assignment and deposit with the Owner Trustee on
behalf of the Trust by all necessary entity action; the
execution, delivery and performance of this Agreement
have been duly authorized by the Trust Depositor by all
necessary entity action; and this Agreement constitutes
the legal, valid and binding obligation of the Trust
Depositor, enforceable in accordance with its terms,
except as such enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the
availability of equitable remedies.
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(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the
certificate of formation or limited liability company
agreement of the Trust Depositor, or any indenture,
agreement or other instrument to which the Trust
Depositor is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon
any of the properties of the Trust Depositor pursuant
to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Transaction
Documents); nor violate any law or any order, rule or
regulation applicable to the Trust Depositor of any
court or of any federal or state regulatory body,
administrative agency or other governmental
instrumentality having jurisdiction over the Trust
Depositor or its properties.
(v) All approvals, authorizations, consents, orders or
other actions of any Person or any governmental entity
required in connection with the execution and delivery
of this Agreement and the fulfillment of the terms
hereof have been obtained.
(vi) There are no proceedings or investigations pending, or
to the Trust Depositor's knowledge threatened, before
any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction
over the Trust Depositor or its properties: (A)
asserting the invalidity of this Agreement or any of
the other Transaction Documents, (B) seeking to prevent
the issuance of the Equity Certificate or the
consummation of any of the transactions contemplated by
this Agreement or the other Transaction Documents, (C)
seeking any determination or ruling that might
materially and adversely affect the performance by the
Trust Depositor of its obligations under, or the
validity or enforceability of, this Agreement, the
Equity Certificate or any other Transaction Document,
or (D) involving the Trust Depositor and which might
adversely affect the federal income tax or other
federal, state or local tax attributes of the Equity
Certificate.
Section 2.11. Federal Income Tax Treatment. It is the
intention of the Trust Depositor that the Trust be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The Equity
Certificate constitutes the sole equity interest in the Trust and must at all
times be held by either the Trust Depositor or its transferee as sole Owner. The
Trust Depositor agrees not to take any action inconsistent with such intended
federal income tax treatment. Because for federal income tax purposes the Trust
will be disregarded as a separate entity, Trust items of income, gain, loss and
deduction for any month as determined for federal income tax purposes shall be
allocated entirely to the Owner; provided, that this sentence shall not limit or
otherwise affect the provisions of the Transaction Documents pertaining to
distributions of Trust Assets or proceeds thereof to Persons other than the
Trust Depositor.
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ARTICLE III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01. Initial Ownership.
(a) Upon the formation of the Trust and until the issuance of
the Equity Certificate, the Trust Depositor shall be the sole beneficiary of the
Trust. The Equity Certificate must at all times be held by either the Trust
Depositor or its transferee (to the extent permitted under Section 3.01(b)) as
sole owner.
(b) No transfer of the Equity Certificate shall be made unless
such transfer is made in a transaction which does not require registration or
qualification under the Securities Act or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the Certificate
Registrar shall effect the registration of any transfer of the Equity
Certificate unless, prior to such transfer the Owner Trustee shall have received
(i) a Tax Opinion, and (ii) a certificate from the proposed transferee
certifying that (A) following such transfer, there would be no more than one
holder of the Equity Certificate and the holder of the Equity Certificate would
not be a Foreign Person, a partnership, Subchapter S corporation or grantor
trust and (B) such transfer does not violate any state securities or Blue Sky
laws or the Securities Act.
Section 3.02. The Equity Certificate.
(a) On the Closing Date, the Equity Certificate shall be
issued to the Trust Depositor, substantially in the form of Exhibit B hereto.
Upon receipt of a written order by the Owner Trustee from the Trust Depositor to
execute and authenticate the Equity Certificate, the Equity Certificate shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and, when so executed
and authenticated pursuant to Section 3.03, shall be deemed to have been validly
issued and shall be entitled to the benefits of this Agreement. The Equity
Certificate bearing the manual or facsimile signature of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificate or did
not hold such offices at the date of the authentication and delivery of the
Equity Certificate. The Equity Certificate shall be dated the date of its
authentication.
Section 3.03. Authentication and Delivery of Equity
Certificate. The Equity Certificate shall not entitle its holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear on
such Equity Certificate a certificate of authentication substantially in the
form set forth in Exhibit B executed by the Owner Trustee or its authenticating
agent, by manual or facsimile signature; such authentication shall constitute
conclusive evidence that the Equity Certificate shall have been duly
authenticated and delivered hereunder.
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Section 3.04. Registration of Transfer and Exchange of the
Equity Certificate.
