AMENDED AND RESTATED
TRUST AGREEMENT
by and between
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
as Owner Trustee
Dated as of August 1, 2001
CIT XX - XX 2001-A
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.....................................................................................1
Section 1.01 Defined Terms Generally.....................................................................1
Section 1.02 Specific Defined Terms......................................................................1
Section 1.03 Usage of Terms..............................................................................4
Section 1.04 Section References..........................................................................4
Section 1.05 Accounting Terms............................................................................4
ARTICLE II ORGANIZATION AND ESTABLISHMENT OF TRUST.........................................................4
Section 2.01 Establishment of Trust; Name................................................................4
Section 2.02 Office......................................................................................5
Section 2.03 Purposes and Powers.........................................................................5
Section 2.04 Appointment of Owner Trustee................................................................6
Section 2.05 Organizational Expenses.....................................................................6
Section 2.06 Declaration of Trust........................................................................6
Section 2.07 Liability of Trust Depositor................................................................6
Section 2.08 Title to Trust Property.....................................................................6
Section 2.09 Situs of Trust..............................................................................7
Section 2.10 Representations and Warranties of the Trust Depositor.......................................7
Section 2.11 Federal Income Tax Treatment................................................................8
ARTICLE III EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN...........................................8
Section 3.01 Initial Ownership...........................................................................8
Section 3.02 The Equity Certificate......................................................................9
Section 3.03 Authentication and Delivery of Equity Certificate...........................................9
Section 3.04 Registration of Transfer and Exchange of the Equity Certificate.............................9
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate..............................10
Section 3.06 Persons Deemed Owners......................................................................10
Section 3.07 Access to List of Equity Certificateholder's Name and Addresses............................11
Section 3.08 Maintenance of Office or Agency............................................................11
Section 3.09 Ownership by Trust Depositor of Equity Certificate.........................................11
ARTICLE IV ACTIONS BY OWNER TRUSTEE.......................................................................11
Section 4.01 Prior Notice to Equity Certificateholder with Respect to Certain Matters...................11
Section 4.02 Action by Owner with Respect to Certain Matters............................................12
Section 4.03 Action by Owner with Respect to Bankruptcy.................................................12
Section 4.04 Restrictions on Owner's Power..............................................................12
ARTICLE V APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES...................................13
Section 5.01 [Reserved].................................................................................13
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Section 5.02 [Reserved].................................................................................13
Section 5.03 Reports....................................................................................13
Section 5.04 Taxes......................................................................................13
Section 5.05 Method of Payment..........................................................................13
Section 5.06 No Segregation of Moneys; No Interest......................................................13
Section 5.07 Accounting and Reports to the Equity Certificateholder, the Internal Revenue Service and
Others.....................................................................................14
Section 5.08 Signature on Returns; Tax Matters Partner..................................................14
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE..........................................................14
Section 6.01 General Authority..........................................................................14
Section 6.02 General Duties.............................................................................15
Section 6.03 Action Upon Instruction....................................................................15
Section 6.04 No Duties Except as Specified in This Agreement or in Instructions.........................16
Section 6.05 No Action Except Under Specified Documents or Instructions.................................16
Section 6.06 Restrictions...............................................................................16
Section 6.07 Administration Agreement...................................................................17
ARTICLE VII CONCERNING THE OWNER TRUSTEE...................................................................17
Section 7.01 Acceptance of Trusts and Duties............................................................17
Section 7.02 Furnishing of Documents....................................................................19
Section 7.03 Representations and Warranties.............................................................19
Section 7.04 Reliance; Advice of Counsel................................................................19
Section 7.05 Not Acting in Individual Capacity..........................................................20
Section 7.06 Owner Trustee Not Liable for Notes, Equity Certificate or Contracts........................20
Section 7.07 Owner Trustee May Own Notes................................................................21
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE..................................................................21
Section 8.01 Owner Trustee's Fees and Expenses..........................................................21
Section 8.02 Indemnification............................................................................21
Section 8.03 Non-recourse Obligations...................................................................22
ARTICLE IX TERMINATION OF TRUST...........................................................................22
Section 9.01 Termination of Trust.......................................................................22
Section 9.02 Dissolution upon Bankruptcy of Trust Depositor.............................................23
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.........................................24
Section 10.01 Eligibility Requirements for Owner Trustee.................................................24
Section 10.02 Resignation or Removal of Owner Trustee....................................................24
Section 10.03 Successor Owner Trustee....................................................................25
Section 10.04 Merger or Consolidation of Owner Trustee...................................................25
Section 10.05 Appointment of Co-Trustee or Separate Trustee..............................................25
ARTICLE XI MISCELLANEOUS..................................................................................27
Section 11.01 Supplements and Amendments.................................................................27
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Section 11.02 Limitations on Rights of Others............................................................28
Section 11.03 Notices....................................................................................28
Section 11.04 Severability of Provisions.................................................................29
Section 11.05 Counterparts...............................................................................29
Section 11.06 Successors and Assigns.....................................................................29
Section 11.07 No Petition................................................................................30
Section 11.08 No Recourse................................................................................30
Section 11.09 Headings...................................................................................30
Section 11.10 Governing Law..............................................................................30
Section 11.11 Certain Servicer Payment Obligations.......................................................30
Section 11.12 JURISDICTION...............................................................................31
Section 11.13 WAIVER OF JURY TRIAL.......................................................................31
EXHIBITS
Exhibit A - Section 3.01 Certificate......................................................................A-1
Exhibit B - Form of Equity Certificate....................................................................B-1
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of
August 1, 2001 is made by and between NCT Funding Company, L.L.C., a Delaware
limited liability company, as Trust Depositor (the "Trust Depositor"), and Chase
Manhattan Bank USA, National Association, as Owner Trustee.
Whereas, the parties hereto wish to amend and restate the
Trust Agreement dated as of April 30, 2001 (the "Original Trust Agreement").
Whereas, in connection herewith the Trust Depositor is willing
to assume certain obligations pursuant hereto, and
Whereas, in connection herewith the Trust Depositor is willing
to purchase the Equity Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree that the Original
Trust Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms Generally. Capitalized terms used
that are not otherwise specifically defined herein shall have the same meaning
given to such terms when used in the Pooling Agreement (as defined in Section
1.02 below).
Section 1.02 Specific Defined Terms. Whenever used in this
Agreement, the following words and phrases, unless otherwise specified or the
context otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration Agreement,
dated as of the date hereof, among the Trust, the Trust Depositor, the Indenture
Trustee, and CITEF, as Administrator.
"Administrator" has the meaning given such term in the
Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement,
as the same may be amended, supplemented or restated from time to time.
"Benefit Plan" means (i) an employee benefit plan (as such
term is defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described
in Section 4975(e)(1) of the Code or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in the cities of Wilmington, Delaware,
Baltimore, Maryland, Livingston, New Jersey, or New York, New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code 'SS'3801 et seq., as the same may be amended from
time to time.
"Certificate of Trust" means the Certificate of Trust filed
for the Trust with the Secretary of State on April 30, 2001.
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar (or any successor thereto) appointed
pursuant to Section 3.04.
"CFUSA" means CIT Financial USA, Inc., a Delaware corporation.
"CITEF" means The CIT Group/Equipment Financing, Inc., a
Delaware corporation.
