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TRUST AGREEMENT
by and between
XXXXXX FUNDING CORPORATION
as Trust Depositor,
and
[_____________________],
as Owner Trustee
Dated as of August 1, 1997
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TABLE OF CONTENTS
ARTICLE ONE Page
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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 TWO
ORGANIZATION....................................................................................4
Section 2.01. Name.............................................................................4
Section 2.02. Office...........................................................................4
Section 2.03. Purposes and Powers..............................................................4
Section 2.04. Appointment of Owner Trustee.....................................................5
Section 2.05. Capital Contribution of Owner Trust Estate.......................................5
Section 2.06. Declaration of Trust.............................................................5
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............................6
Section 2.11. Federal Income Tax Treatment.....................................................6
ARTICLE THREE
TRUST CERTIFICATE AND TRANSFER OF INTEREST......................................................8
Section 3.01. Ownership........................................................................8
Section 3.02. The Trust Certificate............................................................8
Section 3.03. Authentication and Delivery of Trust Certificate.................................8
Section 3.04. Registration of Transfer and Exchange of Trust Certificate.......................8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates..........................9
Section 3.06. Persons Deemed Owners............................................................9
Section 3.07. Access to List of Certificateholder's Names and Addresses........................9
Section 3.08. Maintenance of Office or Agency..................................................9
Section 3.09. Temporary Trust Certificate......................................................9
Section 3.10. Appointment of Paying Agent.....................................................10
Section 3.11. Ownership by Trust Depositor of Trust Certificate...............................10
ARTICLE FOUR........................................................................................11
ACTIONS BY OWNER TRUSTEE.......................................................................11
Section 4.01. Prior Notice to Owner with Respect to Certain Matters...........................11
Section 4.02. Action by Owner with Respect to Certain Matters.................................11
Section 4.03. Action by Owner with Respect to Bankruptcy......................................11
Section 4.04. Restrictions on Owner's Power...................................................11
ARTICLE FIVE
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APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES.........................................................................................................13
Section 5.01. Establishment of Trust Account..........................................................................13
Section 5.02. Application of Trust Funds..............................................................................13
Section 5.03. Method of Payment.......................................................................................13
Section 5.04. No Segregation of Moneys; No Interest...................................................................13
Section 5.05. Accounting and Reports to the Certificateholder,
the Internal Revenue Service and Others.................................................................13
Section 5.06. Signature on Returns; Tax Matters Partner...............................................................14
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE..................................................................................15
Section 6.01. General Authority.......................................................................................15
Section 6.02. General Duties..........................................................................................15
Section 6.03. Action Upon Instruction.................................................................................15
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions......................................16
Section 6.05. No Action Except Under Specified Documents or Instructions..............................................16
Section 6.06. Restrictions............................................................................................16
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE...........................................................................................17
Section 7.01. Acceptance of Trusts and Duties.........................................................................17
Section 7.02. Furnishing of Documents.................................................................................18
Section 7.03. Representations and Warranties..........................................................................18
Section 7.04. Reliance; Advice of Counsel.............................................................................18
Section 7.05. Not Acting in Individual Capacity.......................................................................18
Section 7.06. Owner Trustee Not Liable for Trust Certificate, Notes or Contracts......................................19
Section 7.07. Owner Trustee May Own Trust Certificate and Notes.......................................................19
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE..........................................................................................20
Section 8.01. Owner Trustee's Fees and Expenses.......................................................................20
Section 8.02. Indemnification.........................................................................................20
Section 8.03. Payments to the Owner Trustee...........................................................................20
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT.........................................................................................21
Section 9.01. Termination of Trust Agreement..........................................................................21
Section 9.02. Dissolution upon Bankruptcy of Trust
Depositor or Withdrawal or Removal of Trust Depositor...................................................21
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.................................................................22
Section 10.01. Eligibility Requirements for Owner Trustee.............................................................22
Section 10.02. Resignation or Removal of Owner Trustee................................................................22
Section 10.03. Successor Owner Trustee................................................................................22
Section 10.04. Merger or Consolidation of Owner Trustee...............................................................23
Section 10.05. Appointment of Co-Trustee or Separate Trustee..........................................................23
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ARTICLE ELEVEN
MISCELLANEOUS.......................................................................................................25
Section 11.01. Supplements and Amendments..........................................................................25
Section 11.02. No Legal Title to Trust Estate in Owner.............................................................25
Section 11.03. Limitations on Rights of Others.....................................................................26
Section 11.04. Notices.............................................................................................26
Section 11.05. Severability of Provisions..........................................................................27
Section 11.06. Counterparts........................................................................................27
Section 11.07. Successors and Assigns..............................................................................27
Section 11.09. No Petition.........................................................................................27
Section 11.10. No Recourse.........................................................................................28
Section 11.11. Headings............................................................................................28
Section 11.12. Governing Law.......................................................................................28
Section 11.13. Trust Certificate Transfer Restrictions.............................................................28
Section 11.14. Trust Depositor Payment Obligation..................................................................28
EXHIBITS
Exhibit A - Form of Certificate of Trust...........................................................................A-1
Exhibit B - Form of Trust Certificate..............................................................................B-1
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TRUST AGREEMENT dated as of August 1, 1997, between XXXXXX FUNDING
CORPORATION, a Delaware corporation, as Trust Depositor (the "Trust Depositor"),
and [________________], a Delaware banking corporation, as owner trustee (the
"Owner Trustee").