(a) The Certificate Registrar shall maintain or cause to be
maintained, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, it shall provide for the registration of the Equity Certificate and
of transfers and exchanges of the Equity Certificate as provided in this
Agreement. The Owner Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering the Equity Certificate and transfers and
exchanges of the Equity Certificate as provided in this Agreement. In the event
that the Owner Trustee notifies 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 State of Delaware, agreeing to act in
accordance with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of the Equity
Certificate otherwise permitted to be transferred in accordance herewith at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
(subject to Section 3.01(b)) execute, authenticate and deliver (or shall cause
its authenticating agent to authenticate and deliver), in the name of the
designated transferee, one new Equity Certificate.
(c) Every Equity Certificate presented or surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of the Equity Certificate, but the Owner Trustee or
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer of
the Equity Certificate.
(e) All Equity Certificates surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed by the Owner
Trustee or Certificate Registrar in accordance with its customary practice.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Equity Certificate. If (a) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Equity Certificate, and
(b) there is delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice that such Equity Certificate has been acquired by
a bona fide or protected purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Equity Certificate, a replacement Equity Certificate
of like tenor. In connection with the issuance of any replacement Equity
Certificate under this Section, the Owner Trustee or Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
11
expenses (including the reasonable fees and expenses of the Owner Trustee and
the Certificate Registrar) connected therewith. Any replacement Equity
Certificate issued pursuant to this Section shall constitute conclusive evidence
of beneficial ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Equity Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation
of an Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name the Equity Certificate is registered as the owner of the Equity
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any of their respective agents shall be affected by any
notice of the contrary.
Section 3.07. Access to List of Equity Certificateholder's
Name and Addresses. The Owner Trustee shall furnish or cause to be furnished to
the Servicer, the Indenture Trustee and the Trust Depositor within 15 days after
receipt by the Owner Trustee of a written request therefor from the Servicer,
the Indenture Trustee or the Trust Depositor, the name and address of the Equity
Certificateholder as of the most recent Record Date in such form as the
Servicer, the Indenture Trustee or the Trust Depositor may reasonably require.
The Equity Certificateholder, by receiving and holding the Equity Certificate,
agrees that neither the Servicer, the Trust Depositor nor the Owner Trustee, nor
any agent thereof, shall be held accountable by reason of the disclosure of any
such information as to the name and address of the Equity Certificateholder
hereunder, regardless of the source from which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner
Trustee shall maintain in the State of Delaware an office or offices or agency
or agencies where an Equity Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Equity Certificate and any Transaction Documents may be
served. The Owner Trustee initially designates the 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, the Administrator and the
Equity Certificateholder of any change in the location of the Certificate
Register or any such office or agency.
Section 3.09. Ownership by Trust Depositor of Equity
Certificate. The Trust Depositor shall on the Closing Date purchase from the
Trust the Equity Certificate.
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12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Equity Certificateholder with
Respect to Certain Matters. Subject to the provisions and limitations of Section
4.04, with respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Equity Certificateholder in writing of the
proposed action, the Indenture Trustee shall have consented to such action in
the event any Notes are outstanding and the Equity Certificateholder shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Equity Certificateholder has withheld consent or
provided alternative direction:
(a) the initiation of any material claim or lawsuit by the
Trust (except claims or lawsuits brought in connection with the collection of
Trust Assets) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of Trust Assets);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture, the Cash Collateral Account Agreement, the Class A-2 Swap Agreement
or the Class A-3 Swap Agreement in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture, the Cash Collateral Account Agreement or the Class A-3 Swap Agreement
in circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Owner;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner or add any provision that would not materially and
adversely affect the interest of the Owner; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.02. Action by Owner with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owner, to (a) remove
the Administrator pursuant to Section 8 of the Administration Agreement, (b)
appoint a successor Administrator pursuant to Section 8 of the Administration
Agreement, (c) remove the Servicer pursuant to Article VIII of the Pooling
Agreement, (d) except as otherwise expressly provided in the relevant
Transaction Documents,
13
release or convey from the Trust any Trust Assets, (e) initiate any claim, suit
or proceeding by the Trust or compromise any claim, suit or proceeding brought
by or against the Trust, (f) authorize the merger or consolidation of the Trust
with or into any other business trust or entity (other than in accordance with
applicable restrictions or conditions thereon contained in the relevant
Transaction Document) or (g) amend the Certificate of Trust (unless such
amendment is required to be filed under the Business Trust Statute). Except to
the extent otherwise provided in (d), (f) and (g) above, the Owner Trustee shall
take the actions referred to in the preceding sentence upon (and only upon)
written instructions signed by the Owner.
Section 4.03. Action by Owner with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is no longer Solvent.
Section 4.04. Restrictions on Owner's Power. Neither the
Administrator nor the Owner shall direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
other Transaction Documents, or would be contrary to the purpose of this Trust
as set forth in Section 2.03, nor shall the Owner Trustee be obligated to follow
any such direction, if given, or to determine whether any such direction
violates this Section 4.04.
