Exhibit 4.3
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AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
ANTIGUA FUNDING CORPORATION
AND
THE BANK OF NEW YORK
OWNER TRUSTEE
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DATED AS OF OCTOBER 1, 1996
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CAPITA EQUIPMENT RECEIVABLES TRUST 1996-1
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Usage of Terms. . . . . . . . . . . . . . . . . . . 3
Section 1.3. Calculations. . . . . . . . . . . . . . . . . . . . 4
Section 1.4. Section References. . . . . . . . . . . . . . . . . 4
Section 1.5. Action by or Consent of Equity Certificateholders . 4
ARTICLE II CREATION OF TRUST . . . . . . . . . . . . . . . . . 4
Section 2.1. Creation of Trust . . . . . . . . . . . . . . . . . 4
Section 2.2. Office. . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3. Purposes and Powers . . . . . . . . . . . . . . . . 5
Section 2.4. Trust May Consolidate or Merge Only on Certain Terms 6
Section 2.5. Appointment of Owner Trustee. . . . . . . . . . . . 6
Section 2.6. Initial Capital Contribution of Trust Estate. . . . 6
Section 2.7. Declaration of Trust. . . . . . . . . . . . . . . . 6
Section 2.8. Liability of the Depositor. . . . . . . . . . . . . 6
Section 2.9. Representations and Warranties of the Depositor . . 7
Section 2.10. Covenants of the Depositor. . . . . . . . . . . . . 8
Section 2.11. Covenants of the Equity Certificateholders. . . . . 12
ARTICLE III THE EQUITY CERTIFICATES . . . . . . . . . . . . . . 12
Section 3.1. Initial Ownership . . . . . . . . . . . . . . . . . 12
Section 3.2. The Equity Certificates; Authorized Denominations . 12
Section 3.3. Authentication of Equity Certificates . . . . . . . 13
Section 3.4. Registration of Transfer and Exchange of Equity
Certificates. . . . . . . . . . . . . . . . . . . . 13
Section 3.5. Mutilated, Destroyed, Lost or Stolen Equity
Certificates. . . . . . . . . . . . . . . . . . . . 15
Section 3.6. Persons Deemed Owners . . . . . . . . . . . . . . . 15
Section 3.7. Access to List of Equity Certificateholders' Names
and Addresses . . . . . . . . . . . . . . . . . . . 16
Section 3.8. Maintenance of Office or Agency . . . . . . . . . . 16
Section 3.9. Appointment of Paying Agent . . . . . . . . . . . . 16
ARTICLE IV ACTIONS BY OWNER TRUSTEE. . . . . . . . . . . . . . 17
Section 4.1. Restriction on Power of Equity Certificateholders . 17
Section 4.2. Prior Notice to Equity Certificateholders with
Respect to Certain Matters. . . . . . . . . . . . . 17
Section 4.3. Action by Equity Certificateholders with Respect
to Bankruptcy . . . . . . . . . . . . . . . . . . . 18
Section 4.4. Restrictions on Equity Certificateholders' Power. . 18
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ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES. . . . . 19
Section 5.1. Trust Accounts. . . . . . . . . . . . . . . . . . . 19
Section 5.2. Application of Funds in the Equity Certificate
Distribution Account. . . . . . . . . . . . . . . . 20
Section 5.3. Method of Payment . . . . . . . . . . . . . . . . . 22
Section 5.4. No Segregation of Monies; No Interest . . . . . . . 22
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE . . . . . . . 23
Section 6.1. General Authority . . . . . . . . . . . . . . . . . 23
Section 6.2. General Duties. . . . . . . . . . . . . . . . . . . 23
Section 6.3. Action upon Instruction . . . . . . . . . . . . . . 23
Section 6.4. No Duties Except as Specified in this Agreement, in
Related Documents or in Instructions. . . . . . . . 24
Section 6.5. No Action Except under Specified Documents or
Instructions. . . . . . . . . . . . . . . . . . . . 25
Section 6.6. Restrictions. . . . . . . . . . . . . . . . . . . . 25
Section 6.7. Covenant of the Owner Trustee . . . . . . . . . . . 25
ARTICLE VII CONCERNING THE OWNER TRUSTEE. . . . . . . . . . . . 26
Section 7.1. Acceptance of Trust and Duties. . . . . . . . . . . 26
Section 7.2. Furnishing of Documents . . . . . . . . . . . . . . 27