WHEREAS, in connection herewith, the Trust Depositor is willing to assume
certain obligations pursuant hereto; and
WHEREAS, in connection herewith, the Trust Depositor is willing to purchase
the Trust Certificate (as defined herein) to be issued pursuant to this
Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 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
Xxxxxx Financial, Inc., as administrator.
"Agreement" means this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Applicant" shall have the meaning set forth in Section 3.07.
"Benefit Plan" means (i) an employee benefit plan (as such term is defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code (S) 3801 et seq., as the same may be amended from time to time.
"Certificate Balance" means $[ ].
"Certificate Distribution Account" means the account established and
maintained as such pursuant to Section 5.01.
"Certificate of Trust" means the Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of Exhibit A hereto.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the register (or any successor thereto) appointed pursuant to
Section 3.04.
"Certificateholder" or "Holder" means with respect to a Definitive Trust
Certificate the Person in whose name the Trust Certificate is registered in the
Certificate Register, except that, solely for the purposes of giving any
consent, waiver, request or demand pursuant to this Agreement, the interest
evidenced by any Trust Certificate registered in the name of the Trust
Depositor, Xxxxxx Financial, Inc. or any of their respective Affiliates shall
not be taken into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request or demand in respect of
the Trust Certificate shall have been obtained.
"Closing Date" means August __, 1997.
"Code" means the Internal Revenue Code of 1986, as amended.
"Definitive Trust Certificates" shall have the meaning set forth in Section
3.09.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Xxxxxx Financial" means Xxxxxx Financial, Inc., a Delaware Corporation.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" means the Indenture dated as of the date hereof between the
Trust and [ ], as Indenture Trustee.
"Note Depository Agreement" means the Agreement dated as of the Closing
Date among the Trust, the Indenture Trustee, the Administrator and DTC, as the
Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"Notes" means the Class A-1 Notes, Class A-2 Notes, the Class B Notes, the
Class C Notes and the subordinated Notes in each case issued pursuant to the
Indenture.
"Owner" means the Holder of the Trust Certificate.
"Owner Trustee" means [______________], a Delaware corporation, not in its
individual capacity but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be [_____________________________________], Attn:
[________________], 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 Trust Depositor and Xxxxxx Financial.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 3.10.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof) unincorporated organization or government or any agency or political
subdivision thereof.
"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, as Issuer, the Trust Depositor,
Xxxxxx Financial, as servicer, and [ ], as
Indenture Trustee as the same may be amended or supplemented from time to time.
"Secretary of State" means the Secretary of State of the State of Delaware.
"Tax Matters Partner" shall have the meaning provided in Section 5.06(b)
hereof.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
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"Trust" means the trust established by this Agreement.
"Trust Certificate" means the trust certificate evidencing the beneficial
equity interest of an Owner in the Trust, substantially in the form of Exhibit B
hereto.
"Trust Depositor" means Xxxxxx Funding Corporation in its capacity as Trust
Depositor hereunder, and its successors.
"Trust Estate" means all right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of the Trust from time to time, including any rights of the Owner Trustee and
the Trust pursuant to the Sale and Servicing Agreement and the Administration
Agreement.
"Underwriters" means First Union Capital Markets Corp., [________________],
and [________________].