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14
ARTICLE V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. [Reserved].
Section 5.02. [Reserved].
Section 5.03. Reports. On each Payment Date, the Owner Trustee
shall send or cause to be sent to the Equity Certificateholder the statement or
statements received by the Owner Trustee from the Servicer pursuant to Section
9.01 of the Pooling Agreement with respect to such Payment Date.
Section 5.04. Taxes. In the event that any withholding tax is
imposed on the Trust's payment (or allocation of income) to the Equity
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Equity Certificateholder in accordance with this Section. The Owner Trustee
is hereby authorized and directed to retain from amounts otherwise distributable
to the Equity Certificateholder sufficient funds for the payment of any tax that
is legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the
Equity Certificateholder shall be treated as cash distributed to such Equity
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section. In the event
that the Equity Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the Equity
Certificateholder in making such claim so long as the Equity Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
Section 5.05. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the Equity Certificateholder on any Payment
Date shall be made to the Equity Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
the Equity Certificateholder at a bank or other entity having appropriate
facilities therefor, which the Equity Certificateholder shall have designated to
the Certificate Registrar, with appropriate written wire transfer instructions,
at least three Business Days prior to such Payment Date. In the absence of such
designation, such distributions shall be made by check mailed to such the Equity
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.06. No Segregation of Moneys; No Interest. Moneys
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
15
Section 5.07. Accounting and Reports to the Equity
Certificateholder, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis and the accrual method of accounting, (b) deliver or cause
to be delivered to the Equity Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Form 1099 or Schedule K-1) to enable the Equity Certificateholder to
prepare its federal and state income tax returns, (c) file or cause to be filed
such tax returns relating to the Trust and make such elections as from time to
time may be required or appropriate under any applicable state or federal
statute or any rule or regulation thereunder so as to maintain the federal
income tax treatment for the Trust as set forth in Section 2.11, (d) cause such
tax returns to be signed in the manner required by law and (e) collect or cause
to be collected any withholding tax as described in and in accordance with
Section 5.04 with respect to income or distributions to the Equity
Certificateholder. The Owner Trustee shall elect under Section 1278 of the Code
to include in income currently any market discount that accrues with respect to
Contracts becoming part of the Contract Pool. If applicable, the Owner Trustee
shall not make the election provided under Section 754 or Section 761 of the
Code.
Section 5.08. Signature on Returns; Tax Matters Partner.
(a) The Owner shall sign on behalf of the Trust the tax
returns of the Trust, if any.
(b) If Subchapter K of the Code should be applicable to the
Trust, the Owner shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust from time to time the
Transaction Documents to which the Trust is or becomes a party and each
certificate and other document attached as an exhibit to or contemplated by such
Transaction Documents and any amendment or other agreement relating thereto (in
each case, in such form as is furnished to the Owner Trustee from time to time
by or on behalf of the Trust Depositor or Equity Certificateholder or their
respective counsel), as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator directs or recommends in writing
with respect to the Transaction Documents.
Section 6.02. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged through the Administrator
or such other agents as shall be appointed) all of its responsibilities pursuant
to the terms of this Agreement and the Transaction Documents to which the Trust
is a party and to administer the Trust in the interest of the Equity
Certificateholder, subject to the Transaction Documents and in accordance with
the provisions of this Agreement. Without limiting the foregoing, the Owner
Trustee shall on behalf of the Trust file and prove any claim or claims that may
exist against a Financing Originator or TCC in connection with any claims-paying
procedure as part of a proceeding in respect of an Insolvency Event involving
such Financing Originator or TCC. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the other Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee or the Trust hereunder or under any
such Transaction Document, and the Owner Trustee shall not be held liable for
the default or failure of the Administrator to carry out its obligations under
the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article IV, and in all events subject to the
terms of the applicable Transaction Documents, the Equity Certificateholder may
by written instruction direct the Owner Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other applicable Transaction Document or
is otherwise contrary to law.
17
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as it deems appropriate under the
circumstances) to the Equity Certificateholder requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in good
faith in accordance with any written instruction received from the Equity
Certificateholder, the Owner Trustee shall not be liable on account of such
action to any Person. Until the Owner Trustee shall have received the requested
instruction it may, but shall be under no duty to, take or refrain from taking
such action, as it shall deem to be in the best interests of the Equity
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or believes any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as it deems appropriate under the circumstances)
to the Equity Certificateholder requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received from the Equity Certificateholder, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. Until the Owner Trustee shall have received the requested instruction it
may, but shall be under no duty to, take or refrain from taking such action, as
it shall deem to be in the best interests of the Equity Certificateholder, and
shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary,
the Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the registration with, licensing by or the taking of any other similar
action in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware being payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee
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 11.05.
