EXECUTION COPY
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of July 31, 1997
between
ARCADIA RECEIVABLES FINANCE CORP. II
and
WILMINGTON TRUST COMPANY
Owner Trustee
OLYMPIC AUTOMOBILE RECEIVABLES WAREHOUSE TRUST
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1. Definitions................................................. 1
Section 1.2. Usage of Terms.............................................. 3
Section 1.3. Section References.......................................... 4
Section 1.4. Action by or Consent of Certificateholders.................. 4
ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust........................................... 5
Section 2.2. Office...................................................... 5
Section 2.3. Purposes and Powers......................................... 5
Section 2.4. Appointment of Owner Trustee................................ 6
Section 2.5. Initial Capital Contribution of Trust Estate................ 6
Section 2.6. Declaration of Trust........................................ 6
Section 2.7. Liability of the Certificateholders......................... 6
Section 2.8. Title to Trust Property..................................... 7
Section 2.9. Situs of Trust.............................................. 7
Section 2.10. Representations and Warranties of the Depositor and the
General Partner............................................. 7
Section 2.11. Federal Income Tax Treatment................................ 9
Section 2.12. Covenants of the General Partner............................10
Section 2.13. Covenants of the Holders....................................11
ARTICLE III
THE CERTIFICATES
Section 3.1. Initial Ownership...........................................11
Section 3.2. The Certificates............................................12
Section 3.3. Authentication of Certificates..............................12
Section 3.4. Registration of Transfer and Exchange of Certificates.......12
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificates...........13
Section 3.6. Persons Deemed Owners.......................................14
Section 3.7. Maintenance of Office or Agency.............................14
Section 3.8. Appointment of Paying Agent.................................14
i
Page
----
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Restriction on Power of Certificateholder...................15
Section 4.2. Prior Notice to Certificateholders with Respect to
Certain Matters.............................................15
Section 4.3. Action by Certificateholders with Respect to Bankruptcy.....15
Section 4.4. Restrictions on Certificateholders' Power...................15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Trust Accounts..............................................16
Section 5.2. Application of Funds in Certificate Distribution Account....17
Section 5.3. Method of Payment...........................................20
Section 5.4. No Segregation of Monies; No Interest.......................20
Section 5.5. Accounting; Reports; Tax Returns............................20
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. General Authority...........................................21
Section 6.2. General Duties..............................................21
Section 6.3. Action upon Instruction.....................................22
Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions................................................23
Section 6.5. No Action Except under Specified Documents or Instructions..23
Section 6.6. Restrictions................................................23
Section 6.7. Administration Agreement....................................23
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. Acceptance of Trustee and Duties............................24
Section 7.2. Furnishing of Documents.....................................25
Section 7.3. Representations and Warranties..............................26
Section 7.4. Reliance; Advice of Counsel.................................26
Section 7.5. Not Acting in Individual Capacity...........................27
Section 7.6. Owner Trustee Not Liable for Certificates, Notes or
Receivables.................................................27
Section 7.7. Owner Trustee May Own Certificates and Notes................27
ii
Page
----
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. Owner Trustee's Fees and Expenses...........................28
Section 8.2. Indemnification.............................................28
Section 8.3. Non-recourse Obligations....................................28
ARTICLE IX
TERMINATION; RECAPITALIZATION
Section 9.1. Termination of the Trust....................................29
Section 9.2. Dissolution Events with respect to the General Partner......30
Section 9.3. Securitized Offering........................................31
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. Eligibility Requirements for Owner Trustee..................31
Section 10.2. Resignation or Removal of Owner Trustee.....................32
Section 10.3. Successor Owner Trustee.....................................32
Section 10.4. Merger or Consolidation of Owner Trustee....................33
Section 10.5. Appointment of Co-Trustee or Separate Trustee...............33
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Amendment...................................................35
Section 11.2. No Recourse.................................................36
Section 11.3. Governing Law...............................................36
Section 11.4. Severability of Provisions..................................36
Section 11.5. Certificates Nonassessable and Fully Paid...................37
Section 11.6. Third-Party Beneficiaries...................................37
Section 11.7. Counterparts................................................37
Section 11.8. Notices.....................................................37
EXHIBITS
Exhibit A -- Form of Certificate of Trust
Exhibit B -- Form of Certificate
iii
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 31, 1997,
(the "Trust Agreement"), is made between Arcadia Receivables Finance Corp. II, a
Delaware corporation (the "Seller") and Wilmington Trust Company, a Delaware
corporation, as Owner Trustee (in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. All terms defined in the Sale and
Servicing Agreement (as defined below) shall have the same meaning in this
Agreement. Whenever capitalized and used in this Agreement, the following words
and phrases, unless otherwise specified, shall have the following meanings:
ADMINISTRATION AGREEMENT: The Amended and Restated Administration
Agreement, dated as of July 31, 1997, between the Administrator and the Trust,
as the same may be amended and supplemented from time to time.
ADMINISTRATOR: Wilmington Trust Company, a Delaware corporation, or
any successor Administrator under the Administration Agreement.
AFL: Arcadia Financial Ltd., a Minnesota corporation, and its
successors in interest.
AGREEMENT OR "THIS AGREEMENT": This Trust Agreement, all amendments
and supplements thereto and all exhibits and schedules to any of the foregoing.
AUTHENTICATION AGENT: Wilmington Trust Company, or its successor in
interest, and any successor authentication agent appointed as provided in this
Agreement.
BUSINESS TRUST STATUTE: Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 et seq., as the same may be amended from time to time.
CERTIFICATE OR INVESTOR CERTIFICATE: A certificate executed by the
Owner Trustee evidencing a fractional undivided interest in the Trust,
substantially in the form of Exhibit B.
CERTIFICATE BALANCE: At any time, as to any Certificate, the
outstanding principal amount of that Certificate; as set forth in the records
maintained by the Trustee; and as to the Certificates as a whole, the sum of the
Certificate Balances for each outstanding Certificate.
1
CERTIFICATE DISTRIBUTION ACCOUNT: The account designated as the
Certificate Distribution Account in, and which is established and maintained
pursuant to, Section 5.1.
CERTIFICATE MAJORITY: The meaning assigned in Section 1.4.
CERTIFICATE OF TRUST: The Certificate of Trust in the form of Exhibit
A hereto filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
CERTIFICATE PURCHASE AGREEMENT: The Amended and Restated Certificate
Purchase Agreement, if any, among the Trust, AFL, the investors who execute the
signature pages thereto and Xxxxxx Guaranty Trust Company of New York, as agent
for such investors, evidencing the commitment of the Investors to purchase
Certificates,as the same may be amended and supplemented from time to time.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained and the registrar appointed pursuant to Section 3.4.
CERTIFICATEHOLDER OR HOLDER OR INVESTOR CERTIFICATEHOLDER: A Person
in whose name a Certificate is registered in the Certificate Register.
CODE: The Internal Revenue Code of 1986, as amended.
CORPORATE TRUST OFFICE: The principal office of the Owner Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the Closing Date is located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration; the telecopy number for the Corporate Trust Office on the date
of the execution of this Agreement is (000) 000-0000.
DEPOSITOR: The Seller in its capacity as depositor hereunder.