Section 7.3. Representations and Warranties. . . . . . . . . . . 27
Section 7.4. Reliance; Advice of Counsel . . . . . . . . . . . . 28
Section 7.5. Not Acting in Individual Capacity . . . . . . . . . 29
Section 7.6. Owner Trustee Not Liable for Equity Certificates,
Notes or tracts . . . . . . . . . . . . . . . . . . 29
Section 7.7. Owner Trustee May Own Equity Certificates and Notes 29
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . 29
Section 8.1. Owner Trustee's Fees and Expenses . . . . . . . . . 29
Section 8.2. Indemnification . . . . . . . . . . . . . . . . . . 30
Section 8.3. Non-recourse Obligations. . . . . . . . . . . . . . 30
ARTICLE IX TERMINATION . . . . . . . . . . . . . . . . . . . . 30
Section 9.1. Termination of the Trust. . . . . . . . . . . . . . 30
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES. . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.1. Eligibility Requirements for Owner Trustee. . . . . 33
Section 10.2. Resignation or Removal of Owner Trustee . . . . . . 33
Section 10.3. Successor Owner Trustee . . . . . . . . . . . . . . 34
Section 10.4. Merger or Consolidation of Owner Trustee. . . . . . 35
Section 10.5. Appointment of Co-Trustee or Separate Trustee . . . 35
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ARTICLE XI MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . 36
Section 11.1. Amendment . . . . . . . . . . . . . . . . . . . . . 36
Section 11.2. GOVERNING LAW . . . . . . . . . . . . . . . . . . . 38
Section 11.3. Severability of Provisions. . . . . . . . . . . . . 38
Section 11.4. Equity Certificates Nonassessable and Fully Paid. . 38
Section 11.5. Third-Party Beneficiaries . . . . . . . . . . . . . 38
Section 11.6. Counterparts. . . . . . . . . . . . . . . . . . . . 38
Section 11.7. Notices . . . . . . . . . . . . . . . . . . . . . . 38
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EXHIBITS
Exhibit A -- Form of Equity Certificate
Exhibit B -- Form of Representation Letter
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1,
1996, is made between Antigua Funding Corporation, a Delaware corporation (the
"Depositor"), and The Bank of New York, a New York banking corporation, as Owner
Trustee (in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. All terms defined in the Indenture and the
Transfer and Servicing Agreement (each as defined below) shall have the same
meaning in this Agreement. Whenever capitalized and used in this Agreement, the
following words and phrases, unless otherwise specified, shall have the
following meanings:
ACT: The meaning assigned in Section 3.4(g).
AGREEMENT OR "THIS AGREEMENT": This Amended and Restated Trust
Agreement, all amendments and supplements thereto and all exhibits and schedules
to any of the foregoing.
APPLICANTS: The meaning assigned in Section 3.7.
AUTHENTICATION AGENT: The Bank of New York, or its successor in
interest, and any successor authentication agent appointed as provided in this
Agreement.
BENEFIT PLAN: The meaning assigned in Section 3.4(f).
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register
maintained and the registrar appointed pursuant to Section 3.4(a).
CODE: The Internal Revenue Code of 1986, as amended.
CORPORATE TRUST OFFICE: The principal office of the Owner Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the Closing Date is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 12
East, New York, New York 10286, Attention: Corporate Trust
Administration--Asset Backed Unit; the telecopy number for the Corporate Trust
Office on the date of the execution of this Agreement is (▇▇▇) ▇▇▇-▇▇▇▇.
DEPOSITOR: Antigua Funding Corporation, a Delaware corporation, in
its capacity as depositor hereunder.
EQUITY CERTIFICATE DISTRIBUTION ACCOUNT: The account designated as
the Equity Certificate Distribution Account in, and which is established and
maintained pursuant to, Section 5.1.
EQUITY CERTIFICATE: A certificate executed by the Owner Trustee
evidencing a beneficial ownership interest in the Trust, substantially in the
form attached hereto as Exhibit A.