"Closing Date" means September 14, 2001.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Certificate" means the trust certificate evidencing
the beneficial equity interest of the Owner in the Trust and Trust Assets,
substantially in the form of Exhibit B hereto.
"Equity Certificateholder" means the Person in whose name the
Equity Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Foreign Person" means any Person other than (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
organized in or under the laws of the United States or any political subdivision
thereof, (iii) an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or (iv) a trust whose administration is
subject to the primary supervision of a court within the United States and which
has one or more U.S. fiduciaries who have authority to control all substantial
decisions of the Trust.
"Holder" means a Noteholder or the Equity Certificateholder,
as applicable.
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"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.02.
"Indenture" means the Indenture dated as of the date of this
Agreement by and between the Trust and Allfirst Bank, as Indenture Trustee.
"Indenture Trustee Corporate Trust Office" means the office of
the Indenture Trustee at which its corporate trust business shall be
administered which initially shall be 00 Xxxxx Xxxxxxx Xxxxxx - XX 000-000,
Xxxxxxxxx, XX 00000.
"Note Depository Agreement" means the Agreement dated as of
the Closing Date among the Trust, the Indenture Trustee, the Administrator and
DTC, as the Clearing Agency, relating to the Notes, as the same may be amended
and supplemented from time to time.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and the Class B Notes in each case issued
pursuant to the Indenture.
"Noteholders" means each Person in whose name a Note is
registered in the Note Register maintained by the Indenture Trustee.
"Owner" means the Equity Certificateholder.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the corporate
trust office of the Owner Trustee in the State of Delaware, which office
initially shall be located at 000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0/0xx Xxxxx,
Xxxxxx, Xxxxxxxx 00000, c/o XX Xxxxxx Chase, Attention: Institutional Trust
Services, or such other office at such other address in the State of Delaware as
the Owner Trustee may designate from time to time by notice to the Equity
Certificateholder, the Servicer, the Indenture Trustee and the Trust Depositor.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, limited liability company, joint stock
company, trust (including any beneficiary thereof) unincorporated organization
or government or any agency or political subdivision thereof.
"Pooling Agreement" means the Pooling and Servicing Agreement,
dated as of August 1, 2001, among the Trust, the Trust Depositor, and CFUSA, in
its individual capacity and The CIT Group/Equipment Financing, Inc. as Servicer
thereunder, as the same may be amended, supplemented or restated from time to
time.
"Required Holders" has the meaning given such term in the
Pooling Agreement.
"Secretary of State" means the Secretary of State of the State
of Delaware.
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"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust continued and governed by this
Agreement, the estate of which consists of the Trust Assets.
"Trust Assets" or "Trust Estate" means all right, title and
interest of the Trust in and to the property, proceeds and rights assigned to
the Trust pursuant to Article Two of the Pooling Agreement, all funds on deposit
from time to time in the Trust Accounts (including all investments therein and
proceeds and income therefrom), and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Pooling Agreement and the Administration Agreement, but not including any of
such property which has been released and reconveyed from the Trust in
accordance with and pursuant to the Pooling Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C. in its
capacity as Trust Depositor hereunder, and its successors.
Section 1.03 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing one gender include the other gender; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation".
Section 1.04 Section References. All section references,
unless otherwise indicated, shall be to Sections in this Agreement.
Section 1.05 Accounting Terms. All accounting terms used but
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01 Establishment of Trust; Name. The Trust shall be
known as "CIT XX - XX 2001-A", in which name the Owner Trustee may conduct the
activities of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
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Section 2.02 Office. The office of the Trust shall be in care
of the Owner Trustee at the Owner Trustee Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Noteholders and the Trust Depositor.
Section 2.03 Purposes and Powers.
(a) The sole purpose of the Trust is to manage the
Trust Assets, and collect and disburse the periodic income therefrom for the use
and benefit of the Equity Certificateholder, and in furtherance of such purpose
to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture
and the Equity Certificate pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes
and the Equity Certificate, to purchase the Contracts and other Trust Assets,
and to pay organizational, start-up and transactional expenses of the Trust (to
the extent not paid by the Trust Depositor or the Servicer or Administrator);
and to pay the balance to the Owner from time to time pursuant to the Pooling
Agreement;
(iii) to acquire, hold, manage, distribute,
dispose of, release or convey, to or at the direction of the Owner pursuant to
the Pooling Agreement, any portion of the Trust Assets in the manner described
in and pursuant to the Pooling Agreement;
(iv) to enter into, execute, deliver and perform
its obligations under the Transaction Documents to which it is or becomes a
party;
(v) to engage in those activities, including
entering into, executing, delivering, and performing agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vi) subject to compliance with the Transaction
Documents, to engage in such other activities as may be required in connection
with conservation of the Trust Assets and the making of distributions to the
Owner and the Noteholders.
(b) The Owner Trustee is hereby authorized to engage
in the foregoing activities on behalf of the Trust. The Trust shall not engage
in any activities other than in connection with the foregoing. Nothing contained
herein shall be deemed to authorize the Owner Trustee to engage in any business
operations or any activities other than those set forth in this Section 2.03.
Specifically, the Owner Trustee shall have no authority to engage in any
business operations, or acquire any assets other than those specifically
included in the Trust Assets, or otherwise vary the assets held by the Trust.
Similarly, the Owner Trustee shall have no discretionary duties other than
performing those ministerial acts set forth above necessary to accomplish the
purpose of this Trust as set forth in this Section 2.03.
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Section 2.04 Appointment of Owner Trustee. The Trust Depositor
appointed the Owner Trustee as trustee of the Trust effective as of the date of
the Original Trust Agreement, and as of the date hereof the Owner Trustee shall
have all the rights, powers and duties set forth herein and in the Business
Trust Statute, and the Owner Trustee hereby accepts such appointment.
Section 2.05 Organizational Expenses. The Trust Depositor
shall pay or provide for the payment of organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse or provide for the reimbursement of the Owner Trustee for any such
expenses paid by the Owner Trustee.
Section 2.06 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Assets in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Assets
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Owner, subject to the obligations of the Trust under the
Transaction Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute for the sole purpose
and to the extent necessary to accomplish the purposes of this Trust as set
forth in Section 2.03.
Section 2.07 Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust
Statute, the Trust Depositor shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the Owner
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general partner;
provided, however, that the Owner shall not be liable for any losses incurred by
the Equity Certificateholder in the capacity of an investor in the Equity
Certificate or a Noteholder in the capacity of an investor in the Notes; and
provided further, that the Trust Depositor shall not be so liable to any injured
party or other creditor if such party has agreed that its recourse against the
Trust for any obligation or liability of the Trust to such party shall be
limited to the assets of the Trust. In addition, any third party creditors of
the Trust (other than in connection with the obligations described in the
immediately preceding sentence for which the Trust Depositor shall not be
liable) shall be deemed third party beneficiaries of this paragraph.
(b) No Equity Certificateholder, other than to the
extent set forth in Section 2.07(a), shall have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
other Transaction Document.
