EXECUTION COPY
TRUST AGREEMENT
Dated as of December 28, 1995
between
OLYMPIC RECEIVABLES FINANCE CORP. II
and
WILMINGTON TRUST COMPANY
Owner Trustee
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Usage of Terms . . . . . . . . . . . . . . . . . . . . . 4
Section 1.3. Section References . . . . . . . . . . . . . . . . . . . 4
Section 1.4. Action by or Consent of Certificateholders . . . . . . . 5
ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust. . . . . . . . . . . . . . . . . . . . 5
Section 2.2. Office . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3. Purposes and Powers. . . . . . . . . . . . . . . . . . . 5
Section 2.4. Appointment of Owner Trustee . . . . . . . . . . . . . . 6
Section 2.5. Initial Capital Contribution of Trust Estate . . . . . . 6
Section 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . . 7
Section 2.7. Liability of the Certificateholders. . . . . . . . . . . 7
Section 2.8. Title to Trust Property. . . . . . . . . . . . . . . . . 8
Section 2.9. Situs of Trust . . . . . . . . . . . . . . . . . . . . . 8
Section 2.10. Representations and Warranties of the Depositor and the
General Partner. . . . . . . . . . . . . . . . . . . . . 8
Section 2.11. Federal Income Tax Treatment . . . . . . . . . . . . . . 9
Section 2.12. Covenants of the General Partner . . . . . . . . . . . . 11
Section 2.13. Covenants of the Holders . . . . . . . . . . . . . . . . 12
ARTICLE III
THE CERTIFICATES
Section 3.1. Initial Ownership. . . . . . . . . . . . . . . . . . . . 13
Section 3.2. The Certificates . . . . . . . . . . . . . . . . . . . . 13
Section 3.3. Authentication of Certificates . . . . . . . . . . . . . 14
Section 3.4. Registration of Transfer and Exchange of Certificates. . 14
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. . . . 15
Section 3.6. Persons Deemed Owners. . . . . . . . . . . . . . . . . . 15
Section 3.7. Maintenance of Office or Agency. . . . . . . . . . . . . 16
Section 3.8. Appointment of Paying Agent. . . . . . . . . . . . . . . 16
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Restriction on Power of Certificateholder. . . . . . . . 17
Section 4.2. Prior Notice to Certificateholders with Respect to
Certain Matters. . . . . . . . . . . . . . . . . . . . . 17
Section 4.3. Action by Certificateholders with Respect to
Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.4. Restrictions on Certificateholders' Power. . . . . . . . 17
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Trust Accounts . . . . . . . . . . . . . . . . . . . . . 18
Section 5.2. Application of Funds in Certificate Distribution
Account. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.3. Method of Payment. . . . . . . . . . . . . . . . . . . . 22
Section 5.4. No Segregation of Monies; No Interest. . . . . . . . . . 22
Section 5.5. Accounting; Reports; Tax Returns . . . . . . . . . . . . 22
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. General Authority. . . . . . . . . . . . . . . . . . . . 23
Section 6.2. General Duties . . . . . . . . . . . . . . . . . . . . . 23
Section 6.3. Action upon Instruction. . . . . . . . . . . . . . . . . 24
Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.5. No Action Except under Specified Documents or
Instructions . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.6. Restrictions . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.7. Administration Agreement . . . . . . . . . . . . . . . . 26
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. Acceptance of Trustee and Duties . . . . . . . . . . . . 26
Section 7.2. Furnishing of Documents. . . . . . . . . . . . . . . . . 28
Section 7.3. Representations and Warranties . . . . . . . . . . . . . 28
Section 7.4. Reliance; Advice of Counsel. . . . . . . . . . . . . . . 29
Section 7.5. Not Acting in Individual Capacity. . . . . . . . . . . . 29
Section 7.6. Owner Trustee Not Liable for Certificates, Notes or
Receivables. . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.7. Owner Trustee May Own Certificates and Notes . . . . . . 30
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. Owner Trustee's Fees and Expenses. . . . . . . . . . . . 30
Section 8.2. Indemnification. . . . . . . . . . . . . . . . . . . . . 30
Section 8.3. Non-recourse Obligations . . . . . . . . . . . . . . . . 31
ARTICLE IX
TERMINATION; RECAPITALIZATION
Section 9.1. Termination of the Trust . . . . . . . . . . . . . . . . 31
Section 9.2. Dissolution Events with respect to the General Partner . 33
Section 9.3. Securitized Offering . . . . . . . . . . . . . . . . . . 33
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. Eligibility Requirements for Owner Trustee . . . . . . . 34
Section 10.2. Resignation or Removal of Owner Trustee. . . . . . . . . 34
Section 10.3. Successor Owner Trustee. . . . . . . . . . . . . . . . . 35
Section 10.4. Merger or Consolidation of Owner Trustee . . . . . . . . 36
Section 10.5. Appointment of Co-Trustee or Separate Trustee. . . . . . 36
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.2. No Recourse. . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.3. Governing Law. . . . . . . . . . . . . . . . . . . . . . 39
Section 11.4. Severability of Provisions . . . . . . . . . . . . . . . 39
Section 11.5. Certificates Nonassessable and Fully Paid. . . . . . . . 39
Section 11.6. Third-Party Beneficiaries. . . . . . . . . . . . . . . . 40
Section 11.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.8. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 40
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EXHIBITS
Exhibit A -- Form of Certificate of Trust
Exhibit B -- Form of Certificate
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THIS TRUST AGREEMENT, dated as of December 28, 1995, is made between
Olympic Receivables Finance Corp. II, a Delaware corporation (the "Seller") and
Wilmington Trust Company, a Delaware corporation, as Owner Trustee (in such
capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. All terms defined in the Sale and
Servicing Agreement (as defined below) shall have the same meaning in this
Agreement. Whenever capitalized and used in this Agreement, the following
words and phrases, unless otherwise specified, shall have the following
meanings:
ADMINISTRATION AGREEMENT: The Administration Agreement, dated as
of December 28, 1995, between the Administrator and the Trust, as the same
may be amended and supplemented from time to time.
ADMINISTRATOR: Wilmington Trust Company, a Delaware corporation,
or any successor Administrator under the Administration Agreement.
AGREEMENT OR "THIS AGREEMENT": This Trust Agreement, all
amendments and supplements thereto and all exhibits and schedules to any of
the foregoing.
AUTHENTICATION AGENT: Wilmington Trust Company, or its successor
in interest, and any successor authentication agent appointed as provided in
this Agreement.
BENEFIT PLAN: The meaning assigned in Section 3.4(e).
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time
to time.
CERTIFICATE: A certificate executed by the Owner Trustee
evidencing a fractional undivided interest in the Trust, substantially in the
form of Exhibit B.
CERTIFICATE BALANCE: At any time, as to any Certificate, the
outstanding principal amount of that Certificate; as set forth in the records
maintained by the Trustee; and as to the Certificates as a whole, the sum of
the Certificate Balances for each outstanding Certificate.
CERTIFICATE DISTRIBUTION ACCOUNT: The account designated as the
Certificate Distribution Account in, and which is established and maintained
pursuant to, Section 5.1.
CERTIFICATE MAJORITY: The meaning assigned in Section 1.4(a); see
also Section 1.4(b).
CERTIFICATE OF TRUST: The Certificate of Trust in the form of
Exhibit A hereto filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
CERTIFICATE PURCHASE AGREEMENT: The Certificate Purchase
Agreement, if any, among the Trust, OFL, the investors who execute the
signature pages thereto and X.X. Xxxxxx Delaware, as agent for such
investors, evidencing the commitment of the Investors to purchase
Certificates,as the same may be amended and supplemented from time to time.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained and the registrar appointed pursuant to Section 3.4.
CERTIFICATEHOLDER OR HOLDER: A Person in whose name a Certificate
is registered in the Certificate Register.
CODE: The Internal Revenue Code of 1986, as amended.
CORPORATE TRUST OFFICE: The principal office of the Owner Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration; the telecopy number for the Corporate Trust
Office on the date of the execution of this Agreement is (000) 000-0000.