DISSOLUTION EVENT: With respect to the General Partner, means the
withdrawal or expulsion of such Person as General Partner of the Trust or the
termination or dissolution of such Person, or the occurrence of an Insolvency
Event with respect to such Person.
EFFECTIVENESS DATE: The meaning assigned in Section 1.5.
EXPENSES: The meaning assigned to such term in Section 8.2.
GENERAL PARTNER: Initially, the Seller, or any subsequent General
Partner as permitted by this Agreement.
INDEMNIFIED PARTIES: The meaning assigned to such term in
Section 8.2.
MAXIMUM CERTIFICATE BALANCE: $32,272,300.
NOTE OWNER: The meaning assigned to such term in the Indenture.
2
OWNER TRUSTEE: Wilmington Trust Company, or its successor in
interest, acting not individually but solely as trustee, and any successor
trustee appointed as provided in this Agreement.
PAYING AGENT: Any paying agent or co-paying agent appointed pursuant
to Section 3.8, which initially shall be Wilmington Trust Company.
RECORD DATE: With respect to any Distribution Date, the close of
business on the last Business Day immediately preceding such Distribution Date.
RELATED DOCUMENTS: The Sale and Servicing Agreement, the Indenture,
the Certificates, the Notes, the Purchase Agreement, each Transfer Agreement,
each Assignment Agreement, the Custodian Agreement, the Administration
Agreement, the Certificate Purchase Agreement and the Note Purchase Agreement.
The Related Documents executed by any party are referred to herein as "such
party's Related Documents," "its Related Documents" or by a similar expression.
SALE AND SERVICING AGREEMENT: The Amended and Restated Sale and
Servicing Agreement, dated as of July 31, 1997 among the Trust, the Seller, AFL,
in its individual capacity and as Servicer, and Norwest Bank Minnesota, National
Association, as Backup Servicer, as the same may be amended and supplemented
from time to time.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
SELLER: Arcadia Receivables Finance Corp. II, a Delaware corporation,
or its successor in interest.
TRUST: The trust created by this Agreement, the estate of which
consists of the Trust Property.
TRUST PROPERTY: The property and proceeds of every description
conveyed pursuant to Section 2.5 hereof and Section 2.1 of the Sale and
Servicing Agreement, together with the Trust Accounts (including all Eligible
Investments therein and all proceeds therefrom).
Section 1.2. USAGE OF TERMS. (a) With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation." To the extent that definitions are contained in this Agreement, or
in any such certificate or other document, such definitions shall control.
3
(b) The references to the Related Documents entered into in
connection with this Agreement shall be read to include, where appropriate, the
original (as amended and supplemented) agreement related to each such amended
and restated document.
Section 1.3. SECTION REFERENCES. All references to Articles,
Sections, paragraphs, subsections, exhibits and schedules shall be to such
portions of this Agreement unless otherwise specified.
Section 1.4. ACTION BY OR CONSENT OF CERTIFICATEHOLDERS.
(a) Except as expressly provided herein (i) any action that may be
taken by the Certificateholders under this Agreement may be taken by
Certificateholders holding Certificates that evidence a majority of the
Certificate Balance (a "Certificate Majority"), and (ii) any written notice
or consent of the Certificateholders delivered pursuant to this Agreement
shall be effective for such class if signed by Holders of Certificates
evidencing not less than a majority of the Certificate Balance.
(b) Whenever any provision of this Agreement refers to action to be
taken, or consented to, by Certificateholders, such provision shall be
deemed to refer to Certificateholders of record as of the Record Date
immediately preceding the date on which such action is to be taken, or
consent given, by Certificateholders. Solely for the purposes of any
action to be taken, or consented to, by the Certificateholders (including
for purposes of determining whether a Certificate Majority has approved any
action), any Certificate registered in the name of the General Partner, AFL
or any Affiliate thereof shall be deemed not to be outstanding, and the
Certificate Balance represented thereby shall not be taken into account in
determining whether the requisite percentage of the Certificate Balance
necessary to effect any such action or consent has been obtained; PROVIDED,
HOWEVER, that, solely for the purpose of determining whether the Owner
Trustee is entitled to rely upon any such action or consent, only
Certificates which the Owner Trustee knows to be so owned shall be so
disregarded.
SECTION 1.5 EFFECTIVENESS. (a) The "Effectiveness Date" of this
Agreement shall occur on the date on which the conditions set forth in this
Agreement shall have been satisfied or waived by both parties to this Agreement.
(b) This Agreement amends and restates the Original Trust Agreement
and on the Effectiveness Date, replaces the Trust Agreement without interruption
of the parties' performance thereunder.
4
ARTICLE II
CREATION OF TRUST
Section 2.1. CREATION OF TRUST. Pursuant to the Original Trust
Agreement there was formed a trust known as "Olympic Automobile Receivables
Warehouse Trust," in which name the Trust may conduct business, make and execute
contracts and other instruments and xxx and be sued.
Section 2.2. OFFICE. The office of the Trust has been and shall be
in care of the Owner Trustee at the Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.3. PURPOSES AND POWERS. The purpose of the Trust has been
and is, and the Trust shall have the power and authority, to engage in the
following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement and to sell the Notes and the Certificates; to
redeem Notes and Certificates in accordance with the terms and conditions
set forth herein and in the Indenture;
(ii) with the proceeds of the sale of the Notes and the Certificates,
to pay the organizational, start-up and transactional expenses of the Trust
and to pay the balance to the Seller from time to time pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Property to the Indenture Trustee pursuant to the Indenture for the
benefit of the Noteholders and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Property released from the Lien of, and
remitted to the Trust pursuant to, the Indenture; and, in connection with a
purchase of the Trust Property, to assign, grant, transfer, pledge,
mortgage and convey the Trust Property to such purchaser or purchasers and
upon receipt of proceeds from such sale release the Lien of the Indenture;
(iv) to enter into and perform its obligations under the Related
Documents to which it is to be a party;
(v) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vi) subject to compliance with the Related Documents, to engage in
such other activities as may be required in connection with conservation of
the Trust Property and the making of distributions to the
Certificateholders and the Noteholders.
5
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or expressly authorized by the terms of this Agreement or
the Related Documents.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE. The Depositor appointed
the Owner Trustee as trustee of the Trust effective as of the Initial Closing
Date, to have all the rights, powers and duties set forth herein, and the Owner
Trustee has accepted such appointment.
Section 2.5. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor sold, assigned, transferred, conveyed and set over to the Owner
Trustee, as of the Initial Closing Date, the sum of $10. The Owner Trustee
acknowledged receipt in trust from the Depositor, as of the Initial Closing
Date, of the foregoing contribution, which constituted the initial Trust
Property and was deposited in the Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.6. DECLARATION OF TRUST. The Owner Trustee declared as of
the Initial Closing Date and hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
use and benefit of the Holders, subject to the interests and rights in the Trust
Property granted to other Persons by the Related Documents. It is the intention
and agreement of the parties hereto that the Trust constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention and agreement
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership. None of the parties hereto shall make
the election provided in Treasury Regulation Section 301. 7701-3(c) to have the
Trust classified as an association taxable as a corporation. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Trust as a partnership for
such tax purposes. On the Initial Closing Date, the Owner Trustee filed the
Certificate of Trust required by Section 3810(a) of the Business Trust Statute
in the Office of the Secretary of State. Effective as of the Initial Closing
Date, the Owner Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust.