Section 2.08 Title to Trust Property. Legal title to the Trust
Assets shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Assets to be vested in an owner trustee or
6
owner trustees, in which case title shall be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.09 Situs of Trust. The Trust will be located and
administered in the State of Delaware, the State of New York or the State of
Maryland. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware State of Delaware, the State of
New York or the State of Maryland. 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, the Trust Depositor, the
Administrator or any agent of the Trust from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware,
New York or Maryland and payments will be made by the Trust only from Delaware,
New York or Maryland. The only office of the Trust will be at the Owner Trustee
Corporate Trust Office.
Section 2.10 Representations and Warranties of the Trust
Depositor.
The Trust Depositor hereby represents and warrants to the
Owner Trustee, that:
(i) The Trust Depositor is duly organized and validly
existing as a limited liability company organized and existing, and in good
standing, under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business and had at all relevant times,
and has, power, authority and legal right to acquire and own the assets conveyed
and to be conveyed by it to the Trust from time to time.
(ii) The Trust Depositor is duly qualified to do
business as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires such
qualifications.
(iii) The Trust Depositor has the power and authority
to execute and deliver this Agreement and to carry out its terms; the Trust
Depositor has full power and authority to sell and assign the property to be
sold and assigned from time to time to and deposited with the Owner Trustee on
behalf of the Trust as part of the Trust Assets and has or will have duly
authorized such sale and assignment and deposit with the Owner Trustee on behalf
of the Trust by all necessary entity action; the execution, delivery and
performance of this Agreement have been duly authorized by the Trust Depositor
by all necessary entity action; and this Agreement constitutes the legal, valid
and binding obligation of the Trust Depositor, enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally and by
the availability of equitable remedies.
(iv) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of formation or limited liability company agreement of the Trust
Depositor, or any indenture, agreement or other instrument to which the Trust
Depositor is a
7
party or by which it is bound; nor result in the creation or imposition of any
Lien upon any of the properties of the Trust Depositor pursuant to the terms of
any such indenture, agreement or other instrument (other than pursuant to the
Transaction Documents); nor violate any law or any order, rule or regulation
applicable to the Trust Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Trust Depositor or its properties.
(v) All approvals, authorizations, consents, orders
or other actions of any Person or any governmental entity required in connection
with the execution and delivery of this Agreement and the fulfillment of the
terms hereof have been obtained.
(vi) There are no proceedings or investigations
pending, or to the Trust Depositor's knowledge threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Trust Depositor or its properties: (A) asserting
the invalidity of this Agreement or any of the other Transaction Documents, (B)
seeking to prevent the issuance of the Equity Certificate or the consummation of
any of the transactions contemplated by this Agreement or the other Transaction
Documents, (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Trust Depositor of its obligations
under, or the validity or enforceability of, this Agreement, the Equity
Certificate or any other Transaction Document, or (D) involving the Trust
Depositor and which might adversely affect the federal income tax or other
federal, state or local tax attributes of the Equity Certificate.
Section 2.11 Federal Income Tax Treatment. It is the intention
of the Trust Depositor that the Trust be disregarded as a separate entity for
federal income tax purposes pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The Equity
Certificate constitutes the sole equity interest in the Trust and must at all
times be held by either the Trust Depositor or its transferee as sole Owner. The
Trust Depositor agrees not to take any action inconsistent with such intended
federal income tax treatment. Because for federal income tax purposes the Trust
will be disregarded as a separate entity, Trust items of income, gain, loss and
deduction for any month as determined for federal income tax purposes shall be
allocated entirely to the Owner; provided, that this sentence shall not limit or
otherwise affect the provisions of the Transaction Documents pertaining to
distributions of Trust Assets or proceeds thereof to Persons other than the
Trust Depositor.
ARTICLE III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01 Initial Ownership.
(a) Upon the formation of the Trust and until the
issuance of the Equity Certificate, the Trust Depositor shall be the sole
beneficiary of the Trust. The Equity Certificate must at all times be held by
either the Trust Depositor or its transferee (to the extent permitted under
Section 3.01(b)) as sole owner.
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(b) No transfer of the Equity Certificate shall be
made unless such transfer is made in a transaction which does not require
registration or qualification under the Securities Act or qualification under
any state securities or "Blue Sky" laws. Neither the Owner Trustee nor the
Certificate Registrar shall effect the registration of any transfer of the
Equity Certificate unless, prior to such transfer the Owner Trustee shall have
received (i) a Tax Opinion, and (ii) a certificate from the proposed transferee
substantially in the form of Exhibit A hereto, certifying that (A) following
such transfer, there would be no more than one holder of the Equity Certificate
and the holder of the Equity Certificate would not be a Foreign Person, a
partnership, Subchapter S corporation or grantor trust and (B) such transfer
does not violate any state securities or Blue Sky laws or the Securities Act.
Section 3.02 The Equity Certificate.
(a) On the Closing Date, the Equity Certificate shall
be issued to the Trust Depositor, substantially in the form of Exhibit B hereto.
Upon receipt of a written order by the Owner Trustee from the Trust Depositor to
execute and authenticate the Equity Certificate, the Equity Certificate shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and, when so executed
and authenticated pursuant to Section 3.03, shall be deemed to have been validly
issued and shall be entitled to the benefits of this Agreement. The Equity
Certificate bearing the manual or facsimile signature of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificate or did
not hold such offices at the date of the authentication and delivery of the
Equity Certificate. The Equity Certificate shall be dated the date of its
authentication.
Section 3.03 Authentication and Delivery of Equity
Certificate. The Equity Certificate shall not entitle its holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear on
such Equity Certificate a certificate of authentication substantially in the
form set forth in Exhibit B executed by the Owner Trustee or by the Indenture
Trustee as its authenticating agent, by manual signature; such authentication
shall constitute conclusive evidence that the Equity Certificate shall have been
duly authenticated and delivered hereunder.
Section 3.04 Registration of Transfer and Exchange of the
Equity Certificate.
(a) The Certificate Registrar shall maintain or cause
to be maintained, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, it shall provide for the registration of the Equity Certificate and
of transfers and exchanges of the Equity Certificate as provided in this
Agreement. The Indenture Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Equity Certificate and transfers
and exchanges of the Equity Certificate as provided in this Agreement. In the
event that the Indenture Trustee notifies the Servicer that it is unable to act
as Certificate Registrar, the Servicer shall appoint another bank or trust
company
9
agreeing to act in accordance with the provisions of this Agreement applicable
to it, and otherwise acceptable to the Owner Trustee, to act as successor
Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of
the Equity Certificate otherwise permitted to be transferred in accordance
herewith at the office or agency maintained pursuant to Section 3.08, the Owner
Trustee shall (subject to Section 3.01(b)) execute, authenticate and deliver (or
shall cause its authenticating agent to authenticate and deliver), in the name
of the designated transferee, one new Equity Certificate.
(c) Every Equity Certificate presented or surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any
registration of transfer or exchange of the Equity Certificate, but the Owner
Trustee or Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer of the Equity Certificate.
(e) All Equity Certificates surrendered for
registration of transfer or exchange shall be canceled and subsequently
destroyed by the Owner Trustee or Certificate Registrar in accordance with its
customary practice.
(f) The Indenture Trustee shall be the Paying Agent
for the Equity Certificate.
