--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TRUST AGREEMENT
by and between
NEWCOURT RECEIVABLES CORPORATION II
as Trust Depositor,
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of November 1, 1997
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE ONE Page
----
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. CAPITALIZED TERMS . . . . . . . . . . . . . . . . . . . .1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS . . . . . . . . . . . . . .3
SECTION 1.03. USAGE OF TERMS. . . . . . . . . . . . . . . . . . . . . .3
SECTION 1.04. SECTION REFERENCES. . . . . . . . . . . . . . . . . . . .3
SECTION 1.05. ACCOUNTING TERMS. . . . . . . . . . . . . . . . . . . . .3
ARTICLE TWOORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .3
SECTION 2.01. NAME. . . . . . . . . . . . . . . . . . . . . . . . . . .3
SECTION 2.02. OFFICE. . . . . . . . . . . . . . . . . . . . . . . . . .3
SECTION 2.03. PURPOSES AND POWERS . . . . . . . . . . . . . . . . . . .3
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. . . . . . . . . . . . . . .4
SECTION 2.05. CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. . . . . . . .4
SECTION 2.06. DECLARATION OF TRUST. . . . . . . . . . . . . . . . . . .4
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR. . . . . . . . . . . . . . .5
SECTION 2.08. TITLE TO TRUST PROPERTY . . . . . . . . . . . . . . . . .5
SECTION 2.09. SITUS OF TRUST. . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR . .5
SECTION 2.11. FEDERAL INCOME TAX TREATMENT. . . . . . . . . . . . . . .6
ARTICLE THREETRUST CERTIFICATE AND TRANSFER OF INTEREST. . . . . . . . . . . .6
SECTION 3.01. OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . .6
SECTION 3.02. THE TRUST CERTIFICATE . . . . . . . . . . . . . . . . . .7
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATE. . . . .7
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES .8
SECTION 3.06. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . .8
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDER'S NAME AND ADDRESSES.8
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . .8
SECTION 3.09. APPOINTMENT OF PAYING AGENT . . . . . . . . . . . . . . .8
SECTION 3.10. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATE . . . .9
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ACTIONS BY OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 4.01. Prior Notice to Certificateholder with Respect to
Certain Matters . . . . . . . . . . . . . . . . . . . . .9
SECTION 4.02. ACTION BY OWNER WITH RESPECT TO CERTAIN MATTERS . . . . .9
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. . . . . . . 10
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER . . . . . . . . . . . . . 10
ARTICLE FIVEAPPLICATION OF TRUST FUNDS;CERTAIN DUTIES. . . . . . . . . . . . 10
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. . . . . . . . . . . . . 10
SECTION 5.02. APPLICATION OF TRUST FUNDS. . . . . . . . . . . . . . . 10
SECTION 5.03. METHOD OF PAYMENT . . . . . . . . . . . . . . . . . . . 11
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST . . . . . . . . . 11
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDER, THE
INTERNAL REVENUE SERVICE AND OTHERS . . . . . . . . . . 11
-i-
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER . . . . . . . 11
ARTICLE SIXAUTHORITY AND DUTIES OF OWNER TRUSTEE . . . . . . . . . . . . . . 11
SECTION 6.01. GENERAL AUTHORITY . . . . . . . . . . . . . . . . . . . 11
SECTION 6.02. GENERAL DUTIES. . . . . . . . . . . . . . . . . . . . . 11
SECTION 6.03. ACTION UPON INSTRUCTION . . . . . . . . . . . . . . . . 12
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.06. RESTRICTIONS. . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE SEVENCONCERNING THE OWNER TRUSTEE. . . . . . . . . . . . . . . . . . 13
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES . . . . . . . . . . . . 13
SECTION 7.02. FURNISHING OF DOCUMENTS . . . . . . . . . . . . . . . . 14
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . 14
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL . . . . . . . . . . . . . . 15
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY . . . . . . . . . . . 15
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE, NOTES
OR CONTRACTS. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATE AND NOTES . . . 15
ARTICLE EIGHTCOMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . 16
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES . . . . . . . . . . . 16
SECTION 8.02. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE . . . . . . . . . . . . . 16
ARTICLE NINETERMINATION OF TRUST AGREEMENT . . . . . . . . . . . . . . . . . 16
SECTION 9.01. TERMINATION OF TRUST AGREEMENT. . . . . . . . . . . . . 16
SECTION 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR
WITHDRAWAL OR REMOVAL OF TRUST DEPOSITOR. . . . . . . . 17
ARTICLE TENSUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES. . . . . . 17
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. . . . . . . 17
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE . . . . . . . . 17
SECTION 10.03. SUCCESSOR OWNER TRUSTEE . . . . . . . . . . . . . . . . 18
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. . . . . . . . 18
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE . . . . . 18
ARTICLE ELEVENMISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. . . . . . . . . . . . . . . 19
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNER . . . . . . . . 20
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS . . . . . . . . . . . . 20
SECTION 11.04. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 11.05. SEVERABILITY OF PROVISIONS. . . . . . . . . . . . . . . 21
SECTION 11.06. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.07. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . 22
SECTION 11.09. NO PETITION . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.10. NO RECOURSE . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.11. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.13. TRUST CERTIFICATE TRANSFER RESTRICTIONS . . . . . . . . 22
SECTION 11.14. TRUST DEPOSITOR PAYMENT OBLIGATION. . . . . . . . . . . 23
-ii-
EXHIBITS
Exhibit A - Form of Certificate of Trust. . . . . . . . . . . . . .A-1
Exhibit B - Form of Trust Certificate . . . . . . . . . . . . . . .B-1
-iii-
This TRUST AGREEMENT dated as of November 1, 1997, is between NEWCOURT
RECEIVABLES CORPORATION II, a Delaware corporation, as Trust Depositor (the
"TRUST DEPOSITOR"), and CHASE MANHATTAN BANK DELAWARE, a Delaware banking
corporation, as owner trustee (the "OWNER TRUSTEE").