Section 6.04. No Duties Except as Specified in This Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Assets, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement (including Section 6.02) or any document or written
instruction received by the Owner Trustee pursuant to Article IV or Section
6.03; and no implied duties or obligations
18
shall be read into this Agreement or any other Transaction Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any securities law filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Assets that result from actions by, or claims against, the Owner Trustee,
in its individual capacity, that are not related to the ownership or the
administration of the Trust Assets or the transactions contemplated by the
Transaction Documents.
Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Assets except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Transaction Documents,
or (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Article IV or Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take
any action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, to the actual knowledge of a Responsible Officer of
the Owner Trustee, would result in the Trust's becoming taxable as a corporation
for federal or state income tax purposes. Neither the Administrator nor the
Equity Certificateholder shall direct the Owner Trustee to take actions that
would violate the provisions of this Section.
Section 6.07. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of
the Trust all documents, reports, filings, instruments and opinions as it shall
be the duty of the Trust to prepare, file or deliver pursuant to the Transaction
Documents. Pursuant to the Administration Agreement, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator as agent and attorney-in-fact of the Trust and the Owner Trustee
to execute all such documents, reports, filings, instruments and opinions.
(b) If the Administrator shall resign or be removed pursuant
to the terms of the Administration Agreement, the Owner Trustee may, at the
written direction of the Required Holders, appoint or consent to the appointment
of a successor Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner
Trustee may, and is hereby authorized and empowered to, at the written direction
of the Equity Certificateholder, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
19
(d) The Owner Trustee shall promptly notify the Equity
Certificateholder of any default by or misconduct of the Administrator under the
Administration Agreement of which the Owner Trustee has received written notice
or of which a Responsible Officer of the Owner Trustee has actual knowledge.
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20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance 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 Assets upon the terms of the Transaction
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Transaction Document under any
circumstances, except that the foregoing limitation shall not limit the
liability, if any, that the Owner Trustee may have to the Equity
Certificateholder (i) for the Owner Trustee's own willful misconduct or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee in its individual
capacity, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
6.04 hereof, (iv) for any investments issued by the Owner Trustee or any branch
or affiliate thereof in its commercial capacity, or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or any other Transaction Document. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee which
did not result from negligence on the part of such Responsible Officer;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Equity Certificateholder;
(c) no provision of this Agreement or any other Transaction
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Assets, or for or in respect
of the validity or sufficiency of any Transaction Documents, other than its
signature on behalf of the Trust on, and the certificate of authentication on,
the Equity Certificate, and the
21
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or, other than as expressly provided for herein, to
the Equity Certificateholder;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee or
the Servicer under any of the Transaction Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or the other Transaction Documents that are required
to be performed by the Administrator under this Agreement or the Administration
Agreement, by the Indenture Trustee under the Indenture or by the Servicer or
the Trust Depositor under any Transaction Document; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Transaction Document, at the request,
order or direction of the Equity Certificateholder, unless the Equity
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any other
Transaction Document shall not be construed as a duty, and, except as otherwise
provided in the third sentence of Section 7.01, the Owner Trustee shall not be
answerable for the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Equity Certificateholder promptly upon receipt of a written
request therefor from an Equity Certificateholder, duplicates or copies of all
reports, notices, requests, demands, Equity Certificate, financial statements
and any other instruments furnished to the Owner Trustee under the Transaction
Documents.
Section 7.03. Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Trust Depositor and the Equity
Certificateholder that:
(a) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States. It has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to execute and deliver on behalf of the
Trust each other Transaction Document to which the Trust is a party ("Related
Documents").
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and, on behalf of the Trust,
the Related Documents, and this Agreement and each Related Document will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver the same on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement or, on behalf of the Trust, any Related Document, nor the consummation
by it of the transactions contemplated hereby nor compliance by it with any of
the terms or provisions hereof will contravene any federal law, governmental
rule or regulation governing the banking or trust powers of the Owner
22
Trustee or any judgment or order binding on it, or constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its properties may be
bound or result in the creation or imposition of any lien, charge or encumbrance
on the Trust Assets resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the other
Transaction Documents.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or any other authorized officer of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or
other Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into by any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys as shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons, provided that such actions do not
violate the express terms of the Transaction Documents.