Section 2.7. LIABILITY OF THE CERTIFICATEHOLDERS.
(a) The General Partner shall be liable directly to indemnify each
injured party for all losses, claims, damages, liabilities and expenses of
the Trust, to the extent not paid out of the Trust Property, to the extent
that such Person would be liable if the Trust were a partnership under the
Delaware Revised Uniform Limited Partnership Act and such Person were a
general partner; PROVIDED, HOWEVER, that the General Partner shall not be
liable for any losses incurred by a Certificateholder in the capacity of an
investor in the Certificates or a Note Owner in the capacity of an investor
in the Notes; PROVIDED, FURTHER, that the General Partner shall not be
liable to
6
indemnify any injured party if such party has agreed that its recourse
against the Trust for any obligation or liability of the Trust to such
party shall be limited to the assets of the Trust. In addition, any third
party creditors of the Trust (other than in connection with the obligations
described in the provisos to the preceding sentence for which the General
Partner shall not be liable) shall be deemed third party beneficiaries of
this paragraph.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or
obligation of the Trust or by reason of any action taken by the parties to
this Agreement pursuant to any provisions of this Agreement or any Related
Document.
Section 2.8. TITLE TO TRUST PROPERTY.
(a) Legal title to all the Trust Property shall be vested at all times
in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Property to be vested
in a trustee or trustees, in which case title shall be deemed to be vested
in the Owner Trustee, a co-trustee and/or a separate trustee, as the case
may be.
(b) The Certificateholders shall not have legal title to any part of
the Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title or interest by any Certificateholder
of its ownership interest in the Trust Property shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
Section 2.9. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware.
The Trust shall not have any employees in any state other than Delaware;
PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit the Owner
Trustee, the Servicer or any agent of the Trust from having employees within or
without the State of Delaware. Payments will be received by the Trust only in
Delaware, and payments will be made by the Trust only from Delaware. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
Section 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AND THE
GENERAL PARTNER. On the Initial Closing Date each of the Depositor and the
General Partner made and by execution of this Agreement, each of the Depositor
and the General Partner makes the following representations and warranties with
respect to itself on which the Owner Trustee relied and relies in accepting the
Trust Property in trust and issuing the Certificates. These representations and
warranties shall be deemed to be repeated on each day on which Investor
Certificates are issued pursuant to Section 3.2.
7
(a) ORGANIZATION AND GOOD STANDING. It has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and as such
business is currently conducted and is proposed to be conducted pursuant to
this Agreement and the Related Documents.
(b) DUE QUALIFICATION. It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property, the conduct of its business and the performance of
its obligations under this Agreement and the Related Documents requires
such qualification.
(c) POWER AND AUTHORITY. It has the power and authority to execute
and deliver this Agreement and its Related Documents and to perform its
obligations pursuant thereto; and the execution, delivery and performance
of this Agreement and its Related Documents have been duly authorized by
all necessary corporate action.
(d) NO CONSENT REQUIRED. No consent, license, approval or
authorization or registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement and the Related
Documents, except for such as have been obtained, effected or made.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and its Related Documents and the fulfillment of its
obligations under this Agreement and its Related Documents shall not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, its certificate of incorporation or by-laws, or any indenture,
agreement, mortgage, deed of trust or other instrument to which it is a
party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, or
violate any law, order, rule or regulation applicable to it of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its
properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to its knowledge threatened against it before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over it or its properties (A) asserting
the invalidity of this Agreement or any of the Related Documents, (B)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any of the Related Documents, (C) seeking any determination or ruling that
might materially and adversely affect its performance of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Related Documents, or
8
(D) seeking to adversely affect the federal income tax or other federal,
state or local tax attributes of the Certificates.
Section 2.11. FEDERAL INCOME TAX TREATMENT. The Seller has
structured this Agreement and the Investor Certificates with the intention that
the Investor Certificates will qualify under applicable federal, state, local
and foreign tax law as indebtedness. The Seller, the Servicer, the General
Partner, and each Investor Certificateholder agree to treat and to take no
action inconsistent with the treatment of the Investor Certificates (or
beneficial interest therein) as indebtedness for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income. Each Investor Certificateholder, by acceptance of its
Certificate, and the General Partner, agree to be bound by the provisions of
this Section 2.11. Furthermore, subject to Section 5.5, the Trustee shall treat
the Trust as a security device only, and shall not file tax returns or obtain an
employer identification number on behalf of the Trust.
In the event that the Investor Certificates are deemed for federal income
tax purposes to represent an equity interest in the Trust, the Trust shall be
treated for federal income tax purposes as a partnership among the Holders of
such Investor Certificates and the Seller. In the event such a partnership is
deemed to exist, the net income of the Trust for any month as determined for
Federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated:
(a) among the Investor Certificateholders as of the first Record Date
following the end of such month, in proportion to their ownership of
principal amount of Investor Certificates on such date, an amount of net
income up to the Certificateholders' Interest Distributable Amount for such
month; and
(b) next, to the General Partner to the extent of any remaining net
income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in clause (b). Net
losses of the Trust, if any, for any month as determined for Federal income tax
purposes (and each item of income, gain, loss and deduction entering into the
computation thereof) shall be allocated to the General Partner to the extent it
is reasonably expected to bear the economic burden of such net losses, then net
losses shall be allocated among the Certificateholders as of the first Record
Date following the end of such month in proportion to their ownership of
principal amount of Certificates on such Record Date until the total amount of
losses allocated to those Certificateholders pursuant to this Section 2.11 plus
the total principal amount distributed to them equals the aggregate initial
principal balance of the Investor Certificates and any remaining net losses
shall be allocated to the General Partner. The General Partner is authorized to
modify the allocations in this paragraph if necessary for the allocations to
fairly reflect the economic income, gain or loss to the General Partner or the
Certificateholders in order to comply with the provisions of the Code and the
accompanying Treasury Regulations.
9
Section 2.12. COVENANTS OF THE GENERAL PARTNER. As of the Initial
Closing Date the General Partner agreed and covenanted and as of the Effective
Date the General Partner agrees and covenants for the benefit of each
Certificateholder and the Owner Trustee, during the term of this Agreement, and
to the fullest extent permitted by applicable law, that:
(a) it shall not except as specifically permitted by this Agreement
and with the prior written consent of Xxxxxx and the Certificateholders,
sell, transfer, assign, give or encumber by operation of law or otherwise
its general partnership interest in the Trust;
(b) it shall not create, incur or suffer to exist any indebtedness or
engage in any business, except, in each case, as permitted by its
certificate of incorporation and the Related Documents;
(c) it shall not, for any reason, institute proceedings for the Trust
to be adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Trust, or file a petition
seeking or consenting to reorganization or relief under any applicable
federal or state law relating to the bankruptcy of the Trust, or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Trust or a substantial part of the
property of the Trust or cause or permit the Trust to make any assignment
for the benefit of creditors, or admit in writing the inability of the
Trust to pay its debts generally as they become due, or declare or effect a
moratorium on the debt of the Trust or take any action in furtherance of
any such action;
(d) it shall obtain from each counterparty to each Related Document to
which it or the Trust is a party and each other agreement entered into on
or after the date hereof to which it or the Trust is a party, an agreement
by each such counterparty that prior to the occurrence of the event
specified in Section 9.1(e) such counterparty shall not institute against,
or join any other Person in instituting against, it or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United
States or any state of the United States; and
(e) it shall not, for any reason, withdraw or attempt to withdraw from
this Agreement, dissolve, institute proceedings for it to be adjudicated a
bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
it or a substantial part of its property, or make any assignment for the
benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or declare or effect a moratorium on its debt
or take any action in furtherance of any such action.