WHEREAS, in connection herewith, the Trust Depositor is willing to assume
certain obligations pursuant hereto; and
WHEREAS, in connection herewith, the Trust Depositor is willing to purchase
the Trust Certificate (as defined herein) to be issued pursuant to this
Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree that the Trust Agreement
shall be amended and restated as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CAPITALIZED TERMS. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"ADMINISTRATION AGREEMENT" means the Administration Agreement, dated as of
the date hereof, among the Trust, the Trust Depositor, the Indenture Trustee and
Newcourt USA, as administrator.
"AGREEMENT" means this Trust Agreement, as the same may be amended and
supplemented from time to time.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware Code,
12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to time.
"CERTIFICATE BALANCE" means $8,025,000.
"CERTIFICATE DISTRIBUTION ACCOUNT" means the account established and
maintained as such pursuant to Section 5.01.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of EXHIBIT A hereto.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the register (or any successor thereto) appointed pursuant to
Section 3.04.
"CERTIFICATEHOLDER" or "HOLDER" means with respect to a Trust Certificate
the Person in whose name the Trust Certificate is registered in the Certificate
Register.
"CLOSING DATE" means November 26, 1997.
"CODE" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" shall have the meaning assigned to such term in Section 8.02.
"FOREIGN PERSON" means any Person other than (i) a citizen or resident of
the United States, (ii) a corporation, partnership or other entity organized in
or under the laws of the United States or any political subdivision thereof,
(iii) an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or (iv) a trust whose administration is subject to the
primary supervision of a court within the United States and which has one or
more U.S. fiduciaries who have authority to control all substantial decisions of
the Trust.
"INDEMNIFIED PARTIES" shall have the meaning assigned to such term in
Section 8.02.
"INDENTURE" means the Indenture dated as of the date hereof between the
Trust and Manufacturers and Traders Trust Company, as Indenture Trustee.
"NEWCOURT USA" means Newcourt Financial USA Inc., a Delaware corporation.
"NOTE DEPOSITORY AGREEMENT" means the Agreement dated as of the Closing
Date among the Trust, the Indenture Trustee, the Administrator and DTC, as the
Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"NOTES" means the Class A-1 Notes, the Class A-2 Notes, the Class B Notes,
the Class C Notes and the Class D Notes, in each case issued pursuant to the
Indenture.
"OWNER" means the Holder of the Trust Certificate.
"OWNER TRUSTEE" means Chase Manhattan Bank Delaware, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such
other office at such other address as the Owner Trustee may designate from time
to time by notice to the Certificateholder, the Servicer, the Indenture Trustee,
the Trust Depositor and Newcourt USA.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 3.10.
"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, limited liability company, joint stock company, trust
(including any beneficiary thereof) unincorporated organization or government or
any agency or political subdivision thereof.
"RECORD DATE" means, with respect to any Distribution Date, the last
Business Day of the preceding calendar month.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Trust, the Trust Depositor, Newcourt USA,
as Servicer thereunder, and the Indenture Trustee named therein, as the same may
be amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
"TREASURY REGULATIONS" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
-2-
"TRUST" means the trust established by this Agreement.
"TRUST CERTIFICATE" means the trust certificate evidencing the beneficial
equity interest of the Owner in the Trust, substantially in the form of EXHIBIT
B hereto.
"TRUST DEPOSITOR" means Newcourt Receivables Corporation II in its capacity
as Trust Depositor hereunder, and its successors.
"TRUST ESTATE" means all right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of the Trust from time to time, including any rights of the Owner Trustee and
the Trust pursuant to the Sale and Servicing Agreement and the Administration
Agreement.
"UNDERWRITERS" means First Union Capital Markets Corp. Deutsche Xxxxxx
Xxxxxxxx, Xxxxxx Brothers Inc. and Banc America Xxxxxxxxx Xxxxxxxx.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. Capitalized terms used that
are not otherwise defined herein shall have the meanings ascribed thereto in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
SECTION 1.03. USAGE OF TERMS. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "WRITING" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "INCLUDING" means "INCLUDING WITHOUT LIMITATION".
SECTION 1.04. SECTION REFERENCES. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE TWO
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as "NEWCOURT
RECEIVABLES ASSET TRUST 1997-1", in which name the Owner Trustee may conduct the
activities of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Owner and the Trust Depositor.
SECTION 2.03. PURPOSES AND POWERS.
(a) The sole purpose of the Trust is to manage the Trust Estate and
collect and disburse the periodic income therefrom for the use and benefit of
the Owner, and in furtherance of such purpose to engage in the following
ministerial activities:
-3-
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificate pursuant to this Agreement and to sell the
Notes and the Trust Certificate;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificate, to purchase the Contracts and other Trust
Assets, and to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance
to the Trust Depositor pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Owner pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate
released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or
connected therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in
connection with conservation of the Trust Estate and the
making of distributions to the Owner and the Noteholders.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee to engage in any business operations or any activities other than those
set forth in this Section 2.03. Specifically, the Owner Trustee shall have no
authority to engage in any business operations, or acquire any assets other than
those specifically included in the Trust Estate under Section 1.01, or otherwise
vary the assets held by the Trust. Similarly, the Owner Trustee shall have no
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of this Trust as set forth in this
Section 2.03.
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Trust Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
SECTION 2.05. CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The Trust
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Trust Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Trust Estate
(prior to giving effect to the conveyances described in the Sale and Servicing
Agreement) and shall be deposited in the Certificate Distribution Account. The
Trust Depositor shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Estate and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Owner, subject to the obligations of the Trust under the Transaction
Documents. It is the intention of the parties hereto that the Trust constitute
a business
-4-
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that the Trust be disregarded as a separate entity for federal income tax
purposes pursuant to Treasury Regulation Section 301.7701-3(b)(1)(ii) as in
effect for periods after January 1, 1997. The parties agree not to take any
action inconsistent with such intended federal income tax treatment. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute for the sole purpose
and to the extent necessary to accomplish the purposes of this Trust as set
forth in Section 2.03.