Section 7.05. Not Acting in Individual Capacity. Except as
otherwise expressly provided in this Article VII, in accepting the trusts hereby
created, Allfirst Financial Center National Association acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any other Transaction Document shall look only to the Trust
Assets for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Notes, Equity
Certificate or Contracts. The recitals contained herein and in the Equity
Certificate (other than the signature of the Owner Trustee on behalf of the
Trust on, and the certificate of authentication on, the Equity Certificate)
shall be taken as the statements of the Trust Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, any
other Transaction Document or the Equity Certificate (other than the signature
of the Owner Trustee and the
23
certificate of authentication on the Equity Certificates), or of any Contract or
related documents or assets. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Contract, or the perfection and priority of any security
interest created by any Contract in any related Equipment or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Trust Assets or the ability of such Trust Assets to generate the payments to
be distributed to the Equity Certificateholder under this Agreement or the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Equipment; the existence and enforceability of
any insurance thereon; the existence and contents of any Contract or any
computer or other record thereof; the validity of the assignment of any Contract
to the Trust or of any intervening assignment; the completeness of any Contract;
the performance or enforcement of any Contract; the compliance by the Trust
Depositor, applicable Financing Originator, TCC or the Servicer with any
warranty or representation made under any Transaction Document or in any related
document or the accuracy of any such warranty or representation; or any action
of the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee or the Trust.
Section 7.07. Owner Trustee May Own Notes. The Owner Trustee
in its individual or any other capacity may become the owner or pledgee of Notes
or the Equity Certificate and may deal with the Trust Depositor, the
Administrator, the Indenture Trustee, Servicer and Affiliates thereof in banking
transactions with the same rights as it would have if it were not Owner Trustee.
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24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon between the Owner Trustee and the Servicer and
which shall be paid consistent with Section 5.19 of the Pooling Agreement.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust
Depositor or Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided, however, that the Owner Trustee shall only be entitled to
reimbursement for expenses hereunder to the extent such expenses (i) are fees
and expenses of outside counsel engaged by the Owner Trustee in respect of the
performance of its obligations hereunder, or (ii) relate to the performance of
its obligations hereunder.
Section 8.02. Indemnification. The Trust Depositor shall be
liable as primary obligor for, and hereby indemnifies and holds harmless the
Owner Trustee (including in its individual capacity) and its successors, assigns
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, any other Transaction Document,
the Trust Assets, the administration of the Trust Assets or the action or
inaction of the Owner Trustee hereunder; provided, however, the Trust Depositor
shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.01; provided, further, that the liability of the
Trust Depositor under this Section shall be limited to the assets of the Trust
Depositor and any indemnity payments to be made pursuant to this Section shall
not be made from the Trust Assets and such indemnity payments, if unpaid, do not
constitute a general recourse claim against the Trust. The indemnities contained
in this Section shall survive the resignation, removal or termination of the
Owner Trustee or the termination of this Agreement or the Trust. In the event of
any claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Trust Depositor, which approval shall not be unreasonably
withheld. The indemnities contained in this Section shall be in addition to the
indemnities provided by the Servicer pursuant to the Pooling Agreement and the
Administrator pursuant to the Administration Agreement. The Trust Depositor
hereby agrees to advance to each Indemnified Party Expenses (including
reasonable fees and expenses of counsel) incurred by such Indemnified Party, in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Trust Depositor of an undertaking, by or on behalf of such Indemnified
Party, to repay such amount if it shall be determined that such Indemnified
Party is not entitled to be indemnified therefor under this Section 8.02.
Notwithstanding any provision in this Agreement or any other Transaction
Document to the contrary, the obligations of the Trust Depositor under this
Section 8.02 shall
25
survive the resignation or removal of any trustee of the Trust, shall survive
the termination of this Agreement and the termination of the Trust.
Section 8.03. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any other Transaction Document, but without
limiting the rights of the Owner Trustee or any other Indemnified Party under
Section 8.02, the Owner Trustee agrees in its individual capacity and in its
capacity as Owner Trustee for the Trust that all obligations of the Trust to the
Owner Trustee individually or as Owner Trustee for the Trust shall be recourse
to the Trust Assets only and specifically shall not be recourse to the assets of
the Equity Certificateholder.
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26
ARTICLE IX
TERMINATION OF TRUST
Section 9.01. Termination of Trust.
(a) The Trust created by this Agreement shall dissolve upon
the earliest of (i) the maturity or other liquidation of the last Contract and
related Transferred Assets, and the subsequent distribution of amounts in
respect of such Transferred Assets as provided in the Transaction Documents, or
(ii) the payment to the Noteholders and any other party entitled thereto of the
entire outstanding principal balance of the Notes, together with accrued
interest thereon to the date of repayment, and all other amounts required to be
paid to such parties or to which such parties are entitled pursuant to this
Agreement, the Pooling Agreement and the other Transaction Documents, or (iii)
at the time provided in Section 9.02 below; provided that the rights to
indemnification under Section 8.02 shall survive the dissolution and termination
of the Trust. The Servicer shall promptly notify the Owner Trustee and the
Administrative Agent of any prospective dissolution pursuant to this Section
9.01. Except as provided in Section 9.02, the bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of the Equity Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Equity Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Assets, nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust
Depositor nor the Equity Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Promptly upon receipt of notice of final distribution on
the Equity Certificate from the Servicer given pursuant to Section 10.01 of the
Pooling Agreement, the Owner Trustee shall mail written notice to the Equity
Certificateholder specifying (i) the Payment Date upon which final payment of
the Equity Certificate shall be made upon presentation and surrender of Equity
Certificate at the office of the Owner Trustee as therein specified, (ii) the
amount of any such final payment, and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only upon
presentation and surrender of the Equity Certificate at the office of the Owner
Trustee therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Equity Certificateholder. Upon presentation and
surrender of the Equity Certificate, the Owner Trustee shall direct the
Indenture Trustee to distribute to the Equity Certificateholder amounts
distributable on such Payment Date.