EQUITY CERTIFICATE BALANCE: As of any date, $127,509,329 minus all
distributions in respect of principal on the Equity Certificates prior to such
date.
EQUITY CERTIFICATE MAJORITY: The meaning assigned in Section 1.5(a).
EQUITY CERTIFICATEHOLDER: A Person in whose name an Equity
Certificate is registered in the Certificate Register.
ERISA: The meaning assigned to such term in Section 3.4(f).
EXPENSES: The meaning assigned to such term in Section 8.2.
INDEMNIFIED PARTIES: The meaning assigned to such term in Section
8.2.
INDENTURE: The Indenture, dated as of October 1, 1996, between the
Trust and The Chase Manhattan Bank, as Indenture Trustee, as the same may be
amended and supplemented from time to time.
N.Y. UCC: The UCC as in effect in the State of New York from time to
time.
OWNER TRUSTEE: The Bank of New York, or its successor in interest,
acting not individually but solely as trustee, and any successor trustee
appointed as provided in this Agreement.
PAYING AGENT: Any paying agent or co-paying agent appointed pursuant
to Section 3.9, which initially shall be the Owner Trustee.
RECORD DATE: With respect to any Payment Date or Redemption Date, the
close of business on the last Business Day immediately preceding such Payment
Date or Redemption Date.
RELATED DOCUMENTS: This Agreement, the Notes, the Equity
Certificates, the Transfer and Servicing Agreement, the Indenture, the Purchase
Agreement, the Cash Collateral Account Agreement, the Depository Agreements, the
Revolving Trust Agreement, and the underwriting agreements among the Depositor,
TCC and the underwriters of the Notes. The Related Documents executed by any
party are referred
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to herein as "such party's Related Documents," "its Related Documents" or by a
similar expression.
RESPONSIBLE OFFICER: When used with respect to the Owner Trustee, the
President, any Vice President or any Trust Officer, or any other officer or
employee having similar functions.
REVOLVING TRUST TRUSTEE: The First National Bank of Chicago or its
successor as Trustee under the Revolving Trust Agreement.
REVOLVING TRUST AGREEMENT: The Trust Agreement, dated as of October
15, 1996, among Antigua Funding Corporation, as depositor, AT&T Capital
Corporation, as administrator, The First National Bank of Chicago, as collateral
agent, and The First National Bank of Chicago, as Trustee, relating to Capita
Revolving Trust 1996-1.
TRANSFER AND SERVICING AGREEMENT: The Transfer and Servicing
Agreement, dated as of October 1, 1996, among the Trust, the Depositor, TCC, in
its individual capacity and as Servicer, and The Chase Manhattan Bank, as
trustee under the Indenture, as the same may be amended and supplemented from
time to time.
TRUST: The trust created by this Agreement, the estate of which
consists of the Trust Assets.
TRUST ACCOUNTS: The Equity Certificate Distribution Account, and such
other accounts as may be established in the name of the Trust pursuant to the
Indenture or the Transfer and Servicing Agreement.
TRUST ASSETS: The property and proceeds of every description conveyed
pursuant to Section 2.6 hereof and Section 2.1 of the Transfer and Servicing
Agreement, together with the Trust Accounts (including all Eligible Investments
therein and all proceeds therefrom) and the right to withdraw funds from the
Cash Collateral Account pursuant to Section 8.06 of the Indenture.
Section 1.2. USAGE OF TERMS. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
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Section 1.3. CALCULATIONS. All calculations of the amount of
interest accrued on the Equity Certificates shall be made on the basis of a
360-day year consisting of twelve 30-day months.
Section 1.4. SECTION REFERENCES. All references to Articles,
Sections, paragraphs, subsections, exhibits and schedules shall be to such
portions of this Agreement unless otherwise specified.
Section 1.5. ACTION BY OR CONSENT OF EQUITY CERTIFICATEHOLDERS.
(a) Except as expressly provided herein, any action that may be taken
by the Equity Certificateholders under this Agreement may be taken by the
Holders of Equity Certificates evidencing not less than a majority of the
Equity Certificate Balance at the time of such action (an "Equity
Certificate Majority"). Except as expressly provided herein, any written
notice or consent of the Equity Certificateholders delivered pursuant to
this Agreement shall be effective at the time of the delivery of such
notice if signed by an Equity Certificate Majority.