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity
Certificate. If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Equity Certificate, and (b) there is
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice that such Equity Certificate has been acquired by a bona fide
or protected purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee or its authenticating agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Equity Certificate, a replacement Equity Certificate of like tenor. In
connection with the issuance of any replacement Equity Certificate under this
Section, the Owner Trustee or Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the reasonable fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith. Any replacement Equity Certificate issued pursuant to this Section
shall constitute conclusive evidence of beneficial ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Equity
Certificate shall be found at any time.
Section 3.06 Persons Deemed Owners. Prior to due presentation
of an Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name the Equity Certificate is registered as
10
the owner of the Equity Certificate for all purposes whatsoever, and none of the
Owner Trustee, the Certificate Registrar or any of their respective agents shall
be affected by any notice of the contrary.
Section 3.07 Access to List of Equity Certificateholder's Name
and Addresses. The Owner Trustee or Certificate Registrar shall furnish or cause
to be furnished to the Servicer, the Indenture Trustee and the Trust Depositor
within 15 days after receipt by the Owner Trustee or Certificate Registrar of a
written request therefor from the Servicer, the Indenture Trustee or the Trust
Depositor, the name and address of the Equity Certificateholder as of the most
recent Record Date in such form as the Servicer, the Indenture Trustee or the
Trust Depositor may reasonably require. The Equity Certificateholder, by
receiving and holding the Equity Certificate, agrees that neither the Servicer,
the Trust Depositor nor the Owner Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the name
and address of the Equity Certificateholder hereunder, regardless of the source
from which such information was derived.
Section 3.08 Maintenance of Office or Agency. The Owner
Trustee shall maintain an office or offices or agency or agencies where an
Equity Certificate may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Equity Certificate and any Transaction Documents may be served. The Owner
Trustee initially designates the Indenture Trustee Corporate Trust Office as its
office for such purposes. The Owner Trustee shall give prompt written notice to
the Trust Depositor, the Servicer, the Administrator and the Equity
Certificateholder of any change in the location of the Certificate Register or
any such office or agency.
Section 3.09 Ownership by Trust Depositor of Equity
Certificate. The Trust Depositor shall on the Closing Date purchase from the
Trust the Equity Certificate.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Equity Certificateholder with
Respect to Certain Matters. Subject to the provisions and limitations of Section
4.04, with respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Equity Certificateholder in writing of the
proposed action, the Indenture Trustee shall have consented to such action in
the event any Notes are outstanding, and the Equity Certificateholder shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Equity Certificateholder has withheld consent or
provided alternative direction:
(a) the initiation of any material claim or lawsuit
by the Trust (except claims or lawsuits brought in connection with the
collection of Trust Assets) and the compromise of any material action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Trust Assets);
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(b) the election by the Trust to file an amendment to
the Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture or the Reserve Account Agreement in circumstances where the consent of
any Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture or the Reserve Account Agreement in circumstances where the consent of
any Noteholder is not required and such amendment materially and adversely
affects the interest of the Owner;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner or add any provision that would not materially and
adversely affect the interest of the Owner; or
(f) the appointment pursuant to the Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the assignment
by the Note Registrar, Paying Agent, Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this Agreement, as applicable.
Section 4.02 Action by Owner with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owner, to (a) remove
the Administrator pursuant to Section 8 of the Administration Agreement, (b)
appoint a successor Administrator pursuant to Section 8 of the Administration
Agreement, (c) remove the Servicer pursuant to Article VIII of the Pooling
Agreement, (d) except as otherwise expressly provided in the relevant
Transaction Documents, release or convey from the Trust any Trust Assets, (e)
initiate any claim, suit or proceeding by the Trust or compromise any claim,
suit or proceeding brought by or against the Trust, (f) authorize the merger or
consolidation of the Trust with or into any other business trust or entity
(other than in accordance with applicable restrictions or conditions thereon
contained in the relevant Transaction Document) or (g) amend the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute). Except to the extent otherwise provided in (d), (f) and (g) above, the
Owner Trustee shall take the actions referred to in the preceding sentence upon
(and only upon) written instructions signed by the Owner.
Section 4.03 Action by Owner with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is no longer Solvent.
Section 4.04 Restrictions on Owner's Power. Neither the
Administrator nor the Owner shall direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
other Transaction Documents, or would be contrary to the purpose of
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this Trust as set forth in Section 2.03, nor shall the Owner Trustee be
obligated to follow any such direction, if given, or to determine whether any
such direction violates this Section 4.04.
ARTICLE V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 [Reserved].
Section 5.02 [Reserved].
Section 5.03 Reports. On each Payment Date, the Owner Trustee
shall send or cause to be sent to the Equity Certificateholder the statement or
statements received by the Owner Trustee from the Servicer pursuant to Section
9.01 of the Pooling Agreement with respect to such Payment Date.
Section 5.04 Taxes. In the event that any withholding tax is
imposed on the Trust's payment (or allocation of income) to the Equity
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Equity Certificateholder in accordance with this Section. The Owner Trustee
is hereby authorized and directed to retain from amounts otherwise distributable
to the Equity Certificateholder sufficient funds for the payment of any tax that
is legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the
Equity Certificateholder shall be treated as cash distributed to such Equity
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section. In the event
that the Equity Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the Equity
Certificateholder in making such claim so long as the Equity Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
Section 5.05 Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the Equity Certificateholder on any Payment
Date shall be made to the Equity Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
the Equity Certificateholder at a bank or other entity having appropriate
facilities therefor, which the Equity Certificateholder shall have designated to
the Certificate Registrar, with appropriate written wire transfer instructions,
at least three Business Days prior to such Payment Date. In the absence of such
designation, such distributions shall be made by check mailed to the Equity
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.06 No Segregation of Moneys; No Interest. Moneys
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by
13
law, and may be deposited under such general conditions as may be prescribed by
law, and the Owner Trustee shall not be liable for any interest thereon.
Section 5.07 Accounting and Reports to the Equity
Certificateholder, the Internal Revenue Service and Others. The Administrator
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis and the accrual method of accounting, (b) deliver or cause
to be delivered to the Equity Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Form 1099 or Schedule K-1) to enable the Equity Certificateholder to
prepare its federal and state income tax returns, (c) file or cause to be filed
such tax returns relating to the Trust and make such elections as from time to
time may be required or appropriate under any applicable state or federal
statute or any rule or regulation thereunder so as to maintain the federal
income tax treatment for the Trust as set forth in Section 2.11, (d) cause such
tax returns to be signed in the manner required by law and (e) collect or cause
to be collected any withholding tax as described in and in accordance with
Section 5.04 with respect to income or distributions to the Equity
Certificateholder. The Trust shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect to
Contracts becoming part of the Contract Pool. If applicable, the Trust shall not
make the election provided under Section 754 or Section 761 of the Code.
Section 5.08 Signature on Returns; Tax Matters Partner.
(a) The Owner shall sign on behalf of the Trust the
tax returns of the Trust, if any.
(b) If Subchapter K of the Code should be applicable
to the Trust, the Owner shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust from time to time the
Transaction Documents to which the Trust is or becomes a party and each
certificate and other document attached as an exhibit to or contemplated by such
Transaction Documents and any amendment or other agreement relating thereto (in
each case, in such form as is furnished to the Owner Trustee from time to time
by or on behalf of the Trust Depositor or Equity Certificateholder or their
respective counsel), as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator directs or recommends in writing
with respect to the Transaction Documents.