(d) In the event that the Equity Certificateholder shall not
surrender the Equity Certificate for cancellation within six months after the
date specified in the above-mentioned written notice, the Owner Trustee shall
give a second written notice to the Equity Certificateholder to surrender the
Equity Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice the Equity
Certificate
27
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 Equity Certificateholder concerning surrender of the Equity Certificate, and
the cost thereof shall be paid out of the funds and other assets that remain
subject to this Agreement. Any funds which are payable to the Equity
Certificateholder remaining in the Trust after exhaustion of such remedies shall
be distributed by the Owner Trustee to the Trust Depositor.
(e) Upon the completion of winding up of the Trust following
its dissolution, the Owner Trustee shall cause the Certificate of Trust to be
canceled by filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust Statute,
and upon the effectiveness thereof, this Agreement and the Trust shall be
terminated.
Section 9.02. Dissolution upon Bankruptcy of Trust Depositor.
In the event that an Insolvency Event shall occur with respect to the Trust
Depositor, then this Agreement shall be terminated in accordance with Section
9.01 90 days after the date of such event, unless within such 90 day period, the
Owner Trustee shall have received written instructions from the Required Holders
not to dissolve or terminate the Trust. Promptly after the occurrence of an
Insolvency Event with respect to the Trust Depositor (i) the Trust Depositor
shall give the Indenture Trustee and Owner Trustee written notice thereof, and
the Indenture Trustee shall give prompt written notice to the Noteholders
thereof. Upon a termination pursuant to this Section, the Owner Trustee shall
request 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 shall be treated, allocated and distributed as Available
Pledged Revenues in accordance with the Pooling Agreement.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a Person (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers and subject to supervision or examination by federal or
state authorities; (iii) having (or having a parent which has) a combined
capital and surplus of at least $50,000,000; (iv) having (or having a parent
which has) a rating of at least Baa3 by Moody's and BBB by Standard & Poor's;
(v) which is not an Affiliate of the Issuer, the Trust Depositor, or any
Financing Originator, and (vi) does not offer or provide credit or credit
enhancement to the Issuer or the Trust Depositor. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Trust Depositor and the Servicer
at least 30 days before the date specified in such instrument. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 10.01 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Trust Depositor shall promptly
appoint a successor Owner Trustee meeting the qualification requirements of
Section 10.01 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee together with payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until
29
all fees and expenses, including any indemnity payments, due to the outgoing
Owner Trustee have been paid and until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03.
Section 10.03. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Trust Depositor and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties, and obligations
of its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall, upon receipt of fees,
expenses and indemnity due and owing to the Owner Trustee deliver to the
successor Owner Trustee all documents and statements and monies held by it under
this Agreement; and the Trust Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice thereof to the
Equity Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Trust
Depositor.
Any successor Owner Trustee appointed pursuant to this Section
10.03 shall file an amendment to the Certificate of Trust with the Delaware
Secretary of State identifying the name and principal place of business of such
successor in the State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee. Any
Person into which the Owner Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 11.01, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto. Notwithstanding anything contained herein to the contrary, the successor
Owner Trustee under this Section 10.04 shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State identifying the name
and principal place of business of such successor in the State of Delaware.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting
30
any legal requirements of any jurisdiction in which any part of the Trust Assets
may at the time be located, the Owner Trustee shall have the power and, at the
request of the Trust Depositor, shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all
or any part of the Trust Assets, and to vest in such Person, in such capacity,
such title to the Trust Assets, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Owner Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.01 and no notice of
the appointment of any co-trustee or separate trustee shall be required pursuant
to Section 10.01.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust Assets or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement; and
(c) the Owner Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended by the Trust Depositor and
the Owner Trustee, without the consent of any of the Noteholders or the Equity
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; provided, however, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Noteholder or the Equity Certificateholder.
(b) This Agreement may also be amended from time to time by
the Trust Depositor and the Owner Trustee, with the consent of the Required
Holders and the Equity Certificateholder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Equity Certificateholder; provided, however, that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, (i) collections of payments on Contracts or distributions that shall
be required to be made for the benefit of the Noteholders or the Equity
Certificateholder, or (ii) change in any manner the Noteholder or Equity
Certificateholder consent required for any such amendment, without the consent
of the Holders of all outstanding Notes and the Equity Certificates.