10
Section 2.13. COVENANTS OF THE HOLDERS. Each Holder by purchasing
its Certificate agrees:
(a) to be bound by the terms and conditions of its Certificate and of
this Agreement, including any supplements or amendments hereto and to
perform the obligations of a Certificateholder as set forth therein or
herein, in all respects as if it were a signatory hereto. This undertaking
is made for the benefit of the Trust, the Owner Trustee and all other
Certificateholders present and future.
(b) to treat and to take no action inconsistent with the treatment of
the Investor Certificates as indebtedness for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income. In the event the Investor Certificates are deemed for
federal income tax purposes to represent an equity interest in the Trust,
each Certificateholder hereby agrees to appoint the General Partner as such
Certificateholder's agent and attorney-in-fact to sign any federal income
tax information return filed on behalf of the Trust and agree that, if
requested by the Trust, it will sign such federal income tax information
return in its capacity as holder of an interest in the Trust. Each
Certificateholder also hereby agrees that in its tax returns it will not
take any position inconsistent with those taken in any tax returns filed by
the Trust.
(c) if such Certificateholder is other than an individual or other
entity holding its Certificate through a broker who reports securities
sales on Form 1099-B, to notify the Owner Trustee of any transfer by it of
a Certificate in a taxable sale or exchange, within 30 days of the date of
the transfer.
(d) until the completion of the events specified in Section 9.1(e),
not to, for any reason, institute proceedings for the Trust or a General
Partner to be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trust or a substantial part of its property,
or cause or permit the Trust to make any assignment for the benefit of its
creditors, or admit in writing its inability to pay its debts generally as
they become due, or declare or effect a moratorium on its debt or take any
action in furtherance of any such action.
ARTICLE III
THE CERTIFICATES
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.5 and until the issuance
of the Certificates, the Depositor was the sole beneficiary of the Trust.
11
Section 3.2. THE CERTIFICATES. Certificates shall be issued as
follows:
(a) Upon Depositor's demand, Investor Certificates with Certificate
Balances totalling up to the Maximum Certificate Balance shall be issued on
the Effectiveness Date to Persons designated by the Depositor to the Owner
Trustee.
(b) Following a Trust Property Liquidation Date and payment in full of
the Notes and Investor Certificates and any other expenses of the Trust,
the General Partner may instruct the Owner Trustee to pay to the General
Partner all or any portion of the funds remaining in the Collection
Account.
The Certificates shall be executed on behalf of the Owner Trustee by
manual or facsimile signature of any authorized signatory of the Owner Trustee
having such authority under the Owner Trustee's seal imprinted or otherwise
affixed thereon and attested on behalf of the Owner Trustee by the manual or
facsimile signature of any authorized signatory of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Owner Trustee shall be validly issued and entitled to the benefits of this
Agreement, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates.
The Investor Certificates shall be issued in initial denominations and in such
integral multiples as are necessary to comply with the terms of this Agreement
and of the Related Documents.
Section 3.3. AUTHENTICATION OF CERTIFICATES. Simultaneously with the
initial sale, assignment and transfer to the Trust of the Receivables and the
delivery to the Owner Trustee of the Receivables Files and the other Trust
Property pursuant to the Sale and Servicing Agreement, upon Depositor's order
(with no less than five Business Days prior notice) the Owner Trustee shall
cause Investor Certificates as described in Section 3.2(b), to be executed on
behalf of the Trust, authenticated and delivered to or upon the order of the
Depositor. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit B executed by the Owner Trustee or the Authentication Agent, by
manual or facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. Wilmington Trust Company is hereby initially appointed
Authentication Agent. All Certificates shall be dated the date of their
authentication.
Section 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.7, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Owner Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as provided in
this Agreement. Wilmington Trust Company is hereby initially appointed
Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as provided in this Agreement.
12
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.7, the Owner Trustee
shall execute, authenticate and deliver (or shall cause the Authentication
Agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of like Certificate Balance, dated the date of authentication
by the Owner Trustee or any authenticating agent. At the option of a
Holder, Certificates may be exchanged for other Certificates in authorized
denominations of a like Certificate Balance upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.7.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Owner
Trustee in accordance with its customary practice.
(d) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(e) Notwithstanding anything in this Agreement to the contrary, the
Investor Certificates shall be issued only in transactions which are not
required to be registered under the Securities Act of 1933, as amended, and
the Seller may prevent any transfer, participation or other disposition of
any interest in any Investor Certificate if the Seller, in its sole and
absolute discretion, determines that such transfer, participation or other
disposition, if effected, would cause the Trust to be treated as a publicly
traded partnership under Section 7704 of the Code or the Treasury
Regulations issued thereunder.
Section 3.5. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to the
Certificate Registrar and the Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Certificate Registrar or the Owner Trustee that such Certificate has been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute, authenticate and deliver (or the Authentication Agent shall
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Certificate
Balance. In connection with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Owner
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.5
13
shall constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 3.6. PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and any agent of the Owner Trustee or the Certificate Registrar may
treat the person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
5.2 and for all other purposes whatsoever, and neither the Owner Trustee, the
Certificate Registrar, nor any agent of the Owner Trustee or the Certificate
Registrar shall be affected by any notice to the contrary.
Section 3.7. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall maintain in Wilmington, Delaware, an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Related Documents may be served. The Owner Trustee
initially designates Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 as its principal corporate trust
office for such purposes. The Owner Trustee shall give prompt written notice to
the Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office of agency.
Section 3.8. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent
shall initially be Wilmington Trust Company, and any co-paying agent chosen by
Wilmington Trust Company and acceptable to the Owner Trustee. Wilmington Trust
Company shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee. In the event that Wilmington Trust Company shall
no longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee, and upon
removal of a Paying Agent, such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and
8.2 shall apply to the Owner Trustee also in its role as Paying Agent for so
long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed
14
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. RESTRICTION ON POWER OF CERTIFICATEHOLDER. No
Certificateholder shall have any right to vote or in any manner otherwise
control the operation and management of the Trust except as expressly provided
in this Agreement.
Section 4.2. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. The Owner Trustee shall not take any of the following actions
unless, at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action and
the Certificateholders shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or provided alternative direction:
(a) the election by the Trust to file an amendment to the Certificate
of Trust unless such amendment is required to be filed under the Business
Trust Statute or unless such amendment would not materially and adversely
affect the interests of the Certificateholders;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required unless (i)
such amendment would not materially and adversely affect the interests of
the Certificateholders or (ii) such amendment is made in connection with a
Securitized Offering in accordance with the final sentence of Section
11.1(a); or
(c) the amendment, change or modification of the Administration
Agreement, unless (i) such amendment would not materially and adversely
affect the interests of the Certificateholders or (ii) such amendment is
made in connection with a Securitized Offering in accordance with the final
sentence of Section 11.1(a).