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Section 6.02 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such other agents as shall be appointed) all of its responsibilities pursuant to
the terms of this Agreement and the Transaction Documents to which the Trust is
a party and to administer the Trust in the interest of the Equity
Certificateholder, subject to the Transaction Documents and in accordance with
the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the other Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee or the Trust hereunder or under any
such Transaction Document, and the Owner Trustee shall not be held liable for
the default or failure of the Administrator to carry out its obligations under
the Administration Agreement.
Section 6.03 Action Upon Instruction.
(a) Subject to Article IV, and in all events subject
to the terms of the applicable Transaction Documents, the Equity
Certificateholder may by written instruction direct the Owner Trustee in the
management of the Trust.
(b) The Owner Trustee shall not be required to take
any action hereunder or under any other Transaction Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any other applicable
Transaction Document or is otherwise contrary to law. The Owner Trustee shall
not be liable for the failure to take any action pursuant to this paragraph (b).
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as it deems appropriate under the
circumstances) to the Equity Certificateholder requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in good
faith in accordance with any written instruction received from the Equity
Certificateholder, the Owner Trustee shall not be liable on account of such
action to any Person. Until the Owner Trustee shall have received the requested
instruction it may, but shall be under no duty to, take or refrain from taking
such action, as it shall deem to be in the best interests of the Equity
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as
to the applicability of any provision of this Agreement or any other Transaction
Document or believes any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as it deems appropriate under the circumstances)
to the Equity Certificateholder requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received from the Equity Certificateholder, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. Until the Owner
15
Trustee shall have received the requested instruction it may, but shall be under
no duty to, take or refrain from taking such action, as it shall deem to be in
the best interests of the Equity Certificateholder, and shall have no liability
to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the
contrary, the Owner Trustee shall not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will (i) require the registration with, licensing by or the taking of any other
similar action in respect of, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware by or with respect
to the Owner Trustee; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware being payable by
the Owner Trustee; or (iii) subject the Owner Trustee to personal jurisdiction
in any jurisdiction other than the State of Delaware for causes of action
arising from acts unrelated to the consummation of the transactions by the Owner
Trustee contemplated in this Agreement. In the event that the Owner Trustee has
determined that any action will result in the consequences set forth in clauses
(i)-(iii), the Administrator and the Owner Trustee shall appoint one or more
Persons to act as co-trustee pursuant to Section 10.05.
Section 6.04 No Duties Except as Specified in This Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Assets, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement (including Section 6.02) or any document or written
instruction received by the Owner Trustee pursuant to Article IV or Section
6.03; and no implied duties or obligations shall be read into this Agreement or
any other Transaction Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any securities law or tax law filing for the Trust or to record
this Agreement or any other Transaction Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Assets that
result from actions by, or claims against, the Owner Trustee, in its individual
capacity, that are not related to the ownership or the administration of the
Trust Assets or the transactions contemplated by the Transaction Documents.
Section 6.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Assets except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Transaction Documents,
or (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Article IV or Section 6.03.
Section 6.06 Restrictions. The Owner Trustee shall not take
any action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, to the actual
16
knowledge of a Responsible Officer of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal or state income tax
purposes. Neither the Administrator nor the Equity Certificateholder shall
direct the Owner Trustee to take actions that would violate the provisions of
this Section or any Transaction Document.
Section 6.07 Administration Agreement.
(a) The Administrator is authorized to execute on
behalf of the Trust all documents, reports, filings, instruments and opinions as
it shall be the duty of the Trust to prepare, file or deliver pursuant to the
Transaction Documents. Pursuant to the Administration Agreement, the Owner
Trustee shall execute and deliver to the Administrator a power of attorney
appointing the Administrator as agent and attorney-in-fact of the Trust and the
Owner Trustee to execute all such documents, reports, filings, instruments and
opinions.
(b) If the Administrator shall resign or be removed
pursuant to the terms of the Administration Agreement, the Owner Trustee may, at
the written direction of the Required Holders, appoint or consent to the
appointment of a successor Administrator pursuant to the Administration
Agreement.
(c) If the Administration Agreement is terminated,
the Owner Trustee may, and is hereby authorized and empowered to, at the written
direction of the Equity Certificateholder, appoint or consent to the appointment
of a Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Owner Trustee shall promptly notify the
Equity Certificateholder of any default by or misconduct of the Administrator
under the Administration Agreement of which the Owner Trustee has received
written notice or of which a Responsible Officer of the Owner Trustee has actual
knowledge.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 Acceptance of Trusts and Duties. The Owner
Trustee accepts the trust hereby created and agrees to perform its duties
hereunder with respect to such trust but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Assets upon the terms of the Transaction
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Transaction Document under any
circumstances, except that the foregoing limitation shall not limit the
liability, if any, that the Owner Trustee may have to the Equity
Certificateholder (i) for the Owner Trustee's own willful misconduct or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee in its individual
capacity, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of
17
Section 6.04 hereof, (iv) for any investments issued by the Owner Trustee or any
branch or affiliate thereof in its commercial capacity, or (v) for taxes, fees
or other charges on, based on or measured by, any fees, commissions or
compensation received by the Owner Trustee in connection with any of the
transactions contemplated by this Agreement or any other Transaction Document.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Owner
Trustee which did not result from negligence on the part of such Responsible
Officer;
(b) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator, the Required Holders or the Equity
Certificateholder;
(c) no provision of this Agreement or any other
Transaction Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of its rights
or powers hereunder or under any other Transaction Document if the Owner Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or
in respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Assets, or for or in respect
of the validity or sufficiency of any Transaction Documents, other than its
signature on behalf of the Trust on, and the certificate of authentication on,
the Equity Certificate, and the Owner Trustee shall in no event assume or incur
any liability, duty, or obligation to any Noteholder or, other than as expressly
provided for herein, to the Equity Certificateholder;
(f) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Trust Depositor, the Indenture
Trustee or the Servicer under any of the Transaction Documents or otherwise and
the Owner Trustee shall have no obligation or liability to perform or monitor
the performance of the obligations of the Trust under this Agreement or the
other Transaction Documents that are required to be performed by the
Administrator under this Agreement or the Administration Agreement, by the
Indenture Trustee under this Agreement or the Indenture or by the Servicer or
the Trust Depositor under any Transaction Document; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any other Transaction Document, at the request,
order or direction of the Equity Certificateholder, unless
18
the Equity Certificateholder has offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in any
other Transaction Document shall not be construed as a duty, and, except as
otherwise provided in the third sentence of Section 7.01, the Owner Trustee
shall not be answerable for the performance of any such act.
Section 7.02 Furnishing of Documents. The Owner Trustee shall
furnish to the Equity Certificateholder promptly upon receipt of a written
request therefor from an Equity Certificateholder, duplicates or copies of all
reports, notices, requests, demands, financial statements and any other
instruments furnished to the Owner Trustee under the Transaction Documents.
Section 7.03 Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Trust Depositor and the Equity
Certificateholder that:
(a) It is a national banking association duly
organized and validly existing in good standing under the laws of the United
States. It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement and to execute and deliver on
behalf of the Trust each other Transaction Document to which the Trust is a
party ("Related Documents").