DEMAND NOTE: The Demand Note, dated December 28, 1995, issued by
OFL to the General Partner.
DEPOSITOR: The Seller in its capacity as depositor hereunder.
DISSOLUTION EVENT: With respect to the General Partner, means the
withdrawal or expulsion of such Person as General Partner of the Trust or the
termination or dissolution of such Person, or the occurrence of an Insolvency
Event with respect to such Person.
EXPENSES: The meaning assigned to such term in Section 8.2.
GENERAL PARTNER: Initially, the Seller, or any subsequent Holder of a
General Partner Certificate.
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GENERAL PARTNER CERTIFICATES: The meaning assigned to such term in
Section 3.2(a).
INDEMNIFIED PARTIES: The meaning assigned to such term in Section
8.2.
INVESTOR CERTIFICATE: Each Certificate (excluding the General
Partner Certificates).
INVESTOR CERTIFICATEHOLDER: Each Certificateholder (excluding the
General Partner as Holder of the General Partner Certificates).
MAXIMUM CERTIFICATE BALANCE: $19,800,000.00.
MINIMUM NET WORTH: At any time of determination, and with respect
to the General Partner, net worth equal to the sum of 7.7% of the Maximum
Certificate Balance. For the purpose of the determination of Minimum Net
Worth: (i) the Demand Note issued to the General Partner shall be valued at
par, (ii) assets subject to a lien shall be valued at zero, (iii)
Certificates or any other interests in any entity taxable as a partnership
for federal income tax purposes shall be valued at zero, (iv) investments
shall be valued at their respective purchase prices plus accrued interest and
(v) demand notes of OFL issued as contributions to the General Partner in
connection with its status as a general partner of any other partnership
formed pursuant to trust agreements substantially similar to this Agreement
shall be valued at an amount equal to the excess, if any, of (a) the
aggregate current amount of all such demand notes over (b) 7.7% of the
aggregate Certificate Balance (as such term is defined in the related trust
agreement) of all certificates issued by such partnerships, as of such date
of determination.
NOTE OWNER: The meaning assigned to such term in the Indenture.
OFL: Olympic Financial Ltd., a Minnesota corporation, and its
successors in interest.
OWNER TRUSTEE: Wilmington Trust Company, or its successor in
interest, acting not individually but solely as trustee, and any successor
trustee appointed as provided in this Agreement.
PAYING AGENT: Any paying agent or co-paying agent appointed
pursuant to Section 3.8, which initially shall be Wilmington Trust Company.
RECORD DATE: With respect to any Distribution Date, the close of
business on the last Business Day immediately preceding such Distribution
Date.
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RELATED DOCUMENTS: The Sale and Servicing Agreement, the
Indenture, the Certificates, the Notes, the Purchase Agreement, each Transfer
Agreement, each Assignment Agreement, the Custodian Agreement, the
Administration Agreement, the Certificate Purchase Agreement and the Note
Purchase Agreement. The Related Documents executed by any party are referred
to herein as "such party's Related Documents," "its Related Documents" or by
a similar expression.
SALE AND SERVICING AGREEMENT: The Sale and Servicing Agreement,
dated as of December 28, 1995 among the Trust, the Seller, OFL, in its
individual capacity and as Servicer, and Norwest Bank Minnesota, National
Association, as Backup Servicer, as the same may be amended and supplemented
from time to time.
SECRETARY OF STATE: The Secretary of State of the State of
Delaware.
SELLER: Olympic Receivables Finance Corp. II, a Delaware
corporation, or its successor in interest.
TRUST: The trust created by this Agreement, the estate of which
consists of the Trust Property.
TRUST PROPERTY: The property and proceeds of every description
conveyed pursuant to Section 2.5 hereof and Section 2.1 of the Sale and
Servicing Agreement, together with the Trust Accounts (including all Eligible
Investments therein and all proceeds therefrom).
Section 1.2. USAGE OF TERMS. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography, and other means of reproducing words
in a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; and the
terms "include" or "including" mean "include without limitation" or
"including without limitation." To the extent that definitions are contained
in this Agreement, or in any such certificate or other document, such
definitions shall control.
Section 1.3. SECTION REFERENCES. All references to Articles,
Sections, paragraphs, subsections, exhibits and schedules shall be to such
portions of this Agreement unless otherwise specified.
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Section 1.4. ACTION BY OR CONSENT OF CERTIFICATEHOLDERS.
(a) Except as expressly provided herein (i) any action that may be
taken by the Certificateholders under this Agreement may be taken by
Certificateholders holding Certificates that evidence a majority of the
Certificate Balance (a "Certificate Majority"), and (ii) any written notice
or consent of the Certificateholders delivered pursuant to this Agreement
shall be effective for such class if signed by Holders of Certificates
evidencing not less than a majority of the Certificate Balance.
(b) Whenever any provision of this Agreement refers to action to be
taken, or consented to, by Certificateholders, such provision shall be
deemed to refer to Certificateholders of record as of the Record Date
immediately preceding the date on which such action is to be taken, or
consent given, by Certificateholders. Solely for the purposes of any
action to be taken, or consented to, by the Certificateholders (including
for purposes of determining whether a Certificate Majority has approved any
action), any Certificate registered in the name of the General Partner, OFL
or any Affiliate thereof shall be deemed not to be outstanding, and the
Certificate Balance represented thereby shall not be taken into account in
determining whether the requisite percentage of the Certificate Balance
necessary to effect any such action or consent has been obtained; PROVIDED,
HOWEVER, that until any Investor Certificates are issued in accordance with
the terms of this Agreement, all references herein or in any Related
Document to a "Certificate Majority" shall mean the holders of the General
Partner Certificates, PROVIDED, FURTHER, that, solely for the purpose of
determining whether the Owner Trustee is entitled to rely upon any such
action or consent, only Certificates which the Owner Trustee knows to be so
owned shall be so disregarded.
ARTICLE II
CREATION OF TRUST
Section 2.1. CREATION OF TRUST. There is hereby formed a trust to
be known as "Olympic Automobile Receivables Warehouse Trust," in which name
the Trust may conduct business, make and execute contracts and other
instruments and xxx and be sued.
Section 2.2. OFFICE. The office of the Trust shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.3. PURPOSES AND POWERS. The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
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(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement and to sell the Notes and the Certificates; to
redeem Notes and Certificates in accordance with the terms and conditions
set forth herein and in the Indenture;
(ii) with the proceeds of the sale of the Notes and the Certificates,
to pay the organizational, start-up and transactional expenses of the Trust
and to pay the balance to the Seller from time to time pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Property to the Indenture Trustee pursuant to the Indenture for the
benefit of the Noteholders and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Property released from the Lien of, and
remitted to the Trust pursuant to, the Indenture; and, in connection with a
purchase of the Trust Property, to assign, grant, transfer, pledge,
mortgage and convey the Trust Property to such purchaser or purchasers and
upon receipt of proceeds from such sale release the Lien of the Indenture;
(iv) to enter into and perform its obligations under the Related
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Related Documents, to engage in
such other activities as may be required in connection with conservation of
the Trust Property and the making of distributions to the
Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or expressly authorized by the terms of
this Agreement or the Related Documents.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $10. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the
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initial Trust Property and shall be deposited in the Certificate Distribution
Account. The Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
Section 2.6. DECLARATION OF TRUST. The Owner Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the use and benefit of the Holders,
subject to the interests and rights in the Trust Property granted to other
Persons by the Related Documents. It is the intention and agreement of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention and agreement of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall be
treated as a partnership. The parties agree that, unless otherwise required
by appropriate tax authorities, the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes. On
the date hereof, the Owner Trustee shall file the Certificate of Trust
required by Section 3810(a) of the Business Trust Statute in the Office of
the Secretary of State. 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 with respect to accomplishing the purposes of the Trust.
Section 2.7. LIABILITY OF THE CERTIFICATEHOLDERS.