Section 4.3. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.4. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement or any Related
Document, unless such Certificateholder previously shall have given to the Owner
Trustee a written notice of default and of the continuance thereof, as provided
in this Agreement and unless Certificateholders evidencing not less than 25% of
the
15
Certificate Balance represented by the Certificates shall have made written
request upon the Owner Trustee to institute such action, suit or proceeding in
its own name as Owner Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Owner
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit,
or proceeding, and during such 30-day period no request or waiver inconsistent
with such written request has been given to the Owner Trustee pursuant to and in
compliance with this Section or Section 6.3; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Owner Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 4.4, each and every Certificateholder and the Owner Trustee
shall be entitled to such relief as can be given either at law or in equity.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. TRUST ACCOUNTS.
(a) The Owner Trustee, for the benefit of the Certificateholders, has
established and shall maintain the Certificate Distribution Account in the
name of the Trust for the benefit of the Certificateholders. The
Certificate Distribution Account shall be an Eligible Account and initially
was and is a segregated trust account established with the Owner Trustee
and maintained with the Owner Trustee.
(b) The Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Certificate Distribution
Account and in all proceeds thereof. If, at any time, the Certificate
Distribution Account ceases to be an Eligible Account, the Owner Trustee
shall within 5 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Certificate Distribution Account as an Eligible Account and shall transfer
any cash and/or any investments to such new Certificate Distribution
Account.
(c) All amounts held in the Certificate Distribution Account shall, to
the extent permitted by applicable laws, rules and regulations, be
invested, by the Owner Trustee, in Eligible Investments that mature not
later than one Business Day prior to the Distribution Date for the Monthly
Period to which such amounts relate. Investments in Eligible Investments
shall be made in the name of the Trust, and such investments shall not be
sold or disposed of prior to their maturity. Any investment of funds in
the Trust Accounts shall be made in Eligible Investments held by a
16
financial institution in accordance with the following requirements: (a)
all Eligible Investments shall be held in an account with such financial
institution in the name of the Trustee, (b) with respect to securities held
in such account, such securities shall be (i) certificated securities (as
such term is used in N.Y.U.C.C. Section 8-313(d)(i)), securities deemed to
be certificated securities under applicable regulations of the United
States government, or uncertificated securities issued by an issuer
organized under the laws of the State of New York or the State of Delaware,
(ii) either (A) in the possession of such institution, (B) in the
possession of a clearing corporation (as such term is used in Minn. Stat
Section 336.8-313(g)) in the State of New York, registered in the name of
such clearing corporation or its nominee, not endorsed for collection or
surrender or any other purpose not involving transfer, not containing any
evidence of a right or interest inconsistent with the Trustee's security
interest therein, and held by such clearing corporation in an account of
such institution, (C), held in an account of such institution with the
Federal Reserve Bank of New York or the Federal Reserve Bank of
Minneapolis, or (D) in the case of uncertificated securities, issued in the
name of such institution, and (iii) identified, by book entry or otherwise,
as held for the account of, or pledged to, the Trustee on the records of
such institution, and such institution shall have sent the Trustee a
confirmation thereof, (c) with respect to repurchase obligations held in
such account, such repurchase obligations shall be identified by such
institution, by book entry or otherwise, as held for the account of, or
pledged to, the Trustee on the records of such institution, and the related
securities shall be held in accordance with the requirements of clause (b)
above, and (d) with respect to other Eligible Investments other than
securities and repurchase agreements, such Eligible Investments shall be
held in a manner acceptable to the Trustee. Subject to the other
provisions hereof, the Trustee shall have sole control over each such
investment and the income thereon, and any certificate or other instrument
evidencing any such investment, if any, shall be delivered directly to the
Trustee or its agent, together with each document of transfer, if any,
necessary to transfer title to such investment to the Trustee in a manner
which complies with this Section 5.1. All interest, dividends, gains upon
sale and other income from, or earnings on investment of funds in the
Certificate Distribution Account shall be distributed on the next
Distribution Date pursuant to Section 4.6 of the Sale and Servicing
Agreement. The Servicer shall deposit in the Certificate Distribution
Account an amount equal to any net loss on such investments immediately as
realized.
Section 5.2. APPLICATION OF FUNDS IN CERTIFICATE DISTRIBUTION
ACCOUNT.
(a) On each Distribution Date the Owner Trustee will, based on the
information contained in the Servicer's Certificate delivered on the
related Determination Date pursuant to Section 3.9(a) of the Sale and
Servicing Agreement, distribute to the Certificateholders, on a pro rata
basis, to the extent of the funds available, amounts deposited in the
Certificate Distribution Account pursuant to Section 4.6 of the Sale and
Servicing Agreement on such Distribution Date in the following order of
priority:
17
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, (x) an amount equal to the Certificateholders'
Percentage of any Principal Funding Excess Amount; (y) prior to the
Distribution Date on which the outstanding principal balance of the
Notes is reduced to zero, an amount equal to the Certificateholders'
Principal Distributable Amount and (z) on each Distribution Date
thereafter an amount equal to the Certificate Balance;
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement; and
(iv) any remaining amount will be paid to the General Partner.
(b) On the date on which a Securitized Offering occurs, the Owner
Trustee will, based on the information contained in the Servicer's
Certificate delivered with respect to such Securitized Offering pursuant to
Section 3.9(a) of the Sale and Servicing Agreement, distribute to the
Investor Certificateholders, on a pro rata basis, to the extent of the
funds available, amounts deposited in the Certificate Distribution Account
pursuant to Section 4.6 of the Sale and Servicing Agreement on such
Distribution Date in the following order of priority taking into account
any concurrent distribution made pursuant to Section 5.2(a):
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, an amount equal to the Certificate Balance;
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement; and
(iv) any remaining amount will be paid to the General Partner.
On such date, the Owner Trustee shall also, after making the distributions
referred to above, distribute to the General Partner such funds as shall be
called for in the agreements pursuant to which the Securitized Offering is
completed.
(c) On the Distribution Date (i) following the date on which amounts
received in respect of the Seller's or the Servicer's exercise of its
option to purchase the corpus of the Trust pursuant to Sections 9.1(a) or
(b) of the Sale and Servicing Agreement are deposited in the Certificate
Distribution Account, (ii) on which Insolvency Proceeds are deposited in
the Certificate Distribution Account pursuant to Section 9.1(c) of the Sale
and Servicing Agreement (or on the Distribution Date immediately
18
following such deposit if such proceeds are not deposited in the
Certificate Distribution Account on a Distribution Date), or (iii)
following the date on which the Indenture Trustee makes payments of money
or property in respect of liquidation of the Trust Property pursuant to
Section 5.06 of the Indenture and deposits funds received in connection
with such liquidation in the Certificate Distribution Account, in each case
based upon information contained in a Servicer's Certificate delivered
pursuant to Section 3.9(b) of the Sale and Servicing Agreement, the Owner
Trustee will distribute to the Certificateholders, on a pro rata basis,
such amounts taking into account any concurrent distribution made pursuant
to Section 5.2(a):
(i) first, an amount equal to the Certificateholders' Interest
Distributable Amount;
(ii) second, an amount equal to the Certificate Balance; and
(iii) third, any amounts due and owing to any Indemnified Party
(as such term is used in the Certificate Purchase Agreement) under
Section 11.01, Section 11.04 or Section 11.05 of the Certificate
Purchase Agreement.