(c) Prior to the execution of any such amendment or consent,
the Trust Depositor shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee and
the Administrator.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to the Equity Certificateholder and the Rating
Agencies. It shall not be necessary for the consent of the Equity
Certificateholder, Noteholders or the Indenture Trustee pursuant to this Section
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the Equity
Certificateholder provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by the
Equity Certificateholder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(f) Prior to the execution of any amendment or supplement to
this Agreement or the Certificate of Trust, the Owner Trustee shall be entitled
to receive and rely upon an
33
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the other Transaction Documents, and that all
conditions precedent to the execution and delivery of such amendment as set
forth in the applicable Transaction Documents have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02. Limitations on Rights of Others. Except for
Section 2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Trust Depositor, the Owner, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee, the Noteholders and the
Equity Certificateholder, and nothing in this Agreement (other than Section
2.07), whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Assets or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 11.03. Notices. All notices, demands, Equity
Certificate, requests and communications hereunder ("notices") shall be in
writing and shall be effective (a) upon receipt when sent through the U.S.
mails, registered or certified mail, return receipt requested, postage prepaid,
with such receipt to be effective the date of delivery indicated on the return
receipt, or (b) one Business Day after delivery to an overnight courier, or (c)
on the date personally delivered to an authorized officer of the party to which
sent, or (d) on the date transmitted by legible telefax transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the initial Servicer/Administrator:
AT&T Capital Corporation
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
c/o The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
34
(iii) If to the Owner Trustee:
Allfirst Financial Center National Association
000 Xxxxxxxx Xxxx - MC 101-591
Xxxxxxxxx, Xxxxxxxx 00000
Attention:
Corporate Trust Administration - CIT 2000-1
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(iv) If to the Indenture Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xx.,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Capital Markets Fiduciary Services /
Structured Finance Services, CIT 2000-1
Fax No.: (000) 000-0000/8302
Telephone No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith
to each of the other parties hereto, designate any further or different address
to which subsequent notices shall be sent.
Section 11.04. Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the
Equity Certificate or the rights of the Equity Certificateholder thereof.
Section 11.05. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.06. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the Trust Depositor, and the Owner Trustee and their respective
successors and permitted assigns and the Owner and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Owner shall bind the successors and assigns
of such Owner.
35
Section 11.07. No Petition.
(a) The Trust Depositor will not at any time institute against
(or solicit or cooperate with or encourage any Person to institute against) the
Trust any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Equity Certificate, the Notes, this Agreement or any of the other Transaction
Documents existing from time to time.
(b) The Owner Trustee, by entering into this Agreement, and
the Equity Certificateholder, by accepting the Equity Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against (or solicit or cooperate with or encourage any Person to institute
against) the Trust Depositor or the Trust, or join in any institution against
the Trust Depositor or the Trust of, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Equity Certificate, the Notes, this Agreement or any
of the other Transaction Documents existing from time to time.
Section 11.08. No Recourse. The Equity Certificateholder by
accepting the Equity Certificate acknowledges that the Equity
Certificateholder's Equity Certificate represents beneficial interests in the
Trust only and does not represent interests in or obligations of the Trust
Depositor, the Servicer, any Financing Originator, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Equity Certificate or
the other applicable Transaction Documents.
Section 11.09. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.11. Certain Servicer Payment Obligations. It is
understood that the Servicer shall be responsible for payment of the
Administrator's compensation pursuant to Section 3 of the Administration
Agreement and shall reimburse the Administrator for all expenses and liabilities
of the Administrator incurred thereunder, consistent with the provisions of
Section 5.19 of the Pooling Agreement. The parties hereto agree that any such
payments, if unpaid, do not constitute a general recourse claim against the
Trust or the Trust Assets.
Section 11.12. JURISDICTION. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS
36
THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
OF THE AFOREMENTIONED COURTS.
Section 11.13. WAIVER OF JURY TRIAL. EACH PARTY TO THIS
AGREEMENT WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF
OR THEROF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND
RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
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37
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
ALLFIRST FINANCIAL CENTER NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
38
EXHIBIT A
[Reserved]
A-1
EXHIBIT B
Form of Equity Certificate
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO NOTES TO THE EXTENT
DESCRIBED IN THE TRUST AGREEMENT AND THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN NCT
FUNDING COMPANY, L.L.C., THE CIT GROUP, INC., AT&T CAPITAL CORPORATION OR ANY
AFFILIATE THEREOF, OTHER THAN THE CIT EQUIPMENT COLLATERAL 2000-1. THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED UNLESS THE
CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN COMPLIED
WITH.
THIS CERTIFICATE IS TRANSFERRABLE ONLY IN WHOLE AND NOT IN PART.
THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM.