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.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as "Xxxxxx
Equipment Asset Receivables 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:
(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 to pay the
organizational, start-up and transactional expenses of the Trust
and to pay the balance to the Trust Depositor pursuant to the
Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Owner pursuant to the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Transaction
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Transaction Documents, to engage
in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions
to the Owner and the Noteholders.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee to engage in any business operations or any activities other than those
set forth in the introductory sentence of this Section. Specifically, the Owner
Trustee shall have no authority to engage in any business operations, or acquire
any assets other than those specifically included in the Trust Estate under
Section 1.01, or otherwise vary the assets held by the Trust. Similarly, the
Owner Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of this Section.
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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 Trust Estate 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 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 the periods after January 1, 1997. The parties
agree not to take any action inconsistent with such intended federal income tax
treatment. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute for
the sole purpose and to the extent necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of Section 2.03.
Section 2.07. Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the Trust
Depositor shall be liable directly to and will indemnify any injured party or
any other creditor of the Trust for all losses, claims, damages, liabilities and
expenses of the Trust to the extent that the Trust Depositor would be liable if
the Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which Trust Depositor were a general partner (including any
Illinois personal property replacement tax that is imposed on the Trust as a
partnership); provided, however, that Trust Depositor shall not be liable for
any losses incurred by a Certificateholder in the capacity of an investor in the
Trust Certificate or a Noteholder in the capacity of an investor in the Notes.
In addition, any third party creditors of the Trust (other than in connection
with the obligations described in the immediately preceding sentence for which
the Trust Depositor shall not be liable) shall be deemed third party
beneficiaries of this paragraph. The obligations of the Trust Depositor under
this paragraph shall be evidenced by the Trust Certificate described in Section
3.11.
(b) Other than to the extent set forth in Section 2.07(a), no Owner,
solely by virtue of its being the Holder of the Trust Certificate, shall have
any personal liability for any liability or obligation of the Trust.
Section 2.08. Title to Trust Property. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in an Owner Trustee or Owner Trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Illinois or the State of
Delaware. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware and payments will be
made by the Trust only from Delaware. The only office of the Trust will be at
the Owner Trustee Corporate Trust Office.
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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
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) 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
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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 its assignee) as the sole Certificateholder.
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ARTICLE THREE
TRUST CERTIFICATE AND TRANSFER OF INTERESTS
Section 3.01. Ownership. 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.
Section 3.02. The Trust Certificate. The Trust Certificate shall be
substantially in the form of Exhibit B hereto. The Trust Certificate shall be
issed in an amount equal to the Certificate Balance. The Trust Certificate
shall be executed by the Owner Trustee on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee and shall be
deemed to have been validly issued when so executed. The Trust Certificate
bearing the manual or facsimile signature of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Owner
Trustee shall be valid and binding obligation of the Trust, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificate or did not hold such
offices at the date of such Trust Certificate. The Trust Certificate shall be
dated the date of its authentication.
Section 3.03. Authentication and Delivery of Trust Certificate. The Owner
Trustee shall cause to be authenticated and delivered upon the order of the
Trust Depositor, in exchange for the Contracts and the other assets of the
Trust, simultaneously with the sale, assignment and transfer to the Trust of the
Contracts, and the constructive delivery to the Owner Trustee of the Contract
Files and the other assets of the Trust, 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 Notes, $[ ], (ii) Class B Notes, $[ ]
and (iii) Class C Notes, $[ ]. No Trust Certificate shall be entitled
to any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Trust Certificate a certificate of authentication substantially
in the form set forth in the form of Trust Certificate attached hereto as
Exhibit B, executed by the Owner Trustee or its authenticating agent, by manual
signature, and such certificate upon any Trust Certificate shall be conclusive
evidence, and the only evidence, that such Trust Certificate has been duly
authenticated and delivered hereunder. Upon issuance, authorization and delivery
pursuant to the terms hereof, the Trust Certificate will be entitled to the
benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange of Trust Certificate.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of Trust
Certificate and transfers and exchanges of the Trust Certificate as provided
herein. The Owner Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering the Trust Certificate and transfers and exchanges
of the Trust Certificate as herein provided. In the event that, subsequent to
the Closing Date, the Owner Trustee notifies the Servicer that it is unable to
act as Certificate Registrar, the Servicer shall appoint another bank or trust
company, having an office or agency located in the City of Chicago, Illinois,
agreeing to act in accordance with the provisions of this Agreement applicable
to it, and otherwise acceptable to the Owner Trustee, to act as successor
Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of any Trust Certificate
at the Owner Trustee Corporate Trust Office, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee, one new
Trust Certificate having the same aggregate principal amount.