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the
Trust Depositor shall be liable directly to and will indemnify any injured party
or any other creditor of the Trust for all losses, claims, damages, liabilities
and expenses of the Trust to the extent that the Trust Depositor would be liable
if the Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which Trust Depositor were a general partner (including any
Illinois personal property replacement tax that is imposed on the Trust as a
partnership); PROVIDED, HOWEVER, that the Trust Depositor shall not be liable
for any losses incurred by the Certificateholder in the capacity of an investor
in the Trust Certificate or a Noteholder in the capacity of an investor in the
Notes. In addition, any third party creditors of the Trust (other than in
connection with the obligations described in the immediately preceding sentence
for which the Trust Depositor shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the Trust Depositor under
this paragraph shall be evidenced by the Trust Certificate.
(b) Other than to the extent set forth in Section 2.07(a), the Owner,
solely by virtue of its being the Holder of the Trust Certificate, shall not
have any personal liability for any liability or obligation of the Trust.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in an owner trustee or owner trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09. SITUS OF TRUST. The Trust will be located and administered
in the State of Delaware or the State of New York. All bank accounts maintained
by the Owner Trustee on behalf of the Trust shall be located in the State of New
York or the State of Delaware. The Trust shall not have any employees in any
state other than Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict
or prohibit the Owner Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New
York and payments will be made by the Trust only from Delaware or New York. The
only office of the Trust will be at the Owner Trustee Corporate Trust Office.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Trust Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the
laws of the State of Delaware, with power and authority to own its
properties and to conduct its business and had at all relevant
times, and has, power, authority and legal right to acquire and own
the Contracts.
(ii) The Trust Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualifications.
(iii) The Trust Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Trust
Depositor has full power and authority to sell and assign the
-5-
property to be sold and assigned to and deposited with the Owner
Trustee on behalf of the Trust as part of the Trust Estate and has
duly authorized such sale and assignment and deposit with the Owner
Trustee on behalf of the Trust by all necessary corporate action;
and the execution, delivery and performance of this Agreement have
been duly authorized by the Trust Depositor by all necessary
corporate action.
(iv) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of the Trust
Depositor, or any indenture, agreement or other instrument to which
the Trust Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of the
properties of the Trust Depositor pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to
the Transaction Documents); nor violate any law or any order, rule
or regulation applicable to the Trust Depositor of any court or of
any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Trust Depositor or its properties.
(v) All approvals, authorizations, consents, orders or other actions of
any person or any governmental entity required in connection with
the execution and delivery of this Agreement and the fulfillment of
the terms hereof have been obtained.
(vi) There are no proceedings or investigations pending, or to the Trust
Depositor's best knowledge threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Trust Depositor or its properties: (A)
asserting the invalidity of this Agreement, any of the other
Transaction Documents or the Trust Certificate, (B) seeking to
prevent the issuance of the Trust Certificate or the consummation
of any of the transactions contemplated by this Agreement or any of
the other Transaction Documents, (C) seeking any determination or
ruling that might materially and adversely affect the performance
by the Trust Depositor of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Transaction
Documents or the Trust Certificate or (D) involving the Trust
Depositor and which might adversely affect the federal income tax
or other federal, state or local tax attributes of the Trust
Certificate.
SECTION 2.11. FEDERAL INCOME TAX TREATMENT.
(a) It is the intention of the Trust Depositor that the Trust be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) as in effect for periods after
January 1, 1997. The Trust Certificate constitutes the sole equity interest in
the Trust and must at all times be held by either the Trust Depositor or its
transferee as sole owner. The Trust Depositor agrees not to take any action
inconsistent with such intended federal income tax treatment. Because for
federal income tax purposes the Trust will be disregarded as a separate entity,
Trust items of income, gain, loss and deduction for any month as determined for
federal income tax purposes shall be allocated entirely to the Trust Depositor
(or subsequent purchaser of the Trust Certificate) as the sole
Certificateholder.
-6-
ARTICLE THREE
TRUST CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01. OWNERSHIP.
(a) Upon the formation of the Trust by the contribution by the Trust
Depositor pursuant to Section 2.05 and until the issuance of the Trust
Certificate, the Trust Depositor shall be the sole beneficiary of the Trust.
The Trust Certificate must at all times be held by either the Trust Depositor or
its transferee as sole owner.
(b) No transfer of the Trust Certificate shall be made unless such
transfer is made in a transaction which does not require registration or
qualification under the Securities Act of 1933 or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the Certificate
Registrar shall effect the registration of any transfer of the Trust Certificate
unless, prior to such transfer the Owner Trustee shall have received (i) a Tax
Opinion, and (ii) a certificate from the proposed transferee certifying that
following such transfer, there would be no more than one holder of the Trust
Certificate and the holder of the Trust Certificate would not be a Foreign
Person, a partnership, Subchapter S corporation or grantor trust.
SECTION 3.02. THE TRUST CERTIFICATE. The Trust Certificate shall be
substantially in the form of EXHIBIT B hereto. The Trust Certificate shall be
issued with an original Certificate balance equal to the Certificate Balance.
The Trust Certificate shall be executed by the Owner Trustee on behalf of the
Trust by manual or facsimile signature of an authorized officer of the Owner
Trustee and, upon authentication pursuant to Section 3.03, shall be deemed to
have been validly issued when so executed and authenticated. The Trust
Certificate bearing the manual or facsimile signature of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Trust Certificate or
did not hold such offices at the date of the authentication and delivery of such
Trust Certificate. The Trust Certificate shall be dated the date of its
authentication.