(a) The General Partner shall be liable directly to indemnify each
injured party for all losses, claims, damages, liabilities and expenses of
the Trust, to the extent not paid out of the Trust Property, to the extent
that such Person would be liable if the Trust were a partnership under the
Delaware Revised Uniform Limited Partnership Act and such Person were a
general partner; PROVIDED, HOWEVER, that the General Partner shall not be
liable for any losses incurred by a Certificateholder in the capacity of an
investor in the Certificates or a Note Owner in the capacity of an investor
in the Notes; PROVIDED, FURTHER, that the General Partner shall not be
liable to indemnify any injured party if such party has agreed that its
recourse against the Trust for any obligation or liability of the Trust to
such party shall be limited to the assets of the Trust. In addition, any
third party creditors of the Trust (other than in connection with the
obligations described in the provisos to the preceding sentence for which
the General Partner shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the General Partner
under this paragraph shall be evidenced by the General Partner
Certificates, which for purposes of the Business Trust Statute shall be
deemed to be a separate class of Certificates from the Investor
Certificates.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or
obligation of the Trust or by
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reason of any action taken by the parties to this Agreement pursuant to any
provisions of this Agreement or any Related Document.
Section 2.8. TITLE TO TRUST PROPERTY.
(a) Legal title to all the Trust Property 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 Property to be
vested in a trustee or 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.
(b) The Certificateholders shall not have legal title to any part of
the Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title or interest by any Certificateholder
of its ownership interest in the Trust Property shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
Section 2.9. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in 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, the Servicer 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, and payments will be made by the Trust only
from Delaware. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND
THE GENERAL PARTNER. By execution of this Agreement, each of the Depositor
and the General Partner makes the following representations and warranties
with respect to itself on which the Owner Trustee relies in accepting the
Trust Property in trust and issuing the Certificates. These representations
and warranties shall be deemed to be repeated on each day on which Investor
Certificates are issued pursuant to Section 3.2.
(a) ORGANIZATION AND GOOD STANDING. It has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and as such
business is currently conducted and is proposed to be conducted pursuant to
this Agreement and the Related Documents.
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(b) DUE QUALIFICATION. It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property, the conduct of its business and the performance of
its obligations under this Agreement and the Related Documents requires
such qualification.
(c) POWER AND AUTHORITY. It has the power and authority to execute
and deliver this Agreement and its Related Documents and to perform its
obligations pursuant thereto; and the execution, delivery and performance
of this Agreement and its Related Documents have been duly authorized by
all necessary corporate action.
(d) NO CONSENT REQUIRED. No consent, license, approval or
authorization or registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement and the Related
Documents, except for such as have been obtained, effected or made.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and its Related Documents and the fulfillment of its
obligations under this Agreement and its Related Documents shall not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, its certificate of incorporation or by-laws, or any indenture,
agreement, mortgage, deed of trust or other instrument to which it is a
party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, or
violate any law, order, rule or regulation applicable to it of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to its knowledge threatened against it before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over it or its properties (A) asserting
the invalidity of this Agreement or any of the Related Documents, (B)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (C) seeking any determination or ruling that
might materially and adversely affect its performance of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents, or (D) seeking to adversely affect the federal income
tax or other federal, state or local tax attributes of the Certificates.
Section 2.11. FEDERAL INCOME TAX TREATMENT. The Seller has
structured this Agreement and the Investor Certificates with the intention
that the Investor Certificates will
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qualify under applicable federal, state, local and foreign tax law as
indebtedness. The Seller, the Servicer, the Holder of the General Partner
Certificate, and each Investor Certificateholder agree to treat and to take
no action inconsistent with the treatment of the Investor Certificates (or
beneficial interest therein) as indebtedness for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income. Each Investor Certificateholder, and the Holder of the
General Partner Certificate, by acceptance of its Certificate, agree to be
bound by the provisions of this Section 2.11. Furthermore, subject to
Section 5.5, the Trustee shall treat the Trust as a security device only, and
shall not file tax returns or obtain an employer identification number on
behalf of the Trust.
In the event that the Investor Certificates are deemed for federal
income tax purposes to represent an equity interest in the Trust, the Trust
shall be treated for federal income tax purposes as a partnership among the
Holders of such Investor Certificates and the Seller. In the event such a
partnership is deemed to exist, the net income of the Trust for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated:
(a) among the Investor Certificateholders as of the first Record
Date following the end of such month, in proportion to their ownership
of principal amount of Investor Certificates on such date, an amount of
net income up to the Certificateholders' Interest Distributable Amount
for such month; and
(b) next, to the General Partner (with respect to the General
Partner Certificates) in accordance with the Certificate Balance
represented by the General Partner Certificates to the extent of any
remaining net income.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a) above, subsequent net income shall first
be allocated to make up such shortfall before being allocated as provided in
clause (b). Net losses of the Trust, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss and
deduction entering into the computation thereof) shall be allocated to the
General Partner to the extent it is reasonably expected to bear the economic
burden of such net losses, then net losses shall be allocated among the other
Certificateholders as of the first Record Date following the end of such
month in proportion to their ownership of principal amount of Certificates on
such Record Date until the total amount of losses allocated to those
Certificateholders pursuant to this Section 2.11 plus the total principal
amount distributed to them equals the aggregate initial principal balance of
the Investor Certificates and any remaining net losses shall be allocated to
the General Partner. Notwithstanding anything in this Agreement to the
contrary, the General Partner shall be allocated an aggregate of at least 1%
of each item of income, profit, gain or loss of the Trust. The General
Partner is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the
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General Partner or the other Certificateholders, or to comply with the
provisions of the Code and the accompanying Treasury Regulations.
Section 2.12. COVENANTS OF THE GENERAL PARTNER. The General
Partner agrees and covenants for the benefit of each Certificateholder and
the Owner Trustee, during the term of this Agreement, and to the fullest
extent permitted by applicable law, that:
(a) it shall not (i) assign, sell, convey, pledge, transfer,
reconvey, cancel, forgive, compromise or otherwise dispose of the Demand
Note held by it, in whole or in part, (ii) make any distribution other
than to the Trust or unless the aggregate net worth of the General
Partner following such distribution shall be at least equal to the
Minimum Net Worth or (iii) except as specifically permitted by this
Agreement, sell, transfer, assign, give or encumber by operation of law
or otherwise any of its assets;
(b) it shall not, except as permitted by Section 9.2, sell,
assign, transfer, give or encumber, by operation of law or otherwise, in
whole or in part, the interest evidenced by any General Partner
Certificate;
(c) it shall not create, incur or suffer to exist any indebtedness
or engage in any business, except, in each case, as permitted by its
certificate of incorporation and the Related Documents;
(d) it shall not, for any reason, institute proceedings for the
Trust to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust,
or file a petition seeking or consenting to reorganization or relief
under any applicable federal or state law relating to the bankruptcy of
the Trust, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trust
or a substantial part of the property of the Trust or cause or permit
the Trust to make any assignment for the benefit of creditors, or admit
in writing the inability of the Trust to pay its debts generally as they
become due, or declare or effect a moratorium on the debt of the Trust
or take any action in furtherance of any such action;
(e) it shall obtain from each counterparty to each Related
Document to which it or the Trust is a party and each other agreement
entered into on or after the date hereof to which it or the Trust is a
party, an agreement by each such counterparty that prior to the
occurrence of the event specified in Section 9.1(e) such counterparty
shall not institute against, or join any other Person in instituting
against, it or the Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under
the laws of the United States or any state of the United States; and
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(f) it shall not, for any reason, withdraw or attempt to withdraw
from this Agreement, dissolve, institute proceedings for it to be
adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a petition
seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of it or a substantial part of its property,
or make any assignment for the benefit of creditors, or admit in writing
its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of
any such action.
Section 2.13. COVENANTS OF THE HOLDERS. Each Holder by purchasing
its Certificate agrees:
(a) to be bound by the terms and conditions of its Certificate and
of this Agreement, including any supplements or amendments hereto and to
perform the obligations of a Certificateholder as set forth therein or
herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of the Trust, the Owner Trustee and
all other Certificateholders present and future.