CIT EQUIPMENT COLLATERAL 2000-1
EQUITY CERTIFICATE
NO. 1 Equity Certificate
THIS CERTIFIES THAT NCT Funding Company, L.L.C. is the
registered owner of a beneficial interest in the CIT Equipment Collateral 2000-1
(the "Trust") formed by NCT Funding Company, L.L.C., a Delaware limited
liability company (the "Trust Depositor").
The Trust is governed by an Amended and Restated Trust
Agreement dated as of April 1, 2000 (as amended, restated, supplemented and/or
otherwise modified from time to time, the "Trust Agreement"), between NCT
Funding Company, L.L.C., as Trust Depositor (the "Trust Depositor"), and
Allfirst Financial Center National Association, as Owner Trustee, a summary of
certain of the pertinent provisions of which is set forth below. In the event of
any conflict or inconsistency between this Certificate and the Trust Agreement
(or the Pooling Agreement, as the case may be), the Trust Agreement (or the
Pooling Agreement, as the case may be) shall govern. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings which would
be given to them if used in the Trust Agreement.
This Certificate is the duly authorized Equity Certificate
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust
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Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound. The Trust has also issued Notes, in
right of payment to which this Equity Certificate is subordinate. The property
of the Trust includes, among other things, all the right, title and interest of
the Trust Depositor in and to the Transferred Assets identified in one or more
related Transfer Agreements delivered from time to time on related Transfer
Dates.
The amount to be distributed to the Holder of this Certificate
on each Payment Date will be determined pursuant to the Pooling Agreement.
The Holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of Noteholders to the extent described in the Trust
Agreement and the Pooling Agreement.
It is the intent of each Financing Originator, the Servicer,
the Administrator, the Trust Depositor, the Owner Trustee, and the Equity
Certificateholder that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all items of income,
deduction, gain, loss or credit of the Trust will be treated as such items of
the Equity Certificateholder. The Trust Depositor and the Equity
Certificateholder, by acceptance of this Certificate, agrees to treat, and to
take no action inconsistent with such treatment of, the Trust for federal income
tax purposes.
The Equity Certificateholder, by its acceptance of this
Certificate or a beneficial interest in the Trust evidenced by this Certificate,
covenants and agrees that such Equity Certificateholder will not at any time
institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust or the Trust Depositor, or join in any institution
against the Trust or the Trust Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, the Trust Agreement or
any of the other Transaction Documents in existence from time to time.
Distributions on this Certificate from or in respect of Trust
Assets will be made as provided in the Trust Agreement and the Pooling
Agreement, by the Indenture Trustee or its agent by wire transfer or check
mailed to the Equity Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the
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holder hereof to any benefit under the Trust Agreement or any other Transaction
Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an
interest in, the Trust Depositor, AT&T Capital Corporation, The CIT Group, Inc.,
any Financing Originator, the Owner Trustee, or any of their respective
Affiliates (other than the Trust) and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the other Transaction Documents. In addition, this
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with
respect to the Trust Assets and certain other amounts, in each case as more
specifically set forth in the Trust Agreement and in the Pooling Agreement. A
copy of each of the Pooling Agreement and the Trust Agreement may be examined by
any Equity Certificateholder upon written request during normal business hours
at the principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Equity
Certificateholder under the Trust Agreement at any time by the Trust Depositor
and the Owner Trustee, with the consent of the parties described therein. Any
such consent shall be conclusive and binding on the Equity Certificateholder and
on all future Equity Certificateholder of this Certificate and of any
Certificate issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent is made upon
this Certificate.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar executed by the
Equity Certificateholder hereof or such Equity Certificateholder's attorney duly
authorized in writing, and thereupon a new Certificate evidencing the same
beneficial interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is the
Owner Trustee.
Except as provided in the Trust Agreement, this Certificate is
issuable only as a registered Equity Certificate without coupons. No service
charge will be made for any registration of transfer of this Certificate, but
the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
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The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to the
Equity Certificateholder of all amounts required to be paid to such Equity
Certificateholder pursuant to the Trust Agreement and the Pooling Agreement and
the disposition in accordance with any applicable Transaction Document of all
property held as part of the Trust Assets.
This Certificate may not be acquired by a Benefit Plan. By
accepting and holding this Certificate, the Holder hereof shall be deemed to
have represented and warranted that it is not a Benefit Plan and is not
acquiring this Certificate for the account of such an entity.
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
Dated: _______ __, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association,
not in its individual capacity but solely as
Owner Trustee
By:
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the
within-mentioned Trust Agreement.
Allfirst Financial Center National Association,
not in its individual capacity but solely as
Owner Trustee
By:
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, will
full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment
an eligible guarantor institution. must correspond with the name of the
registered owner as it appears on the face of the
within Certificate in every particular, without
alteration or enlargement or any change
whatever.
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