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATE. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Trust Depositor, in exchange for the Contracts and the other Trust Assets,
simultaneously with the sale, assignment and transfer to the Trust of the
Contracts and other Trust Assets, and the constructive delivery to the Owner
Trustee of the Contract Files and the other Trust Assets, a Trust Certificate
duly authenticated by the Owner Trustee, in the amount of the Certificate
Balance evidencing the entire ownership of the Trust, and Notes issued by the
Owner Trustee and authenticated by the Indenture Trustee in aggregate principal
amount of, in the case of (i) Class A-1 Notes, $127,067,000, (ii) Class A-2
Notes, $88,278,000, (iii) Class-A-3 Notes $107,004,000, (iv) Class A-4 Notes
$167,194,000, (v) Class B Notes, $18,726,000, (vi) Class C Notes, $10,700,000
and (vii) Class D Notes, $16,051,000. No Trust Certificate shall be entitled
to any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Trust Certificate a certificate of authentication substantially
in the form set forth in the form of Trust Certificate attached hereto as
EXHIBIT B, executed by the Owner Trustee or its authenticating agent, by manual
signature, and such certificate upon any Trust Certificate shall be conclusive
evidence, and the only evidence, that such Trust Certificate has been duly
authenticated and delivered hereunder. Upon authentication and delivery
pursuant to the terms hereof, the Trust Certificate will be entitled to the
benefits of this Agreement.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATE.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, it shall provide for the registration of Trust Certificate and
transfers and exchanges of the Trust Certificate as provided herein. The Chase
Manhattan Bank is hereby initially appointed Certificate Registrar for the
purpose of registering the Trust Certificate and transfers and exchanges of the
Trust
-7-
Certificate as herein provided. In the event that, subsequent to the Closing
Date, the Owner Trustee notifies the Servicer that the Chase Manhattan Bank
is unable to act as Certificate Registrar, the Servicer shall appoint another
bank or trust company, having an office or agency located in the City of
Indianapolis, Indiana, agreeing to act in accordance with the provisions of
this Agreement applicable to it, and otherwise acceptable to the Owner
Trustee, to act as successor Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of any Trust
Certificate, the Owner Trustee shall execute, authenticate and deliver (or shall
cause its authenticating agent to authenticate and deliver), in the name of the
designated transferee, one new Trust Certificate having the same aggregate
principal amount.
(c) Every Trust Certificate presented or surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of the Trust Certificate, but the Owner Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer of the Trust Certificate.
(e) All Trust Certificates surrendered for registration of transfer
shall be canceled and subsequently destroyed by the Owner Trustee.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.
If (i) any mutilated Trust Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Trust Certificate, and (ii) there is
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice that such Trust Certificate has been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall execute and the Owner
Trustee or its authenticating agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and fractional undivided
interest. In connection with the issuance of any new Trust Certificate under
this Section, the Owner Trustee may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name the Trust Certificate is registered as the owner of such Trust
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar, any Paying Agent or any of their respective agents shall
be affected by any notice of the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDER'S NAME AND ADDRESSES.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Trust Depositor, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer or the Trust Depositor, the name and
address of the Certificateholder as of the most recent Record Date in such form
as the Servicer or the Trust Depositor may reasonably require. Every
Certificateholder, by receiving and holding a Trust Certificate, agrees with the
Servicer, the Trust Depositor and the Owner Trustee that none of the Servicer,
the Trust Depositor or the Owner Trustee shall be held accountable by reason of
the disclosure of any such information as to the name and address of the
Certificateholder hereunder, regardless of the source from which such
information was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in the City of New York, New York, an office or offices or agency or
agencies where the Trust Certificate may be surrendered for
-8-
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificate and the Transaction
Documents may be served. The Owner Trustee initially designates the the Chase
Manhattan Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its office for such
purposes. The Owner Trustee shall give prompt written notice to the Trust
Depositor, the Servicer and to the Certificateholder of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to the Certificateholder from the Certificate Distribution Account
pursuant to Section 5.02(a) and shall report the amounts of such distributions
to the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent initially shall
be The Chase Manhattan Bank, and any co-paying agent chosen by the Paying Agent
that is acceptable to the Owner Trustee. Each Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Owner Trustee. In
the event that The Chase Manhattan Bank shall no longer be the Paying Agent, the
Owner Trustee shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that, as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholder in trust for
the benefit of the Certificateholder entitled thereto until such sums shall be
paid to such Certificateholder. The Paying Agent shall return all unclaimed
funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.10. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATE. Trust
Depositor shall on the Closing Date purchase from the Trust a Trust Certificate
representing the Certificate Balance.
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO CERTIFICATEHOLDER WITH RESPECT TO CERTAIN
MATTERS. Subject to the provisions and limitation of Section 4.04, with respect
to the following matters, the Owner Trustee shall not take action unless at
least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholder in writing of the proposed action, the Indenture
Trustee shall have consented to such action in the event any Notes are
outstanding and the Certificateholder shall not have notified the Owner Trustee
in writing prior to the 30th day after such notice is given that such
Certificateholder has withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of the Contracts);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
-9-
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required
and such amendment materially and adversely affects the interest of
the Owner;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner or add any provision that would not
materially and adversely affect the interests of the Owner; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to
the assignment by the Note Registrar, Paying Agent, Indenture
Trustee or Certificate Registrar of its obligations under the
Indenture or the Agreement, as applicable.
SECTION 4.02. ACTION BY OWNER WITH RESPECT TO CERTAIN MATTERS. Subject
to the provisions and limitations of Section 4.04, the Owner Trustee shall not
have the power, except upon the direction of the Owner, to (a) remove the
Administrator pursuant to Section 8 of the Administration Agreement, (b) appoint
a successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Servicer pursuant to Section 8.01 of the Sale and Servicing
Agreement, (d) except as expressly provided in the Transaction Documents, sell
the Contracts or other Trust Assets after the termination of the Indenture, (e)
initiate any claim, suit or proceeding by the Trust or compromise any claim,
suit or proceeding brought by or against the Trust, (f) authorize the merger or
consolidation of the Trust with or into any other business trust or entity
(other than in accordance with Section 3.10 of the Indenture) or (g) amend the
Certificate of Trust. The Owner Trustee shall take the actions referred to in
the preceding sentence only upon written instructions assigned by the Owner.
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER. Neither the Administrator
nor the Owner shall direct the Owner Trustee to take or to refrain from taking
any action if such action or inaction would be contrary to any obligation of the
Trust or the Owner Trustee under this Agreement or any of the Transaction
Documents or would be contrary to the purpose of this Trust as set forth in
Section 2.03, nor shall the Owner Trustee be obligated to follow any such
direction, if given.
ARTICLE FIVE
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee, for the
benefit of the Certificateholder, shall maintain in the name of the Trust a
segregated corporate trust account with a Qualified Institution, (the
"CERTIFICATE DISTRIBUTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholder.