(b) to treat and to take no action inconsistent with the treatment
of the Investor Certificates as indebtedness for purposes of federal,
state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income. In the event the Investor
Certificates are deemed for federal income tax purposes to represent an
equity interest in the Trust, each Certificateholder hereby agrees to
appoint the General Partner as such Certificateholder's agent and
attorney-in-fact to sign any federal income tax information return filed
on behalf of the Trust and agree that, if requested by the Trust, it
will sign such federal income tax information return in its capacity as
holder of an interest in the Trust. Each Certificateholder also hereby
agrees that in its tax returns it will not take any position
inconsistent with those taken in any tax returns filed by the Trust.
(c) if such Certificateholder is other than an individual or other
entity holding its Certificate through a broker who reports securities
sales on Form 1099-B, to notify the Owner Trustee of any transfer by it
of a Certificate in a taxable sale or exchange, within 30 days of the
date of the transfer.
(d) until the completion of the events specified in Section
9.1(e), not to, for any reason, institute proceedings for the Trust or a
General Partner to be adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against the
Trust, or file a petition seeking or consenting to reorganization or
relief under any applicable federal or state law relating to bankruptcy,
or consent to the appointment of a receiver, liquidator, assignee,
trustee,
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sequestrator (or other similar official) of the Trust or a substantial
part of its property, or cause or permit the Trust to make any
assignment for the benefit of its creditors, or admit in writing its
inability to pay its debts generally as they become due, or declare or
effect a moratorium on its debt or take any action in furtherance of any
such action.
ARTICLE III
THE CERTIFICATES
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Certificates, the Depositor shall be the sole beneficiary of the Trust.
Section 3.2. THE CERTIFICATES. Certificates shall be issued as
follows:
(a) On the Closing Date, Certificates (the "General Partner
Certificates") shall be issued for adequate consideration to the General
Partner with an aggregate initial principal balance of $200,000.00,
representing in excess of 1% of the Maximum Certificate Balance. At all
times following the Closing Date until a liquidation of the Trust, the
General Partner Certificates shall represent in excess of 1% of the
Maximum Certificate Balance. The General Partner shall retain
beneficial and record ownership of such Certificates. The General
Partner Certificates shall be non-transferable and any attempted
transfer of the General Partner Certificates shall be void; PROVIDED
that a General Partner Certificate may be transferred to a successor
General Partner as provided in Section 9.2. The Owner Trustee shall
cause each General Partner Certificate to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE, EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT."
(b) Upon Depositor's demand (with no less than five Business Days
prior notice), Investor Certificates with Certificate Balances totalling
up to the remaining Maximum Certificate Balance shall be issued to
Persons designated by the Depositor to the Owner Trustee, PROVIDED,
HOWEVER, that no Investor Certificates shall be issued unless and until
General Partner Certificates in excess of 1% of the Maximum Certificate
Balance shall have been issued.
The Certificates shall be executed on behalf of the Owner Trustee
by manual or facsimile signature of any authorized signatory of the Owner
Trustee having such authority under the Owner Trustee's seal imprinted or
otherwise affixed thereon and attested on behalf of the Owner Trustee by the
manual or facsimile signature of any authorized signatory of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed,
authorized to sign on
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behalf of the Owner Trustee shall be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of
them have ceased to be so authorized prior to the authentication and delivery
of such Certificates. The Investor Certificates shall be issued in initial
denominations and in such integral multiples as are necessary to comply with
the terms of this Agreement and of the Related Documents.
Section 3.3. AUTHENTICATION OF CERTIFICATES. Simultaneously with
the initial sale, assignment and transfer to the Trust of the Receivables and
the delivery to the Owner Trustee of the Receivable Files and the other Trust
Property pursuant to the Sale and Servicing Agreement, the Owner Trustee
shall cause the General Partner Certificates, and upon Depositor's order
(with no less than five Business Days prior notice) the Owner Trustee shall
cause Investor Certificates as described in Section 3.2(b), to be executed on
behalf of the Trust, authenticated and delivered to or upon the order of the
Depositor. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on
such Certificate a certificate of authentication substantially in the form
set forth in Exhibit B executed by the Owner Trustee or the Authentication
Agent, by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated
and delivered hereunder. Wilmington Trust Company is hereby initially
appointed Authentication Agent. All Certificates shall be dated the date of
their authentication.
Section 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.7,
a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Owner Trustee shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as provided in this Agreement. Wilmington Trust Company is
hereby initially appointed Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as
provided in this Agreement.
(b) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.7 (and subject
to the transfer restrictions contained in the Certificate Purchase
Agreement and in Section 9.2 with respect to General Partner
Certificates), the Owner Trustee shall execute, authenticate and deliver
(or shall cause the Authentication Agent to authenticate and deliver),
in the name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of like Certificate Balance,
dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be
exchanged for other Certificates in authorized denominations of a like
Certificate Balance upon surrender of the Certificates to be exchanged
at the office or agency maintained pursuant to Section 3.7.
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(c) Every Certificate presented or surrendered for registration of
transfer or exchange 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 or his attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Owner
Trustee in accordance with its customary practice.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
(e) Notwithstanding anything in this Agreement to the contrary,
the Investor Certificates shall be issued only in transactions which are
not required to be registered under the Securities Act of 1933, and the
Seller may prevent any transfer, participation or other disposition of
any interest in any Investor Certificate if the Seller, in its sole and
absolute discretion, determines that such transfer, participation or
other disposition, if effected, would cause the Trust to be treated as a
publicly traded partnership under Section 7704 of the Code or the
Treasury Regulations issued thereunder.
Section 3.5. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
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 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 to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee on
behalf of the Trust shall execute, authenticate and deliver (or the
Authentication Agent shall authenticate and deliver), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Certificate Balance. In connection with the issuance of
any new Certificate under this Section 3.5, the Owner Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Owner Trustee and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this
Section 3.5 shall constitute conclusive evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 3.6. PERSONS DEEMED OWNERS. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any agent of the Owner Trustee or the Certificate
Registrar may treat the person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving
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distributions pursuant to Section 5.2 and for all other purposes whatsoever,
and neither the Owner Trustee, the Certificate Registrar, nor any agent of
the Owner Trustee or the Certificate Registrar shall be affected by any
notice to the contrary.
Section 3.7. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall maintain in Wilmington, Delaware, an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Related Documents may be served. The
Owner Trustee initially designates Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 as its
principal corporate trust office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor and to the Certificateholders of
any change in the location of the Certificate Register or any such office of
agency.
Section 3.8. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be Wilmington Trust Company, and
any co-paying agent chosen by Wilmington Trust Company and acceptable to the
Owner Trustee. Wilmington Trust Company shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Owner Trustee. In the event
that Wilmington Trust Company shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to
execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders.
The Paying Agent shall return all unclaimed funds to the Owner Trustee, and
upon removal of a Paying Agent, such Paying Agent shall also return all funds
in its possession to the Owner Trustee. The provisions of Sections 7.1, 7.3,
7.4 and 8.2 shall apply to the Owner Trustee also in its role as Paying Agent
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. RESTRICTION ON POWER OF CERTIFICATEHOLDER. No
Certificateholder shall have any right to vote or in any manner otherwise
control the operation and management of the Trust except as expressly
provided in this Agreement.
Section 4.2. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. The Owner Trustee shall not take any of the following
actions unless, at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee
in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) 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 or unless such amendment would not materially
and adversely affect the interests of the Certificateholders;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required unless (i)
such amendment would not materially and adversely affect the interests
of the Certificateholders or (ii) such amendment is made in connection
with a Securitized Offering in accordance with the final sentence of
Section 11.1; or
(c) the amendment, change or modification of the Administration
Agreement, unless (i) such amendment would not materially and adversely
affect the interests of the Certificateholders or (ii) such amendment is
made in connection with a Securitized Offering in accordance with the
final sentence of Section 11.1.
Section 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust without the
unanimous prior approval of all Certificateholders and the delivery to the
Owner Trustee by each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent.