(c) Every Trust Certificate presented or surrendered for registration of
transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing.
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(d) No service charge shall be made for any registration of transfer or
exchange of the Trust Certificate, but the Owner Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer of the Trust Certificate.
(e) All Trust Certificates surrendered for registration of transfer shall
be canceled and subsequently destroyed by the Owner Trustee.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If
(i) any mutilated Trust Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Trust Certificate, and (ii) there is delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice that such Trust Certificate has been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or
its authenticating agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new
Trust Certificate of like tenor and fractional undivided interest. In
connection with the issuance of any new Trust Certificate under this Section,
the Owner Trustee may require the payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto. Any duplicate Trust Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and any of their respective agents may treat the Person in whose name
any Trust Certificate is registered as the owner of such Trust Certificate for
the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar, any Paying Agent or any of their respective agents shall be affected
by any notice of the contrary.
Section 3.07. Access to List of Certificateholder's Names 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 [_____], an office or offices or agency or agencies where the Trust
Certificate may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the Trust
Certificate and this Agreement may be served. The Owner Trustee hereby
designates the Owner Trustee Corporate Trust Office as its office for such
purposes. The Owner Trustee shall give prompt written notice to the Trust
Depositor, the Servicer and to the Certificateholder of any change in the
location of the Certificate Register or any such office or agency.
Section 3.09. Temporary Trust Certificate. Pending the preparation of the
definitive fully registered Trust Certificate (the "Definitive Trust
Certificate"), the Owner Trustee, on behalf of the Trust, may execute,
authenticate and deliver, temporary Trust Certificate that is printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the Definitive Trust Certificate in
lieu of which it is issued. If a temporary Trust Certificate is issued, the
Trust Depositor will cause Definitive Trust Certificate to be prepared without
unreasonable delay. After the preparation of the Definitive Trust Certificate,
the temporary Trust Certificate shall be exchangeable for the Definitive Trust
Certificate upon surrender of the temporary Trust Certificate at the office or
agency to be maintained as provided in Section 3.08, without charge to the
Holder. Upon surrender for cancellation of the temporary Trust Certificate, the
Owner Trustee shall execute and authenticate and deliver in exchange therefor a
like principal amount of the Definitive Trust Certificate. Until so exchanged,
the temporary Trust Certificate shall in all respects be entitled to the same
benefits hereunder as a Definitive Trust Certificate.
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Section 3.10. Appointment of Paying Agent. The Paying Agent shall make
distributions to the Certificateholder from the Certificate Distribution Account
pursuant to Section 5.02(a) and shall report the amounts of such distributions
to the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent initially shall
be [ ], 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 [ ]
shall no longer be the Paying Agent, the Owner Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Owner Trustee that, as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 3.11. Ownership by Trust Depositor of Trust Certificate. Trust
Depositor shall on the Closing Date purchase from the Underwriters a Trust
Certificate representing the Certificate Balance.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owner 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
Owner shall not have notified the Owner Trustee in writing prior to the 30th day
after such notice is given that such Owner has withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of the Contracts)
and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Contracts);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(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 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. The Owner shall not direct
the Owner Trustee to take or to refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner
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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.
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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 establish and maintain in the name of
the Trust an Eligible Account (the "Certificate Distribution Account"), bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Certificateholder.
The Owner Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholder. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Account, the Owner
Trustee (or the Trust Depositor on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee or an
Affiliate thereof) shall within ten Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may consent) establish a
new Certificate Distribution Account as an Eligible Account and shall transfer
any cash and/or any investments to such new Certificate Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee will distribute to
Certificateholder amounts deposited in the Certificate Distribution Account
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 9.06 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 Certificate, distributions required to
be made to the Certificateholder of record on the related Record Date shall be
made by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
Section 5.04. No Segregation of Moneys; No Interest. Subject to Sections
5.01 and 5.02, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
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 (including Schedule K-1) 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
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may be required or appropriate under any applicable state or federal statute or
any rule or regulation thereunder so as to maintain the federal income tax
treatment for the Trust as set forth in Section 2.11, (d) cause such tax
returns to be signed in the manner required by law and (e) collect or cause to
be collected any withholding tax as described in and in accordance with Section
5.02(c) with respect to income or distributions to Owner. The Owner Trustee
shall elect under Section 1278 of the Code to include in income currently any
market discount that accrues with respect to the Contracts. 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
Trust Depositor shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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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, 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 form time to time to take such action as the Administrator recommends
with respect to the Transaction Documents.