-10-
The Owner Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholder. If, at any time,
the institution with the Certificate Distribution Account is established ceases
to be a Qualified Institution, the Owner Trustee (or the Trust Depositor on
behalf of the Owner Trustee, if the Certificate Distribution Account is not then
held by the Owner Trustee or an Affiliate thereof) shall within ten Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Certificate Distribution Account with
a Qualified Institution and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee will deposit in the
Certificate Distribution Account and distribute to the Certificateholder amounts
received pursuant to Section 7.05 of the Sale and Servicing Agreement with
respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to the
Certificateholder the statement or statements provided to the Owner Trustee by
the Servicer pursuant to Section 9.01 of the Sale and Servicing Agreement with
respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocation of income) to the Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the Owner sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to the Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is withheld by the Trust
and remitted to the appropriate taxing authority. If there is a possibility
that withholding tax is payable with respect to a distribution, the Owner
Trustee may in its sole discretion withhold such amounts in accordance with the
paragraph (c).
SECTION 5.03. METHOD OF PAYMENT. Subject to Section 9.01(c) respecting
the final payment upon retirement of the Trust Certificate, distributions
required to be made to the Certificateholder of record on the related Record
Date shall be made by check mailed to such Certificateholder at the address of
such Holder appearing in the Certificate Register or as otherwise requested in
writing by such Holder.
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to Sections
5.01 and 5.02, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDER, THE
INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis and the
accrual method of accounting, (b) deliver to the Owner, as may be required by
the Code and applicable Treasury Regulations, such information as may be
required to enable the Owner to prepare its federal and state income tax
returns, (c) file such tax returns relating to the Trust and make such elections
as from time to time may be required or appropriate under any applicable state
or federal statute or any rule or regulation thereunder so as to maintain the
federal income tax treatment for the Trust as set forth in Section 2.11, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.02(c) with respect to income or distributions to
Owner. The Owner Trustee shall elect under Section 1278
-11-
of the Code to include in income currently any market discount that accrues with
respect to the Contracts. If applicable, the Owner Trustee shall not make the
election provided under Section 754 or Section 761 of the Code.
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Trust Depositor shall sign on behalf of the Trust the tax
returns of the Trust.
(b) If Subchapter K of the Code should be applicable to the Trust, the
Certificateholder shall be designated the "TAX MATTERS PARTNER" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit to
or contemplated by the Transaction Documents to which the Trust is to be a party
and any amendment or other agreement (in each case, in such form as approved by
the Trust Depositor), as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator recommends with respect to the
Transaction Documents.
SECTION 6.02. GENERAL DUTIES. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged through the Administrator) all of its
responsibilities pursuant to the terms of this Agreement and the Transaction
Documents to which the Trust is a party and to administer the Trust in the
interest of the Owner, subject to the Transaction Documents and in accordance
with the provisions of this Agreement. Without limiting the foregoing, the
Owner Trustee shall on behalf of the Trust file and prove any claim or claims
that may exist against Newcourt USA in connection with any claims paying
procedure as part of an insolvency or receivership proceeding involving Newcourt
USA. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Transaction
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Transaction Document, and the Owner Trustee shall not be
held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article Four, in accordance with the terms of the
Transaction Documents, the Owner may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Transaction Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any other Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the Owner
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
-12-
instruction of the Owner received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement and the
other Transaction Documents, as it shall deem to be in the best interests of the
Owner, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is silent
or incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Owner requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other
Transaction Documents, as it shall deem to be in the best interests of the
Owner, and shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Trustee;
(ii) result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware being payable by the Owner Trustee; or
(iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee
contemplated in this Agreement. In the event that the Owner Trustee has
determined that any action set forth in clauses (i)-(iii) will result in the
consequences stated therein, the Administrator and the Owner Trustee shall
appoint one or more Persons to act as co-trustee pursuant to Section 10.05.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; and no implied duties or obligations shall be
read into this Agreement or any other Transaction Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Estate that result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of the Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the other Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
-13-
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal or state income tax
purposes. Neither the Administrator nor the Owner shall not direct the Owner
Trustee to take actions that would violate the provisions of this Section.
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or under any other Transaction Document under any circumstances, except (i) for
its own willful misconduct or negligence or (ii) in the case of the inaccuracy
of any representation or warranty contained in Section 7.03 expressly made by
the Owner Trustee. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee which did not
result from gross negligence on the part of such responsible
officer;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Owner;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any
of its rights or powers hereunder or under any Transaction Document
if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution
hereof by the Trust Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Estate, or for or in respect of the validity or sufficiency of the
Transaction Documents, other than the certificate of authentication
on the Trust Certificate, and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any
Noteholder or to the Owner, other than as expressly provided for
herein or expressly agreed to in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Trust Depositor, the Indenture Trustee or
the Servicer under any of the Transaction Documents or otherwise
and the Owner Trustee shall have no obligation or liability to
perform the obligations of the Trust under this Agreement or the
other Transaction Documents that are required to be performed by
the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer or the Trust Depositor
under the Sale and Servicing Agreement; and
-14-
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by the Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Transaction
Document, at the request, order or direction of the Owner, unless
the Owner has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right
of the Owner Trustee to perform any discretionary act enumerated in
this Agreement or in any other Transaction Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable
for other than its negligence or willful misconduct in the
performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Owner promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Transaction Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Trust Depositor and the Owner that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound or result in the
creation or imposition of any lien, charge or encumbrance on the
Trust Estate resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the
other Transaction Documents.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into by any of them, and the
Owner Trustee shall not be liable
-15-
for the conduct or misconduct of such agents or attorneys as shall have been
selected by the Owner Trustee with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article Seven, in accepting the trusts hereby created, Chase Manhattan Bank
Delaware acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Transaction
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE, NOTES OR
CONTRACTS. The recitals contained herein and in the Trust Certificate (other
than the signature of the Owner Trustee and the certificate of authentication on
the Trust Certificate) shall be taken as the statements of the Trust Depositor,
and the Owner Trustee assumes no responsibility for the correctness thereof.
The Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement, any other Transaction Document or the Trust Certificate (other
than the signature of the Owner Trustee and the certificate of authentication on
the Trust Certificate) or the Notes, or of any Contract or related documents.
The Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Contract, or
the perfection and priority of any security interest created by any Contract in
any Equipment or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust Estate or its ability to generate
the payments to be distributed to the Certificateholder under this Agreement or
the Noteholders under the Indenture, including, without limitation, the
existence, condition and ownership of any Equipment; the existence and
enforceability of any insurance thereon; the existence and contents of any
Contract on any computer or other record thereof; the validity of the assignment
of any Contract to the Trust or of any intervening assignment; the completeness
of any Contract; the performance or enforcement of any Contract; the compliance
by the Trust Depositor or the Servicer with any warranty or representation made
under any Transaction Document or in any related document or the accuracy of any
such warranty or representation; or any action of the Administrator, the
Indenture Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATE AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of the Trust Certificate or Notes and may deal with the Trust Depositor,
the Administrator, the Indenture Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon and which shall be paid consistent with Section 5.19 of
the Sale and Servicing Agreement. Additionally, the Owner Trustee shall be
entitled to be reimbursed by the Trust Depositor or Servicer for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder.
SECTION 8.02. INDEMNIFICATION. The Trust Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns and servants (collectively, the "INDEMNIFIED PARTIES") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
-16-
(collectively, "EXPENSES") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder; PROVIDED, HOWEVER, the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01; PROVIDED, FURTHER, that the liability of the Trust
Depositor under this Section shall be limited to the assets of the Trust
Depositor. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Owner Trustee's choice of legal
counsel shall be subject to the approval of the Trust Depositor, which approval
shall not be unreasonably withheld.
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Trust Estate immediately after such payment.
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article Eight) and the Trust shall
terminate and be of no further force or effect upon the earlier of (i) final
distribution by the Owner Trustee of all moneys or other property or proceeds of
the Trust Estate in accordance with the terms of the Indenture, the Sale and
Servicing Agreement and Article Five, (ii) the expiration of 21 years from the
death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (iii) the time provided in Section 9.02. The bankruptcy,
liquidation, dissolution, death or incapacity of any Owner, other than the Trust
Depositor as described in Section 9.02, shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Owner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust Depositor
nor any Holder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholder shall surrender its Trust Certificate to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to the Certificateholder mailed within
five Business Days of receipt of notice of such termination from the Servicer
given pursuant to Section 10.01 of the Sale and Servicing Agreement, stating (i)
the Distribution Date upon or with respect to which final payment of the Trust
Certificate shall be made upon presentation and surrender of the Trust
Certificate at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Trust Certificate at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to the Certificateholder. Upon presentation and
surrender of the Trust Certificate, the Paying Agent shall cause to be
distributed to the Certificateholder amounts distributable on such Distribution
Date pursuant to Section 5.02.
(d) In the event that the Certificateholder shall not surrender its
Trust Certificate for cancellation within six months after the date specified in
the above mentioned written notice, the Owner Trustee shall give a second
written notice to the Certificateholder to surrender its Trust Certificate for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice the Trust Certificate shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact
-17-
the Certificateholder concerning surrender of its Trust Certificate, and the
cost thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Trust Depositor.
(e) Upon the winding up of the Trust and 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 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR
WITHDRAWAL OR REMOVAL OF TRUST DEPOSITOR. In the event that an Insolvency Event
shall occur with respect to the Trust Depositor or the Trust Depositor shall
withdraw, liquidate or be removed from the Trust, this Agreement shall be
terminated in accordance with Section 9.01 90 days after the date of such event,
unless within such 90 day period, the Owner Trustee shall have received written
instructions from the Required Holders not to dissolve or terminate the Trust.
Promptly after the occurrence of any Insolvency Event with respect to the Trust
Depositor, the Trust Depositor shall give the Indenture Trustee and Owner
Trustee written notice thereof, and the Indenture Trustee shall give prompt
written notice to the Noteholders thereof. Upon a termination pursuant to this
Section, the Owner Trustee shall direct the Indenture Trustee promptly to sell
the Trust Assets in a commercially reasonable manner and on commercially
reasonable terms. The proceeds of such a sale of the Trust Assets shall be
treated as Collections under the Sale and Servicing Agreement.
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; and (a) having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's; or
(b) which the Rating Agencies have otherwise indicated in writing is an entity
acceptable to act as Owner Trustee hereunder. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator. Upon receiving such notice
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator, may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
-18-
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator, and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under this Agreement, with like effect as if originally named as Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to the
Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED, that such corporation shall be eligible pursuant to Section 10.01 and,
PROVIDED, FURTHER, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency.
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any financed Equipment may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
-19-
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-
trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of or affording protection to, the Owner
Trustee. Each such instrument shall be filed with the Owner Trustee and a copy
thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) The Agreement may be amended by the Trust Depositor and the Owner
Trustee, without the consent of any of the Noteholders or the Certificateholder,
to cure any ambiguity, to correct or supplement any provisions in this Agreement
or to add any other provisions with respect to matters or questions arising
under this Agreement that shall not be inconsistent with the provisions of this
Agreement; PROVIDED, HOWEVER, that any such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder or the Certificateholder.
(b) This Agreement may also be amended from time to time by the Trust
Depositor, and the Owner Trustee, with the consent of the Required Holders and
the Certificateholder, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Noteholders or the Certificateholder;
PROVIDED, HOWEVER, that no such amendment shall increase or reduce in any manner
the amount of, or accelerate or delay the timing of, (i) collections of payments
on Contracts or
-20-
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder, or (ii) eliminate the Certificateholder
consent or reduce the aforesaid percentage of the Outstanding Amount of the
Notes required to consent to any such amendment, without the consent of the
Holders of all outstanding Notes and the Trust Certificate.
(c) Prior to the execution of any such amendment or consent, the Trust
Depositor shall furnish written notification of the substance of such amendment
or consent, together with a copy thereof, to the Indenture Trustee, the
Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of the Certificateholder, Noteholders or the Indenture Trustee
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of the Certificateholder provided for in this Agreement or in any other
Transaction Document) and of evidencing the authorization of the execution
thereof by the Certificateholder shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the other Transaction Documents,
and that all conditions precedent to the execution and delivery of such
amendment as set forth in Transaction Documents have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNER. The Owner shall
not have legal title to any part of the Trust Estate. The Owner shall be
entitled to receive distributions with respect to its undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the Owner to
and in its ownership interest in the Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Trust Depositor, the Owner, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Servicer or any Seller:
Newcourt Financial USA, Inc.