(b) Whenever any provision of this Agreement refers to action to be
taken, or consented to, by Equity Certificateholders, such provision shall
be deemed to refer to Equity Certificateholders of record as of the Record
Date immediately preceding the date on which such action is to be taken, or
consent given, by Equity Certificateholders.
Section 1.6. NO RECOURSE. Each Equity Certificateholder by accepting
an Equity Certificate acknowledges that such Equity Certificateholder's Equity
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Depositor, the Servicer, the Owner
Trustee, the Indenture Trustee or any Affiliate of any of the foregoing and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Equity Certificates
or the Related Documents.
ARTICLE II
CREATION OF TRUST
Section 2.1. CREATION OF TRUST. There is hereby formed a trust to be
known as "Capita Equipment Receivables Trust 1996-1."
Section 2.2. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Equity Certificateholders,
the Depositor, and the Indenture Trustee.
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Section 2.3. PURPOSES AND POWERS. The purpose of the Trust is, and
the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and to sell the
Notes in the manner directed by the Depositor;
(ii) to issue the Equity Certificates to or upon the order of the
Depositor, pursuant to this Agreement;
(iii) with the proceeds of the sale of the Notes, to pay the
organizational, start-up and transactional expenses of the Trust (if and to
the extent not paid by the Depositor pursuant to Section 2.6); and to
acquire the Contracts and the other items conveyed pursuant to the Transfer
and Servicing Agreement;
(v) to assign, grant, transfer, pledge, mortgage and convey any
or all of the Trust Assets to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders;
(vi) to hold, manage and distribute to the Equity
Certificateholders any portion of the Trust Assets released from the Lien
of, and remitted to the Trust pursuant to, the Indenture and to distribute
to the Equity Certificateholders any other portion of the Trust Assets in
the manner prescribed by the Transfer and Servicing Agreement, the
Indenture and the Cash Collateral Account Agreement;
(vii) to enter into and perform its obligations under the Transfer
and Servicing Agreement and the other Related Documents to which it is to
be a party;
(viii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(ix) subject to compliance with the Related 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 Equity
Certificateholders and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Trust. The Depositor is hereby authorized to execute any
registration statements, applications or other documents on behalf of the Trust
that are necessary, suitable or convenient to accomplish the foregoing. The
Owner Trustee, on behalf of the Trust, shall not engage in any activity other
than in connection with the foregoing or other than as required or expressly
authorized by the terms of this Agreement or the Related Documents.
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Section 2.4. TRUST MAY CONSOLIDATE OR MERGE ONLY ON CERTAIN TERMS.
(a) The Trust shall not consolidate or merge with or into any other
Person, unless the conditions specified in Section 3.10(a) of the Indenture have
been satisfied.
(b) The Trust shall not convey or transfer all or substantially all
of its properties or assets, including those included in the Trust Estate under
the Indenture, to any Person (except as expressly permitted by the Indenture or
the Transfer and Servicing Agreement), unless the conditions specified in
Section 3.10(b) of the Indenture have been satisfied.
Section 2.5. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.6. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $10. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Assets and
shall be deposited in the Equity Certificate Distribution Account. The
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.7. 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 use and benefit of the Equity Certificateholders,
subject to the interests and rights in the Trust Assets granted to other Persons
by the Related Documents.
Section 2.8. LIABILITY OF THE DEPOSITOR.
(a) The Depositor shall be liable directly to indemnify each injured
party for all losses, claims, damages, liabilities and expenses of the Trust, to
the extent not paid out of the Trust Assets, PROVIDED, HOWEVER, that the
Depositor shall not be liable for any losses incurred by an Equity
Certificateholder in the capacity of an investor in the Equity Certificates or a
Note Owner in the capacity of an investor in the Notes; PROVIDED, FURTHER, that
the Depositor shall not be liable to indemnify any injured party if such party
has agreed that its recourse against the Trust for any obligation or liability
of the Trust to such party shall be limited to the assets of the Trust. In
addition, any third party creditors of the Trust (other than in connection with
the obligations described in the provisos to the preceding sentence for which
the Depositor shall not be liable) shall be deemed third party beneficiaries of
this paragraph.