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement and, on behalf of
the Trust, the Related Documents, and this Agreement and each Related Document
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver the same on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement or, on behalf of the Trust, any Related Document, nor the
consummation by it of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene any federal law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, or constitute any default
under its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Assets resulting from actions by or claims against the
Owner Trustee individually which are unrelated to this Agreement or the other
Transaction Documents.
Section 7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
reasonably believed by it to be genuine and believed by it to be signed by the
proper party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any party as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and
19
effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or any other authorized officer of the relevant party, as to such fact
or matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or other Transaction Documents, the Owner Trustee (i) may act directly
or through its agents or attorneys pursuant to agreements entered into by any of
them, and the Owner Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys as shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons, provided that such actions do not
violate the express terms of the Transaction Documents.
Section 7.05 Not Acting in Individual Capacity. Except as
otherwise expressly provided in this Article VII, in accepting the trusts hereby
created, Chase Manhattan Bank USA, National Association acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any other Transaction Document shall look only to the Trust
Assets for payment or satisfaction thereof.
Section 7.06 Owner Trustee Not Liable for Notes, Equity
Certificate or Contracts. The recitals contained herein and in the Equity
Certificate (other than the signature of the Owner Trustee on behalf of the
Trust on, and the certificate of authentication on, the Equity Certificate)
shall be taken as the statements of the Trust Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, any
other Transaction Document or the Equity Certificate (other than the signature
of the Owner Trustee and the certificate of authentication on the Equity
Certificates), or of any Contract or related documents or assets. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Contract, or the
perfection and priority of any security interest created by any Contract in any
related Equipment or the maintenance of any such perfection and priority, or for
or with respect to the sufficiency of the Trust Assets or the ability of such
Trust Assets to generate the payments to be distributed to the Equity
Certificateholder under this Agreement or the Noteholders under the Indenture,
including, without limitation, the existence, condition and ownership of any
Equipment; the existence and enforceability of any insurance thereon; the
existence and contents of any Contract or any computer or other record thereof;
the validity of the assignment of any Contract to the Trust or of any
intervening assignment; the completeness of any Contract; the performance or
enforcement of any Contract; the compliance by the Trust Depositor, CFUSA, the
Financing Originator or the Servicer with any warranty or representation made
under any Transaction Document or in any related document or the accuracy of any
such warranty or representation; or any action of the
20
Administrator, the Indenture Trustee or the Servicer or any subservicer taken in
the name of the Owner Trustee or the Trust.
Section 7.07 Owner Trustee May Own Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of Notes or
the Equity Certificate and may deal with the Trust Depositor, the Administrator,
the Indenture Trustee, Servicer and Affiliates thereof in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon between the Owner Trustee and the Servicer and
which shall be paid consistent with Section 5.19 of the Pooling Agreement.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust
Depositor or Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 8.02 Indemnification. The Trust Depositor shall be
liable as primary obligor for, and hereby indemnifies and holds harmless the
Owner Trustee (including in its individual capacity) and its successors, assigns
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, any other Transaction Document,
the Trust Assets, the administration of the Trust Assets or the action or
inaction of the Owner Trustee hereunder; provided, however, the Trust Depositor
shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.01; provided, further, that the liability of the
Trust Depositor under this Section shall be limited to the assets of the Trust
Depositor and any indemnity payments to be made pursuant to this Section shall
not be made from the Trust Assets and such indemnity payments, if unpaid, do not
constitute a general recourse claim against the Trust. The indemnities contained
in this Section shall survive the resignation, removal or termination of the
Owner Trustee or the termination of this Agreement or the Trust. In the event of
any claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Trust Depositor, which approval shall not be unreasonably
withheld. The indemnities contained in this Section shall be in addition to the
indemnities provided by the Servicer pursuant to the Pooling Agreement and the
Administrator pursuant to the Administration Agreement. The Trust Depositor
hereby agrees to advance to each Indemnified
21
Party Expenses (including reasonable fees and expenses of counsel) incurred by
such Indemnified Party, in defending any claim, demand, action, suit or
proceeding prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Trust Depositor of an undertaking, by or on
behalf of such Indemnified Party, to repay such amount if it shall be determined
that such Indemnified Party is not entitled to be indemnified therefor under
this Section 8.02. Notwithstanding any provision in this Agreement or any other
Transaction Document to the contrary, the obligations of the Trust Depositor
under this Section 8.02 shall survive the resignation or removal of any trustee
of the Trust, shall survive the termination of this Agreement and the
termination of the Trust.
Section 8.03 Non-recourse Obligations. Notwithstanding
anything in this Agreement or any other Transaction Document, but without
limiting the rights of the Owner Trustee or any other Indemnified Party under
Section 8.02, the Owner Trustee agrees in its individual capacity and in its
capacity as Owner Trustee for the Trust that all obligations of the Trust to the
Owner Trustee individually or as Owner Trustee for the Trust shall be recourse
to the Trust Assets only and specifically shall not be recourse to the assets of
the Equity Certificateholder.
ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust.
(a) The Trust created by this Agreement shall
dissolve upon the earliest of (i) the maturity or other liquidation of the last
Contract and related Transferred Assets, and the subsequent distribution of
amounts in respect of such Transferred Assets as provided in the Transaction
Documents, or (ii) the payment to the Noteholders and any other party entitled
thereto of the entire outstanding principal balance of the Notes, together with
accrued interest thereon to the date of repayment, and all other amounts
required to be paid to such parties or to which such parties are entitled
pursuant to this Agreement, the Pooling Agreement and the other Transaction
Documents, or (iii) at the time provided in Section 9.02 below; provided that
the rights to indemnification under Section 8.02 shall survive the dissolution
and termination of the Trust. The Servicer shall promptly notify the Owner
Trustee and the Administrative Agent of any prospective dissolution pursuant to
this Section 9.01. Except as provided in Section 9.02, the bankruptcy,
liquidation, dissolution, termination, resignation, expulsion, withdrawal, death
or incapacity of the Equity Certificateholder, shall not (x) operate to
terminate this Agreement or the Trust, nor (y) entitle such Equity
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Assets, nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither
the Trust Depositor nor the Equity Certificateholder shall be entitled to revoke
or terminate the Trust.
22
(c) Promptly upon receipt of notice of final
distribution on the Equity Certificate from the Servicer given pursuant to
Section 10.01 of the Pooling Agreement, the Owner Trustee shall mail written
notice to the Equity Certificateholder specifying (i) the Payment Date upon
which final payment of the Equity Certificate shall be made upon presentation
and surrender of Equity Certificate at the office of the Owner Trustee as
therein specified, (ii) the amount of any such final payment, and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Equity
Certificate at the office of the Owner Trustee therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Paying Agent at the time such notice is given to Equity
Certificateholder. Upon presentation and surrender of the Equity Certificate to
the Owner Trustee, the Owner Trustee shall direct the Indenture Trustee to
distribute to the Equity Certificateholder amounts distributable on such Payment
Date.