(d) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement required pursuant to Section 4.9 of the
Sale and Servicing Agreement.
(e) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to
the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Certificateholder), the Owner Trustee may in its
sole discretion withhold such amounts in accordance with this paragraph
(e). In the event that a Certificateholder wishes to apply for a refund of
any such withholding tax, the Owner Trustee shall reasonably cooperate with
such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(f) Upon final liquidation of the Trust, by notice given to the Owner
Trustee by the Seller or the Servicer pursuant to Section 9.1 of the Sale
and Servicing Agreement, any funds remaining in the Certificate
Distribution Account after
19
distribution of all amounts specified in this Section 5.2 shall be
distributed to the General Partner.
Section 5.3. METHOD OF PAYMENT. Subject to Section 9.1(c) and
9.3(b), distributions required to be made to Certificateholders on any
Distribution Date shall be made to each Certificateholder of record on the
preceding Record Date by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, which such Certificateholder shall have designated to the Certificate
Registrar, with appropriate written wire transfer instructions, at least five
Business Days prior to such Distribution Date.
Section 5.4. NO SEGREGATION OF MONIES; NO INTEREST. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or by the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
Section 5.5. ACCOUNTING; REPORTS; TAX RETURNS.
(a) The Administrator has agreed pursuant to the Administration
Agreement that the Administrator shall (i) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (ii) deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations, such information
as may be required (including Form 1099 or Schedule K-1) to enable each
Certificateholder to prepare its Federal and state income tax returns,
(iii) if the Investor Certificates are deemed for federal income tax
purposes to represent an equity interest in the Trust, to file or cause to
be filed such tax returns relating to the Trust (including a partnership
information return, Form 1065), and direct the Owner Trustee to make such
elections as may from time to time be required or appropriate under any
applicable state or Federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for Federal
income tax purposes, (iv) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.2(c) with respect to
income or distributions to Certificateholders and (v) file or cause to be
filed all documents required to be filed by the Trust with the Securities
and Exchange Commission and otherwise take or cause to be taken all such
actions as are notified by the Servicer to the Administrator as being
required for the Trust's compliance with all applicable provisions of state
and federal securities laws.
(b) The Owner Trustee shall make all elections pursuant to this
Section 5.5 as directed in writing by the General Partner, with the consent
of Xxxxxx. The Owner Trustee shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect
to the Receivables. The Owner Trustee shall not make the election provided
under Section 754 of the Code.
20
(c) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust, unless applicable law requires a Certificateholder to
sign such documents, in which case such documents shall be signed by the
General Partner. In signing any tax return of the Trust, the Owner Trustee
shall rely entirely upon, and shall have no liability for, information or
calculations provided by the General Partner.
(d) The General Partner shall be the "tax matters partner" of the
Trust pursuant to the Code.
(e) None of the parties hereto shall make the election provided in
Treasury Regulation Section 301.7701-3(c) to have the Trust classified as
an association taxable as a corporation.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Related Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Related Documents to which the Trust is to be a party and
any amendment thereto (including any amendment entered into in connection with a
Securitized Offering in accordance with the final sentence of Section 11.1(a)
and any additional agreements called for by each such amendment), and on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver the
Notes in the aggregate maximum principal amount of $240,000,000. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Related Documents. The
Owner Trustee is further authorized, on behalf of the Trust, to enter into the
Administration Agreement, to appoint, with the consent of Xxxxxx, a successor
Administrator and to take from time to time such action as Xxxxxx recommends
with respect to the Related Documents so long as such actions are consistent
with the terms of the Related Documents.
Section 6.2. GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed with the consent of Xxxxxx) all of its
responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the Certificateholders,
subject to the Related Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the Related
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Related Document, and the Owner Trustee shall not be
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
21
Section 6.3. ACTION UPON INSTRUCTION.
(a) Subject to Article IV, the Certificate Majority shall have the
exclusive right to direct the actions of the Owner Trustee in the
management of the Trust, so long as such instructions are not inconsistent
with the express terms set forth herein or in any Related Document. The
Certificate Majority shall not instruct the Owner Trustee in a manner
inconsistent with this Agreement or the Related Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is contrary to the terms hereof or of any Related Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Related Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction received from the Certificate
Majority, the Owner Trustee shall not be liable on account of such action
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or
the Related Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such
action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Related Document or
any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that
this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction and, to the
extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received from a Certificate Majority,
the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Related Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
22
Section 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Property, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Trust is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for
preparing, monitoring or filing any financing or continuation statements in any
public office at any time or otherwise to perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to record this
Agreement or any Related Document; however, the Owner Trustee will from time to
time execute and deliver such financing or continuation statements as are
prepared by the Servicer and delivered to the Owner Trustee for its execution on
behalf of the Trust for the purpose of perfecting or maintaining the perfection
of such a security interest or lien or effecting such a recording. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense (and not
at the expense of the Trust), promptly take all action as may be necessary to
discharge any liens on any part of the Trust Property that are attributable to
claims against the Owner Trustee in its individual capacity that are not related
to the ownership or the administration of the Trust Property.
Section 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of, the Trust Property except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Related
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
Section 6.6. RESTRICTIONS. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
Section 6.7. ADMINISTRATION AGREEMENT.
(a) The Administrator is authorized to execute on behalf of the Trust
all documents, reports, filings, instruments, certificates and opinions as
it shall be the duty of the Trust to prepare, file or deliver pursuant to
the Related Documents. Upon written request, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant to the
terms of the Administration Agreement, the Owner Trustee may, and is hereby
authorized and empowered to, subject to obtaining the prior written consent
of Xxxxxx, appoint or
23
consent to the appointment of a successor Administrator pursuant to the
Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner Trustee
may, and is hereby authorized and empowered to, subject to obtaining the
prior written consent of Xxxxxx, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Owner Trustee shall promptly notify each Certificateholder of
any default by or misconduct of the Administrator under the Administration
Agreement of which the Owner Trustee has received written notice or of
which a Responsible Officer has actual knowledge.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. ACCEPTANCE OF TRUSTEE AND DUTIES. The Owner Trustee
accepted the trusts created by the Original Trust Agreement on the Initial
Closing Date and hereby agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all monies actually received by it constituting part of the
Trust Property upon the terms of the Related Documents and this Agreement. The
Owner Trustee shall not be answerable or accountable hereunder or under any
Related Document under any circumstances, except (i) for its own willful
misconduct or gross negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3, (iii) for liabilities
arising from the failure of the Owner Trustee to perform obligations expressly
undertaken by it in the last sentence of Section 6.4 hereof, (iv) for any
investments issued by the Owner Trustee or any branch or affiliate thereof in
its commercial capacity or (v) for taxes, fees or other charges on, based on or
measured by, any fees, commissions or compensation received by the Owner Trustee
in connection with any of the transactions contemplated by this Agreement or any
Related Document. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
instructions of the Certificate Majority;
(c) no provision of this Agreement or any Related Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Related Document
24
if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or any of the
Related Documents, including the principal of and interest on the
Certificates or the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or the General Partner or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Property or
for or in respect of the validity or sufficiency of the Related Documents,
other than the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to the Custodian, the Indenture Trustee, any Noteholder or to
any Certificateholder, other than as expressly provided for herein and in
the Related Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Custodian, the Indenture Trustee or
the Servicer under any of the Related Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Related Documents that are required
to be performed by the Administrator under the Administration Agreement,
the Custodian under the Custodian Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Related Document, at the request, order
or direction of the Certificate Majority, unless such Certificate Majority
has offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any
Related Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act.