Section 6.02. General Duties. Subject to the provisions and limitations
of Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge (or cause to be discharged through the Administrator all of its
responsibilities pursuant to the terms of this Agreement and the Transaction
Documents to which the Trust is a party and to administer the Trust in the
interest of the Owner, subject to the Transaction Documents and in accordance
with the provisions of this Agreement. Without limiting the foregoing, the
Owner Trustee shall on behalf of the Trust file and prove any claim or claims
that may exist against Xxxxxx Financial in connection with any claims paying
procedure as part of an insolvency or receivership proceeding involving Xxxxxx
Financial. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Transaction Document, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, in accordance with the terms of the
Transaction Documents the Owner may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) 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
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 in
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
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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.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; and no implied duties or obligations shall be
read into this Agreement or any other Transaction Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Estate that result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of the Trust Estate.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the other Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal or state income tax
purposes. The Owner shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
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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;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of
the Administrator or any Owner;
(c) no provision of this Agreement or any other Transaction Document shall
require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Transaction Document if the Owner
Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution
hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate, or for or
in respect of the validity or sufficiency of the Transaction
Documents, other than the certificate of authentication on the Trust
Certificate, and the Owner Trustee shall in no event assume or incur
any liability, duty, or obligation to any Noteholder or to any Owner,
other than as expressly provided for herein or expressly agreed to in
the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Trust Depositor, the Indenture Trustee or the
Servicer under any of the Transaction Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Transaction
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the
Indenture or the Servicer, or the Trust Depositor under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any other Transaction Document, at
the request, order or direction of the Owner, unless such Owner has
offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by
the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in
any other Transaction Document
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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
an 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 for the conduct or misconduct of such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel, accountants
or other such persons.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article Seven, in accepting the trusts hereby created, [______________]
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.
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Section 7.06. Owner Trustee Not Liable for Trust Certificate, Notes or
Contracts. The recitals contained herein and in the Trust Certificate (other
than the signature and countersignature of the Owner Trustee and the certificate
of authentication on the Trust Certificate) shall be taken as the statements of
the Trust Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Transaction Document or the
Trust Certificate (other than the signature and countersignature of the Owner
Trustee and the certificate of authentication on the Trust Certificate) or the
Notes, or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any Equipment or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to 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 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.
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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 7.05(a)
of the Sale and Servicing Agreement. Additionally, the Owner Trustee shall be
entitled to be reimbursed by the Trust Depositor for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
Section 8.02. Indemnification. The Trust Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Trust Depositor, which
approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Trust Estate immediately after such payment.
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ARTICLE 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 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 Certificates, the Paying Agent shall cause to be
distributed to the Certificateholder amounts distributable on such Distribution
Date pursuant to Section 5.02.
(d) In the event that the Certificateholder shall not surrender its Trust
Certificate for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to such Certificateholder to surrender its Trust Certificate for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice the Trust Certificate shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the Certificateholder
concerning surrender of its Trust Certificates, and the cost thereof shall be
paid out of the funds and other assets that shall remain subject to this
Agreement. 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.
-21-
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; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Xxxxx'x. 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
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
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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:
(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.
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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.
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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 Holders (as such term
is defined in the Indenture) of Notes evidencing not less than 66 2/3% of the
Outstanding Amount of the Notes, each voting as a separate Class and the
consent of the Certificateholder (which consent of any Holder of a Note or Trust
Certificate given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holders and on all future
Holder of such Note or Trust Certificate, as the case may be, issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made thereon), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholder; provided, however, that no such amendment shall increase
or reduce in any manner the amount of, or accelerate or delay the timing of, (i)
collections of payments on Contracts or distributions that shall be required to
be made for the benefit of the Noteholders or the Certificateholder or any
Interest Rate or the Pass-Through Rate 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 Trust Certificate.