(d) In the event that the Equity Certificateholder
shall not surrender the Equity Certificate for cancellation within six months
after the date specified in the above-mentioned written notice, the Owner
Trustee shall give a second written notice to the Equity Certificateholder to
surrender the Equity Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
the Equity Certificate shall not have been surrendered for cancellation, the
Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the Equity Certificateholder concerning surrender
of the Equity Certificate, and the cost thereof shall be paid out of the funds
and other assets that remain subject to this Agreement. Any funds which are
payable to the Equity Certificateholder remaining in the Trust after exhaustion
of such remedies shall be distributed by the Owner Trustee to the Trust
Depositor.
(e) Upon the completion of winding up of the Trust in
accordance with the Business Trust Statute following its dissolution, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute, and upon the
effectiveness thereof, this Agreement and the Trust shall be terminated.
Section 9.02 Dissolution upon Bankruptcy of Trust Depositor.
In the event that an Insolvency Event shall occur with respect to the Trust
Depositor, then the Trust shall be dissolved in accordance with Section 9.01 90
days after the date of such event, unless within such 90 day period, the Owner
Trustee shall have received written instructions from the Required Holders not
to dissolve or terminate the Trust. Promptly after the occurrence of an
Insolvency Event with respect to the Trust Depositor (i) the Trust Depositor
shall give the Indenture Trustee and Owner Trustee written notice thereof, and
the Indenture Trustee shall give prompt written notice to the Noteholders
thereof. Upon a dissolution pursuant to this Section, the Administrator shall
request the Indenture Trustee promptly to sell the Trust Assets in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds of such a sale shall be treated, allocated and distributed as Available
Pledged Revenues in accordance with the Pooling Agreement.
23
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a Person (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers and subject to supervision or examination by federal or
state authorities; (iii) having (or having a parent which has) a combined
capital and surplus of at least $50,000,000; (iv) having (or having a parent
which has) a rating of at least Baa3 by Xxxxx'x and BBB by Standard & Poor's;
(v) which is not an Affiliate of the Issuer, the Trust Depositor, or the
Financing Originator, and (vi) does not offer or provide credit or credit
enhancement to the Issuer or the Trust Depositor. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
Section 10.02 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Trust Depositor and the Servicer
at least 30 days before the date specified in such instrument. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 10.01 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Trust Depositor shall promptly
appoint a successor Owner Trustee meeting the qualification requirements of
Section 10.01 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee together with payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until
24
all fees and expenses, including any indemnity payments, due to the outgoing
Owner Trustee have been paid and until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03.
Section 10.03 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Trust Depositor and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties, and obligations
of its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall, upon receipt of fees,
expenses and indemnity due and owing to the Owner Trustee deliver to the
successor Owner Trustee all documents and statements and monies held by it under
this Agreement; and the Trust Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice thereof to the
Equity Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Trust
Depositor.
Any successor Owner Trustee appointed pursuant to this Section
10.03 shall file an amendment to the Certificate of Trust with the Delaware
Secretary of State identifying the name and principal place of business of such
successor in the State of Delaware.
Section 10.04 Merger or Consolidation of Owner Trustee. Any
Person into which the Owner Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 10.01, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto. Notwithstanding anything contained herein to the contrary, the successor
Owner Trustee under this Section 10.04 shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State identifying the name
and principal place of business of such successor in the State of Delaware.
Section 10.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal
25
requirements of any jurisdiction in which any part of the Trust Assets may at
the time be located, the Owner Trustee shall have the power and, at the request
of the Trust Depositor, shall execute and deliver all instruments to appoint one
or more Persons approved by the Owner Trustee to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Assets, and to vest in such Person, in such capacity, such title to
the Trust Assets, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the Owner
Trustee may consider necessary or desirable. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.01 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.01.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties, and obligations
conferred or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties, and obligations (including the holding of title to the
Trust Assets or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other trustee under
this Agreement; and
(c) the Owner Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
26
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments.
(a) This Agreement may be amended by the Trust
Depositor and the Owner Trustee, without the consent of any of the Noteholders
or the Equity Certificateholder, to cure any ambiguity, to correct or supplement
any provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; provided, however, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Noteholder or the Equity Certificateholder.
(b) This Agreement may also be amended from time to
time by the Trust Depositor and the Owner Trustee, with the consent of the
Required Holders and the Equity Certificateholder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Equity Certificateholder; provided, however, that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, (i) collections of payments on Contracts or distributions that shall
be required to be made for the benefit of the Noteholders or the Equity
Certificateholder, or (ii) change in any manner the Noteholder or Equity
Certificateholder consent required for any such amendment, without the consent
of the Holders of all outstanding Notes and the Equity Certificates.
(c) Prior to the execution of any such amendment or
consent, the Trust Depositor shall furnish written notification of the substance
of such amendment or consent, together with a copy thereof, to the Indenture
Trustee and the Administrator.
(d) Promptly after the execution of any such
amendment or consent, the Owner Trustee shall furnish written notification of
the substance of such amendment or consent to the Equity Certificateholder and
the Rating Agencies. It shall not be necessary for the consent of the Equity
Certificateholder, Noteholders or the Indenture Trustee pursuant to this Section
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the Equity
Certificateholder provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by the
Equity Certificateholder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to
the Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(f) Prior to the execution of any amendment or
supplement to this Agreement or the Certificate of Trust, the Owner Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or
27
permitted by this Agreement and the other Transaction Documents, and that all
conditions precedent to the execution and delivery of such amendment as set
forth in the applicable Transaction Documents have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02 Limitations on Rights of Others. Except for
Section 2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee (individually and in its capacity as such), the Trust Depositor,
the Owner, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee, the Noteholders and the Equity Certificateholder, and nothing
in this Agreement (other than Section 2.07), whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Assets or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 11.03 Notices. All notices, demands, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
authorized officer of the party to which sent, or (d) on the date transmitted by
legible telefax transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the initial Servicer/Administrator:
The CIT Group/Equipment Financing, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
c/o The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
28
(iii) If to the Owner Trustee:
Chase Manhattan Bank USA, National Association
c/o XX Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxxx Xxxx
XXX0/0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
(iv) If to the Indenture Trustee:
Allfirst Bank
00 Xxxxx Xxxxxxx Xxxxxx
XX 000-000
Xxxxxxxxx, XX 00000
Attention: Corporate Xxxxx Xxxxxxxxxx,
XXX XX - XX 0000-X
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith
to each of the other parties hereto, designate any further or different address
to which subsequent notices shall be sent.
Section 11.04 Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the
Equity Certificate or the rights of the Equity Certificateholder thereof.
Section 11.05 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.06 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the Trust Depositor, and the Owner Trustee and their respective
successors and permitted assigns and the Owner and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent,
29
waiver or other instrument or action by the Owner shall bind the successors and
assigns of such Owner.
Section 11.07 No Petition.
(a) The Trust Depositor will not at any time
institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Equity Certificate, the Notes, this Agreement or any of the
other Transaction Documents existing from time to time.
(b) The Owner Trustee, by entering into this
Agreement, and the Equity Certificateholder, by accepting the Equity
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust Depositor or the Trust, or join in any institution
against the Trust Depositor or the Trust of, any bankruptcy proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Equity Certificate, the Notes, this Agreement or
any of the other Transaction Documents existing from time to time.
Section 11.08 No Recourse. The Equity Certificateholder by
accepting the Equity Certificate acknowledges that the Equity
Certificateholder's Equity Certificate represents beneficial interests in the
Trust only and does not represent interests in or obligations of the Trust
Depositor, the Servicer, the Financing Originator, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Equity Certificate or
the other applicable Transaction Documents.