-21-
2700 Bank One Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
(ii) If to the Trust Depositor:
Newcourt Receivables Corporation II
2700 Bank One Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
(iii) If to the Indenture Trustee:
Manufacturers and Traders Trust Company
0 X&X Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax No.: (000) 000-0000
(iv) If to the Owner Trustee:
Chase Manhattan Bank Delaware
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Department
Fax No.: (000) 000-0000
(vii) If to the Underwriters:
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Asset Securitization Division
Fax No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Trust
Certificate or the rights of the Holder thereof.
-22-
SECTION 11.06. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Trust Depositor, and the Owner Trustee and their respective successors and
permitted assigns and the Owner and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Owner shall bind the successors and assigns of such
Owner.
SECTION 11.08. COVENANTS OF THE TRUST DEPOSITOR. In the event that (a)
the Certificate Balance shall be reduced by realized losses and (b) any
litigation with claims in excess of $1,000,000 to which the Trust Depositor is a
party which shall be reasonably likely to result in a material judgment against
the Trust Depositor that the Trust Depositor will not be able to satisfy shall
be commenced, during the period beginning immediately following the commencement
of such litigation and continuing until such litigation is dismissed or
otherwise terminated (and, if such litigation has resulted in a final judgment
against the Trust Depositor, such judgment has been satisfied), the Trust
Depositor shall not pay any dividend to the Servicer, or make any distribution
on or in respect of its capital stock to the Servicer, or repay the principal
amount of any indebtedness of the Trust Depositor held by the Servicer, unless
(i) after giving effect to such payment, distribution or repayment, the Trust
Depositor's liquid assets shall not be less than the amount of actual damages
claimed in such litigation or (ii) the Rating Agencies shall not downgrade the
then existing rating on the Certificate with respect to any such payment,
distribution or repayment.
SECTION 11.09. NO PETITION.
(a) The Trust Depositor will not at any time institute against the
Trust any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificate, the Notes, this Agreement or any of the other Transaction
Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Trust
Depositor or the Trust, or join in any institution against the Trust Depositor,
or the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificate, the Notes, this Agreement or any of the other Transaction
Documents.
SECTION 11.10. NO RECOURSE. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificate
represents beneficial interests in the Trust only and does not represent
interests in or obligations of the Trust Depositor, the Servicer, the Seller,
the Administrator, the Owner Trustee, the Indenture Trustee or any of the
respective Affiliates and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Trust Certificate or the other Transaction Documents.
SECTION 11.11. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. TRUST CERTIFICATE TRANSFER RESTRICTIONS. The Trust
Certificate may not be acquired by or for the account of a Benefit Plan. By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed
to have represented and warranted that it is not a Benefit Plan nor will it
hold such Trust Certificate for the account of a Benefit
-23-
Plan. By accepting and holding a Trust Certificate, the Holder thereof shall
be deemed to have represented and warranted that it is not a Benefit Plan.
SECTION 11.14. TRUST DEPOSITOR PAYMENT OBLIGATION. The Trust Depositor
shall be responsible for payment of the Administrator's compensation pursuant to
Section 3 of the Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder.
[remainder of this page intentionally left blank]
-24-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
NEWCOURT RECEIVABLES CORPORATION II,
as Trust Depositor
By:
---------------------------------
Printed Name:
--------------------
Title:
---------------------------
By:
---------------------------------
Printed Name:
--------------------
Title:
---------------------------
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
------------------------------
Printed Name:
-----------------
Title
-------------------------
-25-
EXHIBIT A
CERTIFICATE OF TRUST OF
NEWCOURT RECEIVABLES ASSET TRUST 1997-1
This Certificate of Trust of Newcourt Receivables Asset Trust 1997-1 (the
"TRUST"), dated August 21, 1997, is being duly executed and filed by Chase
Manhattan Bank Delaware, a Delaware banking corporation, as Owner Trustee, to
form a business trust under the Delaware Business Trust Act (12 DEL. CODE,
Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Newcourt
Receivables Asset Trust 1997-1.
2. DELAWARE TRUSTEE. The name and business address of the Owner
Trustee of the Trust in the State of Delaware is Chase Manhattan Bank Delaware,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (Attn: Corporate Trust
Administration).
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Owner Trustee
By:
----------------------------------------
Printed Name:
---------------------------
Title:
---------------------------------
A-1
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE
EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT AND INDENTURE REFERRED TO
HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
NEWCOURT RECEIVABLES CORPORATION II, NEWCOURT FINANCIAL USA, INC. OR ANY
AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE TRUST AGREEMENT. THIS
TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED UNLESS THE
CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN COMPLIED
WITH.
THIS CERTIFICATE IS TRANSFERRABLE ONLY IN WHOLE AND NOT IN PART.
THIS TRUST CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS TRUST
CERTIFICATE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
NEWCOURT RECEIVABLES ASSET TRUST 1997-1 CLASS E RECEIVABLE-BACKED CERTIFICATE
NO. 1 Trust Certificate
Principal Balance $[___________]
THIS CERTIFIES THAT Newcourt Receivables Corporation II is the registered
owner of $[________________] of a nonassessable, fully-paid, fractional
undivided equity interest in the Newcourt Receivables Asset Trust 1997-1 (the
"TRUST") formed by Newcourt Receivables Corporation II, a Delaware corporation
(the "TRUST DEPOSITOR").
The Trust was created pursuant to a Trust Agreement, dated as of November
1, 1997 (as amended, restated and/or supplemented from time to time, the "TRUST
AGREEMENT"), among Newcourt Receivables Corporation II, as Trust Depositor (the
"TRUST DEPOSITOR"), and Chase Manhattan Bank Delaware, as owner trustee (the
"OWNER TRUSTEE"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in (i) the Trust Agreement,
(ii) the Sale and Servicing Agreement, dated as of November 1, 1997 (the "SALE
AND SERVICING AGREEMENT"), among the Trust, Newcourt Receivables Corporation II,
as depositor (the "TRUST DEPOSITOR"), Newcourt Financial USA, Inc. ("NEWCOURT
USA"), as Servicer (in such capacity, the "SERVICER") and Manufacturers and
Traders Trust Company, as Indenture Trustee (the "INDENTURE TRUSTEE") or (iii)
the Indenture, dated as of November 1, 1997 (the "INDENTURE"), between the Trust
and the Indenture Trustee.