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(b) The Depositor, other than to the extent set forth in paragraph
(a), shall not have any personal liability for any liability or obligation of
the Trust or by reason of any action taken by the parties to this Agreement
pursuant to any provisions of this Agreement or any Related Document.
Section 2.9. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. By
execution of this Agreement, the Depositor makes the following representations
and warranties on which the Owner Trustee relies in accepting the Trust Assets
in trust and issuing the Notes and Equity Certificates.
(a) ORGANIZATION AND GOOD STANDING. It has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and as such
business is currently conducted and is proposed to be conducted pursuant to
this Agreement and the Related Documents.
(b) DUE QUALIFICATION. It is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property, the conduct of its business and the performance of
its obligations under this Agreement and the Related Documents requires
such qualification.
(c) POWER AND AUTHORITY. It has the power and authority to execute
and deliver this Agreement and its Related Documents and to perform its
obligations pursuant thereto (including but not limited to the transfer of
the Contracts to the Trust); and the execution, delivery and performance of
this Agreement and its Related Documents have been duly authorized by all
necessary corporate action.
(d) NO CONSENT REQUIRED. No consent, license, approval or
authorization of, or registration or declaration with, any Person or any
governmental authority, bureau or agency is required to be obtained by the
Depositor in connection with the execution, delivery or performance of this
Agreement and the Depositor's Related Documents, except for such as have
been obtained, effected or made.
(e) NO VIOLATION. The consummation of the transactions contemplated
by this Agreement and its Related Documents and the fulfillment of its
obligations under this Agreement and its Related Documents will not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice, lapse of time or both) a default
under, its certificate of incorporation or by-laws, or any indenture,
agreement, mortgage, deed of trust or other instrument to which it is a
party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the
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terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, or violate any law, order, rule or regulation applicable to it
of any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over it or
any of its properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to its knowledge, threatened against it before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over it or its properties (A) asserting
the invalidity of this Agreement or any of the Related Documents, (B)
seeking to prevent the issuance of the Equity Certificates or the Notes or
the consummation of any of the transactions contemplated by this Agreement
or any of the Related Documents, (C) seeking any determination or ruling
that might materially and adversely affect its performance of its
obligations under, or the validity or enforceability of, this Agreement or
any of the Related Documents, or (D) seeking to adversely affect the
Federal income tax or other Federal, state or local tax attributes of the
Trust, the Notes or the Equity Certificates.
(g) PLACE OF BUSINESS. The principal executive offices of the
Depositor are in Morristown, New Jersey, and the offices where the
Depositor keeps its records concerning the Contracts and related documents
are in Morristown, New Jersey.
(h) NOT AN INVESTMENT COMPANY. The Depositor is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or is exempt from all provisions of such Act.
(i) BINDING OBLIGATIONS. This Agreement and each of the Depositor's
Related Documents constitutes the legal, valid and binding obligation of
the Depositor, enforceable against the Depositor in accordance with its
terms, except (A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect, affecting the enforcement of creditors' rights
in general, and (B) as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity).
Section 2.10. COVENANTS OF THE DEPOSITOR. The Depositor agrees and
covenants for the benefit of each Note Owner, each Equity Certificateholder and
the Owner Trustee, during the term of this Agreement, and to the fullest extent
permitted by applicable law, that:
(a) OTHER INDEBTEDNESS. It shall not create, incur or suffer to
exist any indebtedness or engage in any business, except, in each case, as
permitted by its certificate of incorporation and the Related Documents.
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(b) NON-PETITION. It shall not, for any reason, institute
proceedings for itself or the Trust to be adjudicated a bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against itself or the Trust, or file a petition seeking or
consenting to reorganization or relief under any applicable Federal or
state law relating to the bankruptcy of itself or the Trust, or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of itself or the Trust or a substantial part of
its assets or the property of the Trust or cause or permit itself or the
Trust to make any assignment for the benefit of creditors, or admit in
writing its inability or the inability of the Trust to pay its debts
generally as they become due, or declare or effect a moratorium on the debt
of itself or the Trust or take any action in furtherance of any such
action.