Section 7.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Related Documents unless the Certificateholders have
previously received such items.
25
Section 7.3. REPRESENTATIONS AND WARRANTIES. As of the Initial
Closing Date, the Owner Trustee represented and warranted and as of the
Effectiveness Date the Owner Trustee hereby represents and warrants to the
Depositor and the Certificateholders that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority and all franchises, grants,
authorizations, consents, orders and approvals from all governmental
authorities necessary to execute, deliver and perform its obligations under
this Agreement and each Related Document to which the Trust is a party.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and each Related Document to
which the Trust is a party, and this Agreement and each Related Document
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any Federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound or
result in the creation or imposition of any lien, charge or encumbrance on
the Trust Property resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the Related
Documents.
Section 7.4. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to
any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president
or by the treasurer or other authorized officers of the relevant party, as
to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Related
26
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care
and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such
persons and not contrary to this Agreement or any Related Document.
Section 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided
in this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Related Document shall
look only to the Trust Property for payment or satisfaction thereof.
Section 7.6. OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES, NOTES OR
RECEIVABLES. The recitals contained herein and in the Certificates (other than
the signature and counter-signature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor (other than the signature or
countersignature of the Owner Trustee on the Notes), and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, of any
Related Document or of the Certificates (other than the signature and
counter-signature of the Owner Trustee on the Certificates) or the Notes (other
than the signature or counter-signature of the Owner Trustee on the Notes), or
of any Receivable or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Property or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable or any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Seller or the Servicer with
any warranty or representation made under any Related Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Indenture Trustee, the Custodian or the Servicer taken in the name of the
Owner Trustee.
Section 7.7. OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositors, the Seller, the
Indenture Trustee and
27
the Servicer in banking or other transactions with the same rights as it would
have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between AFL and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by AFL for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder; PROVIDED, HOWEVER, that the Owner Trustee shall
only be entitled to reimbursement for expenses hereunder to the extent such
expenses (i) are fees of outside counsel engaged by the Owner Trustee in respect
of the performance of its obligations hereunder or (ii) relate to the
performance of its obligations pursuant to Section 5.5 hereof.
Section 8.2. INDEMNIFICATION. AFL shall be liable as primary obligor
for, and shall indemnify the Owner Trustee in its individual capacity and its
successors, assigns, agents and servants, and any co-trustee (including Xxxxxxx
X. Xxxx) (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Related Documents, the Trust Property, the
administration of the Trust Property or the action or inaction of the Owner
Trustee hereunder, except only that AFL shall not be liable for or required to
indemnify the Owner Trustee from and against Expenses arising or resulting from
any of the matters described in the third sentence of Section 7.1. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement.
Section 8.3. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in
this Agreement or any Related Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that all
obligations of the Trust to the Owner Trustee individually or as Owner Trustee
for the Trust shall be recourse to the Trust Property only and specifically
shall not be recourse to the assets of any Certificateholder.
28
ARTICLE IX
TERMINATION; RECAPITALIZATION
Section 9.1. TERMINATION OF THE TRUST.
(a) The respective obligations and responsibilities of the Depositor,
the General Partner and the Owner Trustee created by this Agreement and the
Trust created by this Agreement shall terminate upon the latest of (i) the
maturity or other liquidation of the last Receivable (including the
purchase as of any Accounting Date by the Seller or the Servicer at its
option of the corpus of the Trust as described in Section 9.1(a) and, if so
specified by the Seller in writing, Section 9.1(b) of the Sale and
Servicing Agreement) and the subsequent distribution of amounts in respect
of such Receivables as provided in the Related Documents, (ii) the payment
to Certificateholders of all amounts required to be paid to them pursuant
to this Agreement (other than in connection with a Securitized Offering and
an optional purchase under Section 9.1(b) of the Sale and Servicing
Agreement where the Seller has not indicated that the Trust will
terminate), or (iii) at the time provided in Section 9.2. In any case,
there shall be delivered to the Owner Trustee, the Indenture Trustee and
the Rating Agencies an Opinion of Counsel that all applicable preference
periods under federal, state and local bankruptcy, insolvency and similar
laws have expired with respect to the payments pursuant to clause (ii);
PROVIDED, HOWEVER, that in no event shall the trust created by this
Agreement continue beyond the expiration of 21 years from the death of the
last survivor of the descendants living on the date of this Agreement of
Xxxx Xxxxxxx of the Commonwealth of Massachusetts; and PROVIDED, FURTHER,
that the rights to indemnification under Section 8.2 shall survive the
termination of the Trust. The Servicer shall promptly notify the Owner
Trustee of any prospective termination pursuant to this Section 9.1.
Except as provided in Section 9.2, the bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of any Certificateholder or the General Partner, shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's or the General Partner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for
a partition or winding up of all or any part of the Trust or Trust Property
nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Promptly upon receipt of notice of final distribution on the
Certificates from the Seller or the Servicer given pursuant to Section 9.1
of the Sale and Servicing Agreement, the Owner Trustee shall mail written
notice to the Certificateholders specifying (i) the Distribution Date upon
which final payment of the Certificates shall be made upon presentation and
surrender of Certificates at the office of the Paying Agent therein
specified, (ii) the amount of any such final payment, and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the
29
office of the Paying Agent therein specified. The Owner Trustee shall give
such notice to the Certificate Registrar at the time such notice is given
to Certificateholders. In the event such notice is given, the Indenture
Trustee shall make deposits into the Certificate Distribution Account in
accordance with Section 4.6 of the Sale and Servicing Agreement, or, in the
case of an optional purchase of Receivables pursuant to Section 9.1 of the
Sale and Servicing Agreement, shall deposit the amount specified in Section
9.1 of the Sale and Servicing Agreement. Upon presentation and surrender
of the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant
to Section 5.2.
(d) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Owner Trustee
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second
notice all the Certificates shall not have been surrendered for
cancellation, the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that remain subject
to this Agreement. Any funds which are payable to Certificateholders
remaining in the Trust after exhaustion of such remedies shall be
distributed by the Owner Trustee to The United Way (but only upon
termination of this Agreement), and the Certificateholders, by acceptance
of their Certificates, hereby waive any rights with respect to such funds.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
Section 9.2. DISSOLUTION EVENTS WITH RESPECT TO THE GENERAL PARTNER.