This Trust Certificate is the duly authorized Trust Certificate designated
as "NEWCOURT RECEIVABLES ASSET TRUST CLASS E RECEIVABLE-BACKED CERTIFICATE" (the
"TRUST CERTIFICATE"). Also issued under the Indenture are seven classes of
notes designated as "[________]% NEWCOURT RECEIVABLES ASSET TRUST CLASS A-1
RECEIVABLE- BACKED NOTES" and "[_____________]% NEWCOURT RECEIVABLES ASSET TRUST
CLASS A-2 RECEIVABLE-BACKED NOTES" and "[_____________]% NEWCOURT RECEIVABLES
ASSET TRUST CLASS A-3 RECEIVABLE-BACKED NOTES" and "[_____________]% NEWCOURT
RECEIVABLES ASSET TRUST CLASS A-4 RECEIVABLE-BACKED NOTES" and "[_________]%
NEWCOURT RECEIVABLES ASSET TRUST CLASS B RECEIVABLE-BACKED NOTES", and
"[_________]% NEWCOURT RECEIVABLES ASSET TRUST CLASS C RECEIVABLE-BACKED NOTES"
and "[________]% NEWCOURT RECEIVABLES ASSET TRUST CLASS D RECEIVABLE-BACKED
NOTES" (collectively, the "NOTES"). This Trust Certificate is issued under and
is subject to the terms, provisions and conditions of the Trust Agreement, to
which Trust Agreement the Holder of this Trust
Certificate by virtue of its acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes, among other things, all the
right, title and interest of the Trust Depositor in and to the Contracts listed
on the List of Contracts delivered on the Closing Date (including, without
limitation, all security interests and all monies due or to become due in
payment of such Contracts on and after the related Cutoff Date, but excluding
any Scheduled Payments due prior to the related Cutoff Date) and all interests
in the Equipment related thereto.
Under the Trust Agreement, there will be distributed on the twentieth
(20th) day of each month or if such day is not a Business Day the next
succeeding Business Day commencing December 22, 1997 (each, a "DISTRIBUTION
DATE"), and ending no later than the Distribution Date in May 2005 to the Person
in whose name this Trust Certificate is registered at the close of business on
the 1st day of the immediately preceding calendar month (each, a "RECORD DATE"),
the amount to be distributed to the Certificateholder pursuant to the Trust
Agreement on such Distribution Date.
The Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer, the Trust Depositor, Owner
Trustee, Indenture Trustee and the Certificateholder that, for purposes of
federal income, state and local income and single business tax and any other
income taxes, the Trust will be disregarded as a separate entity for federal
income tax purposes pursuant to Treasury Regulations Section 301.7701-
3(b)(1)(ii) and that all items of income, deduction, gain, loss or credit of the
Trust will be treated as such items of the Certificateholder. The Trust
Depositor and the Certificateholder, by acceptance of a Trust Certificate,
agrees to treat, and to take no action inconsistent with such treatment of, the
Trust for federal income tax purposes.
The Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the Trust
Depositor, or join in any institution against the Trust or the Trust Depositor
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificate, the Notes, the Trust Agreement or any of the other
Transaction Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or its Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Trust Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Trust Certificate will
be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Trust Certificate
at the office or agency maintained for that purpose by the Owner Trustee in The
City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or any other Transaction Document or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
2
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an interest
in the Trust Depositor, Newcourt USA, as the Seller or Servicer, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as expressly
set forth or contemplated herein or in the Trust Agreement or the other
Transaction Documents. In addition, this Trust Certificate is not guaranteed by
any governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Contracts and certain
other amounts, in each case as more specifically set forth herein and in the
Sale and Servicing Agreement. A copy of each of the Sale and Servicing
Agreement and the Trust Agreement may be examined by any Certificateholder upon
written request during normal business hours at the principal office of the
Trust Depositor and at such other places, if any, designated by the Trust
Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trust Depositor and the rights of the Certificateholder under the Trust
Agreement at any time by the Trust Depositor and the Owner Trustee with the
consent of the Required Holders (as defined in the Sale and Servicing
Agreement). Any such consent shall be conclusive and binding on the Holder and
on all future Holders of this Trust Certificate and of any Trust Certificate
issued upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holder of this Trust
Certificate or any Noteholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in The City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar executed by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon a new Trust Certificate evidencing the
same aggregate certificate principal balance in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is the Owner Trustee.
Except as provided in the Trust Agreement, this Trust Certificate is
issuable only as a registered Trust Certificate without coupons. No service
charge will be made for any registration of transfer of this Trust Certificate,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Trust Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Certificateholder
of all amounts required to be paid to such Holder pursuant to the Trust
Agreement and the Sale and Servicing Agreement and the deposition of all
property held as part of the Trust Estate. The Trust Depositor may at its
option purchase the Trust Estate at the times and at the prices specified in the
Sale and Servicing Agreement.
This Trust Certificate may not be acquired by a Benefit Plan. By accepting
and holding this Trust Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan and is not acquiring
this Trust Certificate for the account of such an entity.
3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly executed.
Dated: [______], 1997 NEWCOURT RECEIVABLES ASSET TRUST 1997-1
By: Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Owner Trustee
By:
-----------------------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Trust Certificate referred to in the within-mentioned Trust
Agreement.
Chase Manhattan Bank Delaware,
not in its individual capacity but solely
as Owner Trustee
By:
-------------------------------------------
Authorized Signatory
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 type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
to transfer said Trust Certificate on the books of the Certificate Registrar,
will full power of substitution in the premises.
Dated:
------------------------
Signature Guaranteed:
------------------------------------- --------------------------------------
NOTICE: Signature(s) must be NOTICE: The signature to this
guaranteed by an eligible guarantor assignment must correspond with the
institution. name of the registered owner as it
appears on the face of the within
Trust Certificate in every particular,
without alteration or enlargement or
any change whatever.
5