(c) OTHER PARTIES. It shall obtain from each counterparty to each
Related Document to which it or the Trust is a party and each other
agreement entered into on or after the date hereof to which it or the Trust
is a party, an agreement by each such counterparty that such counterparty
shall not institute against, or join any other Person in instituting
against, it or the Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under
the laws of the United States or any state of the United States.
(d) NO LIENS. Except for the conveyances as provided hereunder or in
the Related Documents, the Depositor will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on, any Contract or any other Trust Assets or any Equipment
(except as created by the related Contract), whether now existing or
hereafter created, and the Depositor shall defend the right, title and
interest of the Trust in, to and under the Contracts and the other Trust
Assets, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties
claiming through or under the Depositor; the Depositor will immediately
notify the Trustee of the existence of any Lien on any Contract or
Equipment (except as created by the related Contract); and the Depositor
shall defend the right, title and interest of the Trust in, to and under
the Contracts and the other Trust Assets, whether now existing or hereafter
created, against all claims of third parties claiming through or under the
Depositor.
(e) ENFORCEMENT OF PURCHASE AGREEMENT. The Depositor agrees to take
all action necessary and appropriate to enforce its rights and claims under
the Purchase Agreement.
(f) SEPARATE BUSINESS. The Depositor:
(i) will (A) maintain and prepare financial reports,
financial statements, books and records and bank accounts separate
from those of
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its Affiliates and any other person or entity and (B) not permit any
Affiliate or any other person or entity independent access to its bank
accounts;
(ii) will not commingle its funds and other assets with
those of any Affiliate, any guarantor of any of the obligations of the
Depositor (each, a "Guarantor"), any Affiliate of any Guarantor or any
other person or entity;
(iii) will conduct its own business in its own name and will
hold all of its assets in its own name;
(iv) will remain solvent and pay its debts and liabilities
(including employment and overhead expenses) from its assets as the
same become due;
(v) will do all things necessary to observe corporate
formalities, and preserve its existence as a single-purpose,
bankruptcy-remote entity in accordance with the standards of the
Rating Agencies providing ratings on the Notes or the Equity
Certificates, as such standards are in effect on the date of issuance
of the Notes and the Equity Certificates;
(vi) will enter into transactions with Affiliates only if
each such transaction is commercially reasonable and on substantially
similar terms as a transaction that would be entered into on an arm's
length basis with a person or entity other than an Affiliate of the
Depositor;
(vii) will pay the salaries of its own employees from its own
funds and maintain a sufficient number of employees in light of its
contemplated business operations;
(viii) will compensate each of its consultants and agents from
its own funds for services provided to it and pay from its own assets
all obligations of any kind incurred;
(ix) will not guarantee, become obligated for, or hold
itself or its credit out to be responsible for, or available to
satisfy, the debts or obligations of any other person or entity or the
decisions or actions respecting the daily business or affairs of any
other person or entity (except as contemplated by its certificate of
incorporation and the Related Documents);
(x) will not (i) acquire obligations or securities of any
Affiliate or any of the stockholders of the Depositor or (ii) buy or
hold any evidence of indebtedness issued by any other person or
entity, other than cash,
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investment-grade securities, the Contracts and other pools of
receivables similar to the Contracts;
(xi) will allocate fairly and reasonably and pay from its
own funds the cost of (i) any overhead expenses (including paying for
any office space) shared with any Affiliate of the Depositor and (ii)
any services (such as asset management, legal and accounting) that are
provided jointly to the Depositor and one or more of its Affiliates;
(xii) will maintain and utilize separate stationery, invoices
and checks bearing its own name and allocate separate office space
(which may be a separately identified area in office space shared with
one or more Affiliates of the Depositor) and maintain a separate sign
in the office directory of the building in which the Depositor
maintains its principal place of business;
(xiii) will not make any loans or advances to, or pledge its
assets for the benefit of, any other person or entity, including,
without limitation, any Affiliate or Guarantor or any Affiliate of any
Guarantor (except as contemplated by its certificate of incorporation
and the Related Documents);
(xiv) will be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other person
or entity;
(xv) will, in the event that any authorized officer knows of
any misunderstanding regarding the separate identity of the Depositor,
correct such misunderstanding;
(xvi) will not identify itself or any of its Affiliates as a
division or part of any other entity; and
(xvii) will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations.