In the event that a Dissolution Event shall occur with respect to the General
Partner, the Trust will terminate unless, within 90 days after the occurrence of
the Dissolution Event with respect to the General Partner (x) a Certificate
Majority agrees in writing to continue the business of the Trust and to the
appointment of a Person to hold the partnership interest in the Trust held by
the General Partner and to assume the liabilities incident thereto and (y) the
Owner Trustee requests and obtains an opinion of counsel to the effect that a
failure to terminate the Trust upon the occurrence of such Dissolution Event
(and the transfer, if any, of the partnership interest in the Trust held by the
General Partner) will not cause the Trust to be treated as an association (or
publicly traded partnership) taxable as a corporation for federal income tax
purposes. Promptly after the occurrence of the events referred to in the
preceding sentence, (i) the General Partner shall give the Indenture Trustee and
the Owner Trustee written notice of the occurrence of such event, (ii) the Owner
Trustee shall, upon the receipt of such written notice, give prompt written
notice to the Certificateholders and the Indenture Trustee of the occurrence of
such event and (iii) the Indenture Trustee shall, upon
30
receipt of written notice of the occurrence of such event from the Owner Trustee
or the Seller, give prompt written notice to the Noteholders of the occurrence
of such event; PROVIDED, HOWEVER, that any failure to give a notice required by
this sentence shall not prevent or delay, in any manner, a termination of the
Trust pursuant to the first sentence of this Section 9.2. Upon a termination
pursuant to this Section, the Owner Trustee shall direct the Indenture Trustee
to sell the assets of the Trust (other than the Trust Accounts) at one or more
private or public sales conducted in any manner permitted by law. The proceeds
of such a sale of the assets of the Trust shall be distributed as provided in
Section 9.1(c) of the Sale and Servicing Agreement.
Section 9.3. SECURITIZED OFFERING.
(a) The Certificates shall be subject to redemption, upon not less
than ten days prior notice from the General Partner to the Owner Trustee,
in connection with a Securitized Offering, PROVIDED that funds sufficient
to repay the Certificate Balance of the Investor Certificates and all
accrued interest on the Certificates are deposited in the Certificate
Distribution Account on or prior to the date of such Securitized Offering
and distributed to the Certificateholders in accordance with Section
5.2(b).
(b) Promptly upon receipt of notice of a Securitized Offering from the
General Partner, the Owner Trustee shall notify the Certificateholders
specifying (i) the date upon which final payment of the Certificates shall
be made upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified, (ii) the amount of any such final
payment, and (iii) that the Record Date otherwise applicable to any
concurrent Distribution Date is not applicable, payments being made only
(unless such condition is waived by the General Partner) upon presentation
and surrender of the Certificates at the office of the Paying Agent therein
specified. Upon presentation and surrender of the Certificates (or without
presentation and surrender, if waived by the General Partner), the Paying
Agent shall cause to be distributed to Certificateholders amounts
distributable in connection with such Securitized Offering pursuant to
Section 5.2. Following any such distribution in connection with a
Securitized Offering, each Investor Certificateholder that has not
presented and surrendered its Certificate as described above shall do so
promptly, and the Investor Certificates shall be of no further force and
effect, whether or not so presented and surrendered.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; and (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or BBB by Standard & Poor's. If such corporation shall
31
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
Section 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the General Partner and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving such
notice of resignation, the General Partner shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 10.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the General Partner or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the General Partner, with the consent of
Xxxxxx may remove the Owner Trustee. If the General Partner shall remove the
Owner Trustee under the authority of the immediately preceding sentence, the
General Partner shall promptly appoint a successor Owner Trustee meeting the
qualification requirements of Section 10.1 by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and payment of all fees owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Owner Trustee have been paid and until acceptance
of appointment by the successor Owner Trustee pursuant to Section 10.3. The
General Partner shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
Section 10.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
General Partner and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and
32
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the General Partner and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the General Partner shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Indenture Trustee, the Noteholders
and the Rating Agencies. If the General Partner shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the General Partner.
Section 10.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Property, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.1.
33
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust Property or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
34
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. AMENDMENT.
(a) This Agreement may be amended by the Depositor, the General
Partner and the Owner Trustee, but without the consent of any of the
Investor Certificateholders or Noteholders, (i) to cure any ambiguity, or
(ii) to correct, supplement or modify any provisions in this Agreement;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder or Noteholder. In addition, this Agreement and any
Related Document may be amended by the Depositor, the General Partner and
the Owner Trustee (or, in the case of a Related Document, the parties
thereto), but without the consent of any of the Investor
Certificateholders, in connection with any Securitized Offering, so long as
it is a condition precedent to the effectiveness of such amendment that the
Certificate Balance and all interest accrued on the Certificates be paid in
full and that any commitment to purchase additional Certificates or Notes
under the Certificate Purchase Agreement or the Note Purchase Agreement,
respectively, has been terminated.
(b) This Agreement may also be amended from time to time by the
Depositor, the General Partner and the Owner Trustee with the consent of a
Certificate Majority and, if such amendment materially and adversely
affects the interests of Noteholders, the consent of a Note Majority (which
consent of any Holder of a Certificate or Note given pursuant to this
Section or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such
Investor Certificate or Note and of any Investor Certificate or Note issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether
or not notation of such consent is made upon the Investor Certificate or
Note) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement, or of modifying in
any manner the rights of the Holders of Certificates or Notes; PROVIDED,
HOWEVER, that, no such amendment shall directly or indirectly (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing
of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate or Note or the Certificate Rate or
the Note Interest Rate or (b) reduce the aforesaid percentage required to
consent to any such amendment or any waiver hereunder, without the consent
of the Holders of all Certificates and Notes then outstanding.
(c) Prior to the execution of any such amendment or consent (other
than an amendment described in the final sentence of Section 11.1(a)), the
General Partner shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
35
(d) Promptly after the execution of any such amendment or consent
(other than an amendment described in the final sentence of Section
11.1(a)), the Owner Trustee shall furnish written notification of the
substance of such amendment or consent to each Certificateholder and the
Indenture Trustee unless such parties have previously received such
notification.
(e) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to Section 11.1(b) to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders and Noteholders
provided for in this Agreement) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe, including the
establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement (other
than an amendment described in the final sentence of Section 11.1(a)), the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
Section 11.2. NO RECOURSE. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the General Partner, the Servicer, the Owner Trustee,
the Indenture Trustee or any Affiliate of any of the foregoing and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the Related
Documents.
Section 11.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof and the obligations, rights and
remedies of the parties under this Agreement shall be determined in accordance
with such laws.
Section 11.4. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
36
Section 11.5. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not be personally liable for obligations of the Trust,
the fractional undivided interests in the Trust represented by the Certificates
shall be nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and Certificates upon execution thereof by the Owner Trustee
pursuant to Section 3.3 are and shall be deemed fully paid.
Section 11.6. THIRD-PARTY BENEFICIARIES. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Section 11.7. COUNTERPARTS. For the purpose of facilitating its
execution and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
Section 11.8. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the General Partner or the Depositor, at the
following address: 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, with copies to: Arcadia Financial Ltd., 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: President, (b) in the
case of the Owner Trustee, at the Corporate Trust Office and (c) in the case of
Xxxxxx, at the following address: 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000-0000, Attention: Asset Finance Group, or at such other address as shall
be designated by any such party in a written notice to the other parties.
Notwithstanding the foregoing, any notice required or permitted to be mailed to
a Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register, and any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
37
IN WITNESS WHEREOF, the Depositor, the General Partner and the Owner
Trustee have caused this Amended and Restated Trust Agreement to be duly
executed by their respective officers as of the day and year first above
written.
Arcadia Receivables Finance Corp. II
By /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP CFO
WILMINGTON TRUST COMPANY
By /s/ X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Financial Services Officer
Consented and Agreed:
ARCADIA FINANCIAL LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: EVP CFO
[Signature page to Amended and Restated Trust Agreement]