Section 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement or any
Related Document, unless such Certificateholder previously shall have given
to the Owner Trustee a written notice of default and of the continuance
thereof, as provided in this Agreement and unless Certificateholders
evidencing not less than 25% of the Certificate Balance represented by the
Certificates shall have made written request upon the
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Owner Trustee to institute such action, suit or proceeding in its own name as
Owner Trustee under this Agreement and shall have offered to the Owner
Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action,
suit, or proceeding, and during such 30-day period no request or waiver
inconsistent with such written request has been given to the Owner Trustee
pursuant to and in compliance with this Section or Section 6.3; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Owner Trustee,
that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb, or prejudice the rights of
the Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner provided in this Agreement and for
the equal, ratable, and common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 4.4, each and
every Certificateholder and the Owner Trustee shall be entitled to such
relief as can be given either at law or in equity.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. TRUST ACCOUNTS.
(a) The Owner Trustee, for the benefit of the Certificateholders,
shall establish and maintain the Certificate Distribution Account in the
name of the Trust for the benefit of the Certificateholders. The
Certificate Distribution Account shall be an Eligible Account and
initially shall be a segregated trust account established with the Owner
Trustee and maintained with the Owner Trustee.
(b) The Owner Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Account, the
Owner Trustee shall within 5 Business Days (or such longer period, not
to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Account
and shall transfer any cash and/or any investments to such new
Certificate Distribution Account.
(c) All amounts held in the Certificate Distribution Account
shall, to the extent permitted by applicable laws, rules and
regulations, be invested, by the Owner Trustee, in Eligible Investments
that mature not later than one Business Day prior to the Distribution
Date for the Monthly Period to which such amounts relate. Investments
in Eligible Investments shall be made in the name of the Trust, and such
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investments shall not be sold or disposed of prior to their maturity.
Any investment of funds in the Trust Accounts shall be made in Eligible
Investments held by a financial institution in accordance with the
following requirements: (a) all Eligible Investments shall be held in
an account with such financial institution in the name of the Trustee,
(b) with respect to securities held in such account, such securities
shall be (i) certificated securities (as such term is used in N.Y. UCC
Section 8-313(d)(i)), securities deemed to be certificated securities
under applicable regulations of the United States government, or
uncertificated securities issued by an issuer organized under the laws
of the State of New York or the State of Delaware, (ii) either (A) in
the possession of such institution, (B) in the possession of a clearing
corporation (as such term is used in Minn. Stat Section 336.8-313(g)) in
the State of New York, registered in the name of such clearing
corporation or its nominee, not endorsed for collection or surrender or
any other purpose not involving transfer, not containing any evidence of
a right or interest inconsistent with the Trustee's security interest
therein, and held by such clearing corporation in an account of such
institution, (C), held in an account of such institution with the
Federal Reserve Bank of New York or the Federal Reserve Bank of
Minneapolis, or (D) in the case of uncertificated securities, issued in
the name of such institution, and (iii) identified, by book entry or
otherwise, as held for the account of, or pledged to, the Trustee on the
records of such institution, and such institution shall have sent the
Trustee a confirmation thereof, (c) with respect to repurchase
obligations held in such account, such repurchase obligations shall be
identified by such institution, by book entry or otherwise, as held for
the account of, or pledged to, the Trustee on the records of such
institution, and the related securities shall be held in accordance with
the requirements of clause (b) above, and (d) with respect to other
Eligible Investments other than securities and repurchase agreements,
such Eligible Investments shall be held in a manner acceptable to the
Trustee. Subject to the other provisions hereof, the Trustee shall have
sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any,
shall be delivered directly to the Trustee or its agent, together with
each document of transfer, if any, necessary to transfer title to such
investment to the Trustee in a manner which complies with this Section
5.1. All interest, dividends, gains upon sale and other income from, or
earnings on investment of funds in the Certificate Distribution Account
shall be distributed on the next Distribution Date pursuant to Section
4.6 of the Sale and Servicing Agreement. The Servicer shall deposit in
the Certificate Distribution Account an amount equal to any net loss on
such investments immediately as realized.
Section 5.2. APPLICATION OF FUNDS IN CERTIFICATE DISTRIBUTION
ACCOUNT.
(a) On each Distribution Date the Owner Trustee will, based on the
information contained in the Servicer's Certificate delivered on the
related Determination Date pursuant to Section 3.9(a) of the Sale and
Servicing Agreement, distribute to the Certificateholders, on a pro rata
basis, to the extent of the funds
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available, amounts deposited in the Certificate Distribution Account
pursuant to Section 4.6 of the Sale and Servicing Agreement on such
Distribution Date in the following order of priority:
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, (x) an amount equal to the Certificateholders'
Percentage of any Principal Funding Excess Amount and (y) an amount
equal to the Certificateholders' Principal Distributable Amount; and
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement.
(b) On the date on which a Securitized Offering occurs, the Owner
Trustee will, based on the information contained in the Servicer's
Certificate delivered with respect to such Securitized Offering pursuant
to Section 3.9(a) of the Sale and Servicing Agreement, distribute to the
Investor Certificateholders, on a pro rata basis, to the extent of the
funds available, amounts deposited in the Certificate Distribution
Account pursuant to Section 4.6 of the Sale and Servicing Agreement on
such Distribution Date in the following order of priority taking into
account any concurrent distribution made pursuant to Section 5.2(a):
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, an amount equal to the Certificate Balance
(excluding any portion thereof attributable to the General Partner
Certificates); and
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement.
On such date, the Owner Trustee shall also, after making the
distributions referred to above, distribute to the General Partner such
funds and/or replacement certificates as shall be called for in the
agreements pursuant to which the Securitized Offering is completed.
(c) On the Distribution Date (i) following the date on which
amounts received in respect of the Seller's or the Servicer's exercise
of its option to purchase the corpus of the Trust pursuant to Sections
9.1(a) or (b) of the Sale and Servicing Agreement are deposited in the
Certificate Distribution Account, (ii) on which Insolvency
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Proceeds are deposited in the Certificate Distribution Account pursuant
to Section 9.1(c) of the Sale and Servicing Agreement (or on the
Distribution Date immediately following such deposit if such proceeds
are not deposited in the Certificate Distribution Account on a
Distribution Date), or (iii) following the date on which the Indenture
Trustee makes payments of money or property in respect of liquidation of
the Trust Property pursuant to Section 5.06 of the Indenture and
deposits funds received in connection with such liquidation in the
Certificate Distribution Account, in each case based upon information
contained in a Servicer's Certificate delivered pursuant to Section
3.9(b) of the Sale and Servicing Agreement, the Owner Trustee will
distribute to the Certificateholders, on a pro rata basis, such amounts
taking into account any concurrent distribution made pursuant to Section
5.2(a):
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, an amount equal to the Certificate Balance; and
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement.
(d) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement required pursuant to Section 4.9 of
the Sale and Servicing Agreement.
(e) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section. The Owner Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders 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 a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it
is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion
withhold such amounts in accordance with this paragraph (e). In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses
incurred.
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(f) Upon final liquidation of the Trust, by notice given to the
Owner Trustee by the Seller or the Servicer pursuant to Section 9.1 of
the Sale and Servicing Agreement, any funds remaining in the Certificate
Distribution Account after distribution of all amounts specified in this
Section 5.2 shall be distributed to the General Partner.
Section 5.3. METHOD OF PAYMENT. Subject to Section 9.1(c) and
9.3(b), distributions required to be made to Certificateholders on any
Distribution Date shall be made to each Certificateholder of record on the
preceding Record Date by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, which such Certificateholder shall have designated to
the Certificate Registrar, with appropriate written wire transfer
instructions, at least five Business Days prior to such Distribution Date.
Section 5.4. NO SEGREGATION OF MONIES; NO INTEREST. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or by the
Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.5. ACCOUNTING; REPORTS; TAX RETURNS.