(c) Prior to the execution of any such amendment or consent, the Owner
Trustee 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 Certificateholder, Noteholders or the Indenture Trustee pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of the
Certificateholder provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by the
Certificateholder shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Owner. The Owner shall
not have legal title to any part of the Trust Estate. The Owner shall be
entitled to receive distributions with respect to its undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the Owner to
and in its ownership interest in the Trust Estate shall operate to terminate
this Agreement or the
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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 Seller:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
Telecopier No.:
(ii) If to the Trust Depositor:
Xxxxxx Funding Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.:
(iii) If to the Indenture Trustee:
[ ]
[ ]
[ ]
Attention: Indenture Trust Administration
Telecopier No.:
(iv) If to the Owner Trustee:
[________________]
[________________]
[________________]
[________________]
Attention: [________________]
Telecopier No.: [________________]
(v) If to Xxxxx'x:
Xxxxx'x Investor's Service, Inc.
00 Xxxxxx Xxxxxx
-00-
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Telecopier No.: (000) 000-0000
(vi) If to Fitch:
Telecopier No.:
(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
Telecopier No.:
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Trust
Certificate or the rights of the Holder thereof.
Section 11.06. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Trust Depositor, and the Owner Trustee and their respective successors and
permitted assigns and each Owner and its successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Owner shall bind the successors and assigns of such
Owner.
Section 11.08. 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. 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 Certificate, the Notes, the Trust Agreement or any of the Transaction
Documents.
Section 11.09. No Petition.
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(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
represent beneficial interests in the Trust only and do 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 my 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
XXXXXX FUNDING CORPORATION,
as Trust Depositor
By:
-------------------------------------
Printed Name:
----------------------
Title:
------------------------------
[ ], as Owner Trustee
--------------
By:
-------------------------------------
Printed Name:
----------------------
Title:
------------------------------
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EXHIBIT A
CERTIFICATE OF TRUST OF
XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1997-1
This Certificate of Trust of Xxxxxx Equipment Asset Receivables Trust 1997-
1 (the "Trust"), dated August __, 1997, is being duly executed and filed by
[______________], a Delaware corporation, as Owner Trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. Code, (S) 3801 et seq.).
1. Name. The name of the business trust formed hereby is Xxxxxx
Equipment Asset Receivables Trust 1997-1.
2. Delaware Trustee. The name and business address of the Owner Trustee
of the Trust in the State of Delaware is 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx x0000.
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.
[ ],
--------------
not in its individual capacity but solely as
Owner Trustee
By:
--------------------------------------------
Printed Name:
-- --------------------------
Title:
-------------------------------------
A-1
EXHIBIT B
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE
EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT AND INDENTURE REFERRED TO
HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
XXXXXX FUNDING CORPORATION, XXXXXX FINANCIAL, INC., XXXXXX FINANCIAL LEASING,
INC. OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE TRUST
AGREEMENT. THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN 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.
XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1997-1 CERTIFICATE
NO. Trust Certificate
------------ Principal Balance $
---------------
Fractional Interest %
-------
THIS CERTIFIES THAT ___________ is the registered owner of equity $________
nonassessable, fully-paid, fractional undivided interest in the Xxxxxx Equipment
Asset Receivables Trust 1997-1 (the "Trust") formed by Xxxxxx Funding
Corporation, a Delaware corporation (the "Trust Depositor").
The Trust was created pursuant to a Trust Agreement, dated as of August 1,
1997 (as amended and supplemented from time to time, the "Trust Agreement"),
among Xxxxxx Funding Corporation, as Trust Depositor (the "Trust Depositor"),
and Xxxxxx Financial Leasing, Inc., as a Seller (the "Seller") and
[______________], 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 August 1, 1997 (the "Sale and Servicing Agreement"),
among the Trust, Xxxxxx Funding Corporation, as depositor (the "Trust
Depositor"), Xxxxxx Financial, Inc. ("Xxxxxx Financial"), as Servicer (in such
capacity, the "Servicer") and [
], as Indenture Trustee (the "Indenture Trustee") or (iii) the Indenture, dated
as of August 1, 1997 (the "Indenture"), between the Trust and the Indenture
Trustee.