Section 11.09 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.11 Certain Servicer Payment Obligations. It is
understood that the Servicer shall be responsible for payment of the
Administrator's compensation pursuant to Section 3 of the Administration
Agreement and shall reimburse the Administrator for all expenses and liabilities
of the Administrator incurred thereunder, consistent with the provisions of
Section 5.19 of the Pooling Agreement. The parties hereto agree that any such
payments, if unpaid, do not constitute a general recourse claim against the
Trust or the Trust Assets.
30
Section 11.12 JURISDICTION. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES
ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.
Section 11.13 WAIVER OF JURY TRIAL. EACH PARTY TO THIS
AGREEMENT WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF
OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND
RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
[signature page follows]
31
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Owner Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
32
EXHIBIT A
Section 3.01 Certificate
The undersigned, a duly authorized officer of
[________________________], hereby certifies, in connection with its purchase of
the Equity Certificate, that:
(A) following such acquisition, there is no more than one
holder of the Equity Certificate and it is not a Foreign Person, a partnership,
Subchapter S Corporation or grantor trust; and
(B) such acquisition does not violate any state securities
laws or Blue Sky laws or the Securities Act.
[Transferee]
By: ________________________________
Name:
Title:
A-1
EXHIBIT B
Form of Equity Certificate
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO NOTES TO THE EXTENT
DESCRIBED IN THE TRUST AGREEMENT AND THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN NCT
FUNDING COMPANY, L.L.C., THE CIT GROUP, INC., CIT FINANCIAL USA, INC., THE CIT
GROUP/EQUIPMENT FINANCING, INC., OR ANY AFFILIATE THEREOF, OTHER THAN CIT XX -
XX 2001-A. THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED
UNLESS THE CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN
COMPLIED WITH.
THIS CERTIFICATE IS TRANSFERABLE ONLY IN WHOLE AND NOT IN PART.
THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM.
CIT XX - XX 2001-A
EQUITY CERTIFICATE
NO. 1 Equity Certificate
THIS CERTIFIES THAT NCT Funding Company, L.L.C. is the
registered owner of a beneficial interest in the CIT XX - XX 2001-A trust (the
"Trust") formed by NCT Funding Company, L.L.C., a Delaware limited liability
company (the "Trust Depositor").
The Trust is governed by an Amended and Restated Trust
Agreement dated as of August 1, 2001 (as amended, restated, supplemented and/or
otherwise modified from time to time, the "Trust Agreement"), between NCT
Funding Company, L.L.C., as Trust Depositor (the "Trust Depositor"), and Chase
Manhattan Bank USA, National Association, as Owner Trustee, a summary of certain
of the pertinent provisions of which is set forth below. In the event of any
conflict or inconsistency between this Certificate and the Trust Agreement (or
the Pooling Agreement, as the case may be), the Trust Agreement (or the Pooling
Agreement, as the case may be) shall govern. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings which would be given
to them if used in the Trust Agreement.
B-1
This Certificate is the duly authorized Equity Certificate
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Certificate by virtue of
its acceptance hereof assents and by which such Holder is bound. The Trust has
also issued Notes in right of payment to which this Equity Certificate is
subordinate. The property of the Trust includes, among other things, all the
right, title and interest of the Trust Depositor in and to the Transferred
Assets identified in one or more related Transfer Agreements delivered from time
to time on related Transfer Dates.
The amount to be distributed to the Holder of this Certificate
on each Payment Date will be determined pursuant to the Pooling Agreement.
The Holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of Noteholders to the extent described in the Trust
Agreement and the Pooling Agreement.
It is the intent of the Financing Originator, the Servicer,
the Administrator, the Trust Depositor, the Owner Trustee, and the Equity
Certificateholder that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all items of income,
deduction, gain, loss or credit of the Trust will be treated as such items of
the Equity Certificateholder. The Trust Depositor and the Equity
Certificateholder, by acceptance of this Certificate, agrees to treat, and to
take no action inconsistent with such treatment of, the Trust for federal income
tax purposes.
The Equity Certificateholder, by its acceptance of this
Certificate or a beneficial interest in the Trust evidenced by this Certificate,
covenants and agrees that such Equity Certificateholder will not at any time
institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust or the Trust Depositor, or join in any institution
against the Trust or the Trust Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, the Trust Agreement or
any of the other Transaction Documents in existence from time to time.
Distributions on this Certificate from or in respect of Trust
Assets will be made as provided in the Trust Agreement and the Pooling
Agreement, by the Indenture Trustee or its agent by wire transfer or check
mailed to the Equity Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
B-2
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Trust Agreement or any other Transaction Document or be valid for any
purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an
interest in, the Trust Depositor, The CIT Group, Inc., CIT Financial USA, Inc.,
The CIT Group/Equipment Financing, Inc., the Owner Trustee, or any of their
respective Affiliates (other than the Trust) and no recourse may be had against
such parties or their assets, except as expressly set forth or contemplated
herein or in the Trust Agreement or the other Transaction Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Trust Assets and certain other amounts, in each
case as more specifically set forth in the Trust Agreement and in the Pooling
Agreement. A copy of each of the Pooling Agreement and the Trust Agreement may
be examined by any Equity Certificateholder upon written request during normal
business hours at the principal office of the Trust Depositor and at such other
places, if any, designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Equity
Certificateholder under the Trust Agreement at any time by the Trust Depositor
and the Owner Trustee, with the consent of the parties described therein. Any
such consent shall be conclusive and binding on the Equity Certificateholder and
on all future Equity Certificateholder of this Certificate and of any
Certificate issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent is made upon
this Certificate.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar executed by the
Equity Certificateholder hereof or such Equity Certificateholder's attorney duly
authorized in writing, and thereupon a new Certificate evidencing the same
beneficial interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is the
Indenture Trustee.
Except as provided in the Trust Agreement, this Certificate is
issuable only as a registered Equity Certificate without coupons. No service
charge will be made for any registration of transfer of this Certificate, but
the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
B-4
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to the
Equity Certificateholder of all amounts required to be paid to such Equity
Certificateholder pursuant to the Trust Agreement and the Pooling Agreement and
the disposition in accordance with any applicable Transaction Document of all
property held as part of the Trust Assets.
This Certificate may not be acquired by a Benefit Plan. By
accepting and holding this Certificate, the Holder hereof shall be deemed to
have represented and warranted that it is not a Benefit Plan and is not
acquiring this Certificate for the account of such an entity.
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
Dated: August 1, 2001 CIT XX - XX 2001-A
By: Chase Manhattan Bank USA,
National Association, not in its individual
capacity but solely as Owner Trustee
By: __________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the
within-mentioned Trust Agreement.
Allfirst Bank, as authenticating agent
By:
__________________________________
Authorized Signatory
B-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
---------------------
Signature Guaranteed:
------------------------------------------------------- --------------------------------------------
NOTICE: Signature(s) must be guaranteed by an eligible NOTICE: The signature to this assignment
guarantor institution. must correspond with the name of the
registered owner as it appears on the face of the
within Certificate in every particular, without
alteration or enlargement or any change
whatever.
B-6