(a) The Administrator has agreed pursuant to the Administration
Agreement that the Administrator shall (i) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the
accrual method of accounting, (ii) deliver to each 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 each Certificateholder to prepare its Federal and state income
tax returns, (iii) if the Investor Certificates are deemed for federal
income tax purposes to represent an equity interest in the Trust, to
file or cause to be filed such tax returns relating to the Trust
(including a partnership information return, Form 1065), and direct the
Owner Trustee to make such elections as may from time to time be
required or appropriate under any applicable state or Federal statute or
rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for Federal income tax purposes, (iv)
collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders and (v) file or cause to be filed
all documents required to be filed by the Trust with the Securities and
Exchange Commission and otherwise take or cause to be taken all such
actions as are notified by the Servicer to the Administrator as being
required for the Trust's compliance with all applicable provisions of
state and federal securities laws.
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(b) The Owner Trustee shall make all elections pursuant to this
Section 5.5 as directed in writing by the General Partner, with the
consent of JPMD. The Owner Trustee shall elect under Section 1278 of
the Code to include in income currently any market discount that accrues
with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
(c) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust, unless applicable law requires a Certificateholder
to sign such documents, in which case such documents shall be signed by
the General Partner. In signing any tax return of the Trust, the Owner
Trustee shall rely entirely upon, and shall have no liability for,
information or calculations provided by the General Partner.
(d) The General Partner shall be the "tax matters partner" of the
Trust pursuant to the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. GENERAL AUTHORITY. The Owner Trustee is authorized
and directed to execute and deliver the Related Documents to which the Trust
is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Related Documents to which the Trust is to
be a party and any amendment thereto (including any amendment entered into in
connection with a Securitized Offering in accordance with the final sentence
of Section 11.1 and any additional agreements called for by each such
amendment), and on behalf of the Trust, to direct the Indenture Trustee to
authenticate and deliver the Notes in the aggregate maximum principal amount
of $200,000,000. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Related Documents. The Owner Trustee is further
authorized, on behalf of the Trust, to enter into the Administration
Agreement, to appoint, with the consent of JPMD, a successor Administrator
and to take from time to time such action as JPMD recommends with respect to
the Related Documents so long as such actions are consistent with the terms
of the Related Documents.
Section 6.2. GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed with the consent of JPMD) all of its
responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the
Certificateholders, subject to the Related Documents and in accordance with
the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Related Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any Related Document, and
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the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration
Agreement.
Section 6.3. ACTION UPON INSTRUCTION.
(a) Subject to Article IV, the Certificate Majority shall have the
exclusive right to direct the actions of the Owner Trustee in the
management of the Trust, so long as such instructions are not inconsistent
with the express terms set forth herein or in any Related Document. The
Certificate Majority shall not instruct the Owner Trustee in a manner
inconsistent with this Agreement or the Related Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is contrary to the terms hereof or of any Related Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Related Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders 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 Certificate
Majority, the Owner Trustee shall not be liable on account of such action
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or
the Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such
action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Related Document or
any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders 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 a Certificate Majority,
the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or
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within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Related Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
Section 6.4. 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 Property, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Trust is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for
preparing, monitoring or filing any financing or continuation statements in any
public office at any time or otherwise to perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to record this
Agreement or any Related Document; however, the Owner Trustee will from time to
time execute and deliver such financing or continuation statements as are
prepared by the Servicer and delivered to the Owner Trustee for its execution on
behalf of the Trust for the purpose of perfecting or maintaining the perfection
of such a security interest or lien or effecting such a recording. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense (and not
at the expense of the Trust), promptly take all action as may be necessary to
discharge any liens on any part of the Trust Property that are attributable to
claims against the Owner Trustee in its individual capacity that are not related
to the ownership or the administration of the Trust Property.
Section 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of, the Trust Property except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Related
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
Section 6.6. RESTRICTIONS. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
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Section 6.7. ADMINISTRATION AGREEMENT.
(a) The Administrator is authorized to execute on behalf of the Trust
all documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Trust to prepare, file or deliver pursuant to
the Related Documents. Upon written request, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant to the
terms of the Administration Agreement, the Owner Trustee may, and is hereby
authorized and empowered to, subject to obtaining the prior written consent
of JPMD, 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, subject to obtaining the
prior written consent of JPMD, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Owner Trustee shall promptly notify each 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 has actual knowledge.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. ACCEPTANCE OF TRUSTEE AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Property upon the terms of the Related Documents
and this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Related Document under any circumstances, except (i) for
its own willful misconduct or gross negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3, (iii) for
liabilities arising from the failure of the Owner Trustee to perform obligations
expressly undertaken by it in the last sentence of Section 6.4 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
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Trustee in connection with any of the transactions contemplated by this
Agreement or any Related Document. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
instructions of the Certificate Majority;
(c) no provision of this Agreement or any Related Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Related Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or any of the
Related Documents, including the principal of and interest on the
Certificates or 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 Depositor or the General Partner or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Property or
for or in respect of the validity or sufficiency of the Related Documents,
other than the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to the Custodian, the Indenture Trustee, any Noteholder or to
any Certificateholder, other than as expressly provided for herein and in
the Related Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Custodian, the Indenture Trustee or
the Servicer under any of the Related Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Related Documents that are required
to be performed by the Administrator under the Administration Agreement,
the Custodian under the Custodian Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any
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litigation under this Agreement or otherwise or in relation to this
Agreement or any Related Document, at the request, order or direction of
the Certificate Majority, unless such Certificate Majority has offered
to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement or in any Related
Document shall not be construed as a duty, and the Owner Trustee shall
not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act.
Section 7.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Related Documents unless the Certificateholders have
previously received such items.
Section 7.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Depositor and the Certificateholders that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority and all franchises, grants,
authorizations, consents, orders and approvals from all governmental
authorities necessary to execute, deliver and perform its obligations under
this Agreement and each Related Document to which the Trust is a party.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and each Related Document to
which the Trust is a party, and this Agreement and each Related Document
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound or
result in the creation or imposition of any lien, charge or encumbrance on
the Trust Property resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the Related
Documents.
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Section 7.4. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president
or by the treasurer or other authorized officers of the relevant party, as
to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Related Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been
selected by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or
other such persons and not contrary to this Agreement or any Related
Document.
Section 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided
in this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Related Document shall
look only to the Trust Property for payment or satisfaction thereof.
Section 7.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES, NOTES OR
RECEIVABLES. The recitals contained herein and in the Certificates (other than
the signature and counter-signature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor (other than the signature or
countersignature of the Owner Trustee on the Notes), and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, of any
Related Document or of the Certificates (other than the signature and
counter-signature of the Owner Trustee on the Certificates) or the Notes (other
than the
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signature or counter-signature of the Owner Trustee on the Notes), or of any
Receivable or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of
the Trust Property or its ability to generate the payments to be distributed
to Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable or any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the
compliance by the Seller or the Servicer with any warranty or representation
made under any Related Document or in any related document or the accuracy of
any such warranty or representation or any action of the Indenture Trustee,
the Custodian or the Servicer taken in the name of the Owner Trustee.
Section 7.7. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositors, the Seller, the
Indenture Trustee and the Servicer in banking or other transactions with the
same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between OFL and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by OFL 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 of outside counsel engaged by the Owner Trustee in respect
of the performance of its obligations hereunder or (ii) relate to the
performance of its obligations pursuant to Section 5.5 hereof.
Section 8.2. INDEMNIFICATION. OFL shall be liable as primary obligor
for, and shall indemnify the Owner Trustee in its individual capacity and its
successors, assigns, agents and servants, and any co-trustee (including Xxxxxxx
X. Xxxx) (collectively, the
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"Indemnified Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and any and
all reasonable costs, expenses and disbursements (including reasonable legal
fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Related Documents, the Trust Property, the
administration of the Trust Property or the action or inaction of the Owner
Trustee hereunder, except only that OFL shall not be liable for or required
to indemnify the Owner Trustee from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 7.1. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement.
Section 8.3. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in
this Agreement or any Related Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that all
obligations of the Trust to the Owner Trustee individually or as Owner Trustee
for the Trust shall be recourse to the Trust Property only and specifically
shall not be recourse to the assets of any Certificateholder.