This Trust Certificate is the duly authorized Trust Certificate designated
as "[ ]% Xxxxxx Equipment Asset Receivables Backed Certificate" (the
"Trust Certificate"). Also issued under the Indenture are three classes of
notes designated as "[ ]% Xxxxxx Equipment Asset Receivables Backed
Notes, Class A" and "[ ]% Xxxxxx Equipment Asset Receivables Backed Notes,
Class B", and "[ ]% Xxxxxx Equipment Asset Receivables Backed Notes,
Class C" (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, (i) all the right, title and interest of
the Trust Depositor in and to the Contracts listed on the List of Contracts
delivered on the Closing Date (including, without limitation, all security
interests and all rights to receive payments which are collected pursuant
thereto on or after the Cutoff Date, including any liquidation proceeds
therefrom, but excluding any rights to receive payments which were collected
pursuant thereto prior to the Cutoff Date), (ii) all rights of the Trust
Depositor under any physical damage or other individual insurance policy (and
rights under a "forced placed" policy, if any) relating to any such Contract, an
Obligor or a piece of Equipment securing such Contract, (iii) all security
B-1
interests in each such Equipment, (iv) all documents contained in the related
Contract Files, (v) all rights (but not the obligations) of the Trust Depositor
under any related Equipment dealer agreements between dealers (i.e., the
originators of such Contracts) and the Trust Depositor, (vi) all rights of the
Trust Depositor in the Lockbox, the Lockbox Account and related Lockbox
Agreement to the extent they relate to such Contracts, (vii) all rights (but not
the obligations) of the Trust Depositor under the Transfer and Sale Agreement,
including but not limited to the Trust Depositor's rights under Article V
thereof, (viii) the remittances, deposits and payments made into the Trust
Accounts from time to time and amounts in the Trust Accounts from time to time
(and any investments of such amounts), and (ix) all proceeds and products of the
foregoing (the property in clauses (i)-(viii) above.
Under the Trust Agreement, there will be distributed on the fifteenth day
of each month or if such day is not a Business Day the next succeeding Business
Day commencing [ ], 1997 (each, a "Distribution Date"),
commencing on [ ], 1997 and ending no later than the Distribution
Date in [ ], 2003 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 any other Certificateholder, by acceptance of a Trust Certificate,
agrees to treat, and to take no action inconsistent with such treatment of, the
Trust Certificate for federal income tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the Trust
Depositor, or join in any institution against the Trust or the Trust Depositor
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificate, the Notes, the Trust Agreement or any of the other
Transaction Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or its Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Trust Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Trust Certificate will
be made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Trust Certificate
at the office or agency maintained for that purpose by the Owner Trustee in the
City of [_____].
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or any other Transaction Document or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-2
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an interest
in the Trust Depositor, Xxxxxx Financial, 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 Holder of the Trust Certificate and the holders of the Notes
evidencing not less than 66 2/3% of the Outstanding Amount of the Notes. Any
such consent by the Holder of this Trust Certificate shall be conclusive and
binding on such Holder and on all future Holders of this Trust Certificate and
of any Trust Certificate issued upon the transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent is made upon this
Trust Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holder of the Trust
Certificate.
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 [_____], accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar in
Chicago, Illinois executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon a new Trust Certificate evidencing the same
aggregate interest in the Trust will be issued to the designated transferee. The
Certificate Registrar appointed under the Trust Agreement is [ ].
Except as provided in the Trust Agreement, the Trust Certificate is
issuable only as a registered Trust Certificates without coupons. No service
charge will be made for any registration of transfer of such Trust Certificate,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Trust Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholder of
all amounts required to be paid to such holder pursuant to the Trust Agreement
and the Sale and Servicing Agreement and the deposition of all property held as
part of the Trust Estate. The Trust Depositor may at its option purchase the
Trust Estate at a price specified in the Sale and Servicing Agreement, and such
purchase of the Contracts and other property of the Trust will affect early
retirement of the Trust Certificate; however, such right of purchase is
exercisable only as of any Distribution Date on which the Pool Balance has
declined to less than 10% of the Pool Balance.
B-3
The Trust Certificate may not be acquired by a Benefit Plan. By accepting
and holding this Trust Certificate, the Holder hereof or, in the case of Book-
Entry Trust Certificate, by accepting a beneficial interest in this Trust
Certificate, the related Certificate Owner, shall be deemed to have represented
and warranted that it is not a Benefit Plan and is not acquiring this Trust
Certificate or an interest therein for the account of such an entity.
B-4
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: August __, 1997 XXXXXX EQUIPMENT ASSET RECEIVABLES TRUST 1997-1
By: [______________], not in its individual capacity
but or solely as Owner Trustee
By: -------------------------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This the Trust Certificate referred to in the within-mentioned Trust
Agreement.
[______________], [______________],
not in its individual capacity but solely not in its individual capacity but
as Owner Trustee or solely as Owner Trustee
By:
---------------------------, as
By: Authorized Signatory
-------------------------------
Authorized Signatory
By:
-------------------------------
Authorized Signatory
B-5
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.
Document Number: 0211615.03
B-6