ARTICLE IX
TERMINATION; RECAPITALIZATION
Section 9.1. TERMINATION OF THE TRUST.
(a) The respective obligations and responsibilities of the Depositor,
the General Partner and the Owner Trustee created by this Agreement and the
Trust created by this Agreement shall terminate upon the latest of (i) the
maturity or other liquidation of the last Receivable (including the
purchase as of any Accounting Date by the Seller or the Servicer at its
option of the corpus of the Trust as described in Section 9.1(a) and, if so
specified by the Seller in writing, Section 9.1(b) of the Sale and
Servicing Agreement) and the subsequent distribution of amounts in respect
of such Receivables as provided in the Related Documents, (ii) the payment
to Certificateholders of all amounts required to be paid to them pursuant
to this Agreement (other than in connection with a Securitized Offering and
an optional purchase under Section 9.1(b) of the Sale and Servicing
Agreement where the Seller has not indicated that the Trust will
terminate), or (iii) at the time provided in Section 9.2. In any case,
there shall be delivered to the Owner Trustee, the Indenture Trustee and
the Rating Agencies an Opinion of Counsel that all applicable preference
periods under federal, state and local bankruptcy, insolvency and similar
laws have expired with respect to the payments pursuant to clause (ii);
PROVIDED, HOWEVER, that in no event shall the trust created by this
Agreement continue beyond the expiration of 21 years from the death of the
last survivor of the descendants living on the date of this Agreement of
Xxxx Xxxxxxx of the Commonwealth of Massachusetts; and PROVIDED,
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FURTHER, that the rights to indemnification under Section 8.2 shall survive
the termination of the Trust. The Servicer shall promptly notify the Owner
Trustee of any prospective termination pursuant to this Section 9.1.
Except as provided in Section 9.2, the bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of any Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such 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 Property nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Promptly upon receipt of notice of final distribution on the
Certificates from the Seller or the Servicer given pursuant to Section 9.1
of the Sale and Servicing Agreement, the Owner Trustee shall mail written
notice to the Certificateholders specifying (i) the Distribution Date upon
which final payment of the Certificates shall be made upon presentation and
surrender of Certificates at the office of the Paying Agent therein
specified, (ii) the amount of any such final payment, and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar at the
time such notice is given to Certificateholders. In the event such notice
is given, the Indenture Trustee shall make deposits into the Certificate
Distribution Account in accordance with Section 4.6 of the Sale and
Servicing Agreement, or, in the case of an optional purchase of Receivables
pursuant to Section 9.1 of the Sale and Servicing Agreement, shall deposit
the amount specified in Section 9.1 of the Sale and Servicing Agreement.
Upon presentation and surrender of the Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.2.
(d) In the event that all of the Certificateholders shall not
surrender their Certificates 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 remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the Certificates 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 remaining
Certificateholders concerning surrender of their Certificates, 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 Certificateholders
remaining in
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the Trust after exhaustion of such remedies shall be distributed by the
Owner Trustee to The United Way (but only upon termination of this
Agreement), and the Certificateholders, by acceptance of their
Certificates, hereby waive any rights with respect to such funds.
(e) Upon the winding up of the Trust and its termination, 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.
Section 9.2. DISSOLUTION EVENTS WITH RESPECT TO THE GENERAL PARTNER.
In the event that a Dissolution Event shall occur with respect to the General
Partner, the Trust will terminate unless, within 90 days after the occurrence of
the Dissolution Event with respect to the General Partner (x) a Certificate
Majority agrees in writing to continue the business of the Trust and to the
appointment of a Person to hold the General Partner Certificates and to assume
the liabilities incident thereto and (y) the Owner Trustee requests and obtains
an opinion of counsel to the effect that a failure to terminate the Trust upon
the occurrence of such Dissolution Event (and the transfer, if any, of the
General Partner Certificates held by the General Partner that has suffered such
Dissolution Event) will not cause the Trust to be treated as an association (or
publicly traded partnership) taxable as a corporation for federal income tax
purposes. Promptly after the occurrence of the events referred to in the
preceding sentence, (i) the General Partner shall give the Indenture Trustee and
the Owner Trustee written notice of the occurrence of such event, (ii) the Owner
Trustee shall, upon the receipt of such written notice, give prompt written
notice to the Certificateholders and the Indenture Trustee of the occurrence of
such event and (iii) the Indenture Trustee shall, upon receipt of written notice
of the occurrence of such event from the Owner Trustee or the Seller, give
prompt written notice to the Noteholders of the occurrence of such event;
PROVIDED, HOWEVER, that any failure to give a notice required by this sentence
shall not prevent or delay, in any manner, a termination of the Trust pursuant
to the first sentence of this Section 9.2. Upon a termination pursuant to this
Section, the Owner Trustee shall direct the Indenture Trustee to sell the assets
of the Trust (other than the Trust Accounts) at one or more private or public
sales conducted in any manner permitted by law. The proceeds of such a sale of
the assets of the Trust shall be distributed as provided in Section 9.1(b) of
the Sale and Servicing Agreement.
Section 9.3. SECURITIZED OFFERING.
(a) The Certificates shall be subject to redemption, upon not less
than ten days prior notice from the General Partner to the Owner Trustee,
in connection with a Securitized Offering, PROVIDED that funds sufficient
to repay the Certificate Balance of the Investor Certificates and all
accrued interest on the Certificates are deposited in the Certificate
Distribution Account on or prior to the date of such Securitized Offering
and distributed to the Certificateholders in accordance with
Section 5.2(b).
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(b) Promptly upon receipt of notice of a Securitized Offering from
the General Partner, the Owner Trustee shall notify the Certificateholders
specifying (i) the date upon which final payment of the Certificates shall
be made upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified, (ii) the amount of any such final
payment, and (iii) that the Record Date otherwise applicable to any
concurrent Distribution Date is not applicable, payments being made only
(unless such condition is waived by the General Partner) upon presentation
and surrender of the Certificates at the office of the Paying Agent therein
specified. Upon presentation and surrender of the Certificates (or without
presentation and surrender, if waived by the General Partner), the Paying
Agent shall cause to be distributed to Certificateholders amounts
distributable in connection with such Securitized Offering pursuant to
Section 5.2. Following any such distribution in connection with a
Securitized Offering, each Investor Certificateholder that has not
presented and surrendered its Certificate as described above shall do so
promptly, and the Investor Certificates shall be of no further force and
effect, whether or not so presented and surrendered.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; and (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or BBB by Standard & Poor's. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
Section 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the General Partner and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving such
notice of resignation, the General Partner shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 10.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment
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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 10.1 and shall fail to resign after
written request therefor by the General Partner 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 General Partner, with the consent of JPMD
may remove the Owner Trustee. If the General Partner shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the General
Partner shall promptly appoint a successor Owner Trustee meeting the
qualification requirements of Section 10.1 by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and payment of all fees owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Owner Trustee have been paid and until acceptance
of appointment by the successor Owner Trustee pursuant to Section 10.3. The
General Partner shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
Section 10.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
General Partner and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
General Partner and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
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Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the General Partner shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Indenture Trustee, the Noteholders
and the Rating Agencies. If the General Partner 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 General Partner.
Section 10.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the 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 Property, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.1.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any
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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 Property or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly 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 and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. AMENDMENT.
(a) This Agreement may be amended by the Depositor, the General
Partner and the Owner Trustee, but without the consent of any of the
Investor Certificateholders or Noteholders, (i) to cure any ambiguity, or
(ii) to correct, supplement or modify any provisions in this Agreement;
PROVIDED, HOWEVER, that such
-37-
action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Certificateholder or
Noteholder. In addition, this Agreement and any Related Document may be
amended by the Depositor, the General Partner and the Owner Trustee (or,
in the case of a Related Document, the parties thereto), but without the
consent of any of the Investor Certificateholders, in connection with any
Securitized Offering, so long as it is a condition precedent to the
effectiveness of such amendment that the Certificate Balance and all
interest accrued on the Certificates be paid in full and that any
commitment to purchase additional Certificates or Notes under the
Certificate Purchase Agreement or the Note Purchase Agreement,
respectively, has been terminated.
(b) This Agreement may also be amended from time to time by the
Depositor, the General Partner and the Owner Trustee with the consent of a
Certificate Majority and, if such amendment materially and adversely
affects the interests of Noteholders, the consent of a Note Majority (which
consent of any Holder of a Certificate or Note given pursuant to this
Section or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such
Investor Certificate or Note and of any Investor Certificate or Note issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether
or not notation of such consent is made upon the Investor Certificate or
Note) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement, or of modifying in
any manner the rights of the Holders of Certificates or Notes; PROVIDED,
HOWEVER, that, no such amendment shall (a) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that shall be required to be made
on any Certificate or Note or the Certificate Rate or the Note Interest
Rate or (b) reduce the aforesaid percentage required to consent to any such
amendment or any waiver hereunder, without the consent of the Holders of
all Certificates and Notes then outstanding.
(c) Prior to the execution of any such amendment or consent (other
than an amendment described in the final sentence of Section 11.1(a)), the
General Partner shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent
(other than an amendment described in the final sentence of Section
11.1(a)), the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder and the
Indenture Trustee unless such parties have previously received such
notification.
(e) It shall not be necessary for the consent of Certificateholders
or Noteholders pursuant to Section 11.1(b) to approve the particular form
of any
-38-
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 Certificateholders and Noteholders
provided for in this Agreement) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe, including the
establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement (other
than an amendment described in the final sentence of Section 11.1(a)), the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
Section 11.2. NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the General Partner, the Servicer, the Owner Trustee,
the Indenture Trustee or any Affiliate of any of the foregoing 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 Certificates or the Related
Documents.
Section 11.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
Section 11.4. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.5. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not, except as expressly provided for herein with
respect to the General Partner, be personally liable for obligations of the
Trust, the fractional undivided interests in the Trust represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever, and Certificates upon execution thereof by the Owner
Trustee pursuant to Section 3.3 are and shall be deemed fully paid.
-39-
Section 11.6. THIRD-PARTY BENEFICIARIES. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Section 11.7. COUNTERPARTS. For the purpose of facilitating its
execution and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
Section 11.8. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the General Partner or the Depositor, at the
following address: 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, with copies to: Olympic Financial Ltd., 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: President, (b) in the
case of the Owner Trustee, at the Corporate Trust Office and (c) in the case of
JPMD, at the following address: 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Asset Finance Group, or at such other address as shall be designated
by any such party in a written notice to the other parties. Notwithstanding the
foregoing, any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register, and any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
-40-
IN WITNESS WHEREOF, the Depositor, the General Partner and the Owner
Trustee have caused this Trust Agreement to be duly executed by their respective
officers as of the day and year first above written.
OLYMPIC RECEIVABLES FINANCE CORP. II
By /s/ Xxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY
By____________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the Depositor, the General Partner and the Owner
Trustee have caused this Trust Agreement to be duly executed by their respective
officers as of the day and year first above written.
OLYMPIC RECEIVABLES FINANCE CORP. II
By____________________________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
CERTIFICATE OF TRUST OF
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
THIS Certificate of Trust of OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE
TRUST (the "Trust"), dated as of December 28, 1995, is being duly executed and
filed by Wilmington Trust Company, a Delaware corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE, Section 3801
ET SEQ.).
1. NAME. The name of the business trust formed hereby is OLYMPIC
AUTOMOBILE RECEIVABLES WAREHOUSE TRUST.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration.
3. This Certificate of Trust will be effective December 28, 1995.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company, not in its individual
capacity but solely as owner trustee under a Trust
Agreement dated as of December 28, 1995.
By____________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT B
[FORM OF CERTIFICATE]
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
VARIABLE FUNDING CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS PROVIDED BY
THE SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS UNDER STATE BLUE SKY OR
SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
TRUST AGREEMENT REFERRED TO HEREIN.
THE CERTIFICATES MAY NOT BE ACQUIRED BY (A) AN EMPLOYEE BENEFIT PLAN
(AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO THE PROVISIONS OF TITLE
1 OF ERISA, (B) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE CODE OR (C) ANY
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY (EACH, A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING
THIS CERTIFICATE, THE HOLDER HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN.
OLYMPIC RECEIVABLES FINANCE CORP. II MAY PREVENT ANY TRANSFER,
PARTICIPATION OR OTHER DISPOSITION OF ANY INTEREST IN THIS CERTIFICATE IF
OLYMPIC RECEIVABLES FINANCE CORP. II, IN ITS SOLE AND ABSOLUTE DISCRETION,
DETERMINES THAT SUCH TRANSFER, PARTICIPATION OR OTHER DISPOSITION, IF EFFECTED,
WOULD CAUSE THE TRUST TO BE TREATED AS A PUBLICLY TRADED PARTNERSHIP UNDER
SECTION 7704 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR THE TREASURY
REGULATIONS ISSUED THEREUNDER.
This Certificate evidences a fractional undivided interest in the
Trust, as defined below, the property of which includes certain retail
installment sale contracts and promissory notes secured by new and used
automobiles and light trucks and sold to the Trust by Olympic Receivables
Finance Corp. II
(This Certificate does not represent an obligation of, or an interest
in, Olympic Receivables Finance Corp. II, Olympic Financial Ltd. or any
affiliate of either of them.)
Certificate No. Certificate Balance: $
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity but not in its individual capacity but
solely as Owner Trustee or solely as Owner Trustee
By Wilmington Trust Company,
Authenticating Agent
by_________________________________ by________________________________
-2-
THIS CERTIFIES THAT______________________________is the registered
owner of a nonassessable, fully-paid, fractional undivided interest in the
Olympic Automobile Receivables Warehouse Trust (the "Trust"). The Trust was
created pursuant to a Trust Agreement, dated as of December 28, 1995 (the
"Trust Agreement"), between Olympic Receivables Finance Corp. II and Wilmington
Trust Company, not in its individual capacity but solely as owner trustee (the
"Owner Trustee"). To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement or
the Sale and Servicing Agreement, dated as of December 28, 1995 (the "Sale and
Servicing Agreement"), among the Trust, Olympic Receivables Finance Corp. II
(the "Seller"), Olympic Financial Ltd., in its individual capacity and as
servicer ("OFL" or the "Servicer"), and Norwest Bank Minnesota, National
Association, as backup servicer, as applicable.
This Certificate is one of the duly authorized Certificates designated
as "Variable Funding Certificates" (herein called the "Certificates"). The
Trust has also issued under the Indenture, dated as of December 28, 1995, among
the Trust and Norwest Bank Minnesota, National Association, as trustee and
indenture collateral agent, Notes designated as Variable Funding Notes (the
"Notes"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which such holder is bound.
[ADD GRID AND REFERENCE TO SAME.]
The Seller has structured the Agreement, the Certificates and the
Trust with the intention that the Certificates will qualify under applicable tax
law as indebtedness of the Seller, and both the Seller and each holder of a
Certificate or any interest therein by acceptance of its certificate or any
interest therein, agrees to treat the Certificates as indebtedness for purposes
of federal, state and local income or franchise taxes and any other tax imposed
on or measured by income.
The recitals contained herein shall be taken as the statements of the
Depositor, the General Partner or the Servicer, as the case may be, 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
Certificate or of any Receivable or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or the Sale and Servicing Agreement or be valid for
any purpose.
B-3
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not
in its individual capacity has caused this Certificate to be duly executed.
Dated:______, 199_ OLYMPIC AUTOMOBILE RECEIVABLES
WAREHOUSE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:_________________________________________
Name:
Title:
Attest:
_______________
Name:
Title:
B-4
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 typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
* ______________________________________________
Signature Guaranteed:
* ______________________________________________
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatsoever. Such signature must be
guaranteed by a member firm of The New York Stock Exchange, Inc. or a commercial
bank or trust company.
B-5