(g) PURCHASE AGREEMENT NOTICES. The Depositor (i) shall promptly
give the Owner Trustee and the Indenture Trustee copies of any notices,
reports or certificates given or delivered to the Depositor under the
Purchase Agreement, (ii) shall not without the consents, approvals and
opinions, if any, required by Section 11.1, as if Section 11.1 related to
the Purchase Agreement rather than this Agreement, enter into any
amendment, supplement or other modification to, or waiver of any provision
of, the Purchase Agreement and (iii) shall not permit the removal of a
Contract from the operation of the Purchase
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Agreement unless there is a corresponding right or obligation of the
Depositor to remove such Contract from the Trust.
Section 2.11. COVENANTS OF THE EQUITY CERTIFICATEHOLDERS. Each
Equity Certificateholder by becoming an Equity Certificateholder agrees:
(a) to be bound by the terms and conditions of the Equity
Certificates of which such Holder is the beneficial owner and of this
Agreement, including any supplements or amendments hereto and to perform
the obligations of a Holder as set forth therein or herein, in all respects
as if it were a signatory hereto. This undertaking is made for the benefit
of the Trust, the Owner Trustee and all other Equity Certificateholders
present and future.
(b) not to, for any reason, institute proceedings for the Trust or
the Depositor to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust or
the Depositor, or file a petition seeking or consenting to reorganization
or relief under any applicable Federal or state law relating to bankruptcy,
or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Trust or the Depositor or a
substantial part of its property, or cause or permit the Trust or the
Depositor to make any assignment for the benefit of its creditors, or admit
in writing its inability to pay its debts generally as they become due, or
declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
ARTICLE III
THE EQUITY CERTIFICATES
Section 3.1. INITIAL OWNERSHIP. Upon the formation of the Trust by
the contribution by the Depositor pursuant to Section 2.6 and until the issuance
of the Equity Certificates, the Depositor shall be the sole beneficiary of the
Trust.
Section 3.2. THE EQUITY CERTIFICATES; AUTHORIZED DENOMINATIONS.
(a) The Equity Certificates shall be executed on behalf of the Trust
by the Owner Trustee by manual or facsimile signature of any authorized
signatory of the Owner Trustee having such authority. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Owner Trustee shall
be validly issued and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Equity Certificates.
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(b) On the Closing Date, one Equity Certificate, in the principal
amount of $127,509,329, shall be issued to or upon the written order of the
Depositor signed by its President or any Vice President. Unless and until the
Equity Certificate is transferred pursuant to Section 3.4(b), there shall at all
times be a single Equity Certificate. In the event of any such transfer, Equity
Certificates may thereafter be issued in denominations of $250,000 initial
principal amount and integral multiples of $1,000 thereof.
Section 3.3. Authentication of Equity Certificates. No Equity
Certificate shall entitle its holder to any benefit under this Agreement, or
shall 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 A, executed by the Owner Trustee or the Authentication Agent, by
manual or facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Owner Trustee hereby initially appoints itself as Authentication
Agent. All Equity Certificates shall be dated the date of their authentication.
Section 3.4. REGISTRATION OF TRANSFER AND EXCHANGE OF EQUITY
CERTIFICATES.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.8, a
Certificate Register in which, subject to such reasonable regulations as it
may prescribe, the Owner Trustee shall provide for the registration of
Equity Certificates and of transfers and exchanges of Equity Certificates
as provided in this Agreement. The Owner Trustee hereby initially appoints
itself Certificate Registrar for the purpose of registering Equity
Certificates and transfers and exchanges of Equity Certificates as provided
in this Agreement.
(b) The Depositor may transfer the Equity Certificate to the
Revolving Trust Trustee, and in connection therewith may instruct the
Certificate Registrar to register the sole Equity Certificate in the name
of the Revolving Trust Trustee or in the name of Cede & Co., as nominee of
The Depository Trust Company, provided that the Depositor has obtained an
opinion of counsel (with a copy to the Owner Trustee and the Certificate
Registrar, permitting reliance thereon by the Owner Trustee and Certificate
Registrar) to the effect that the interests in the Revolving Trust sold to
investors will be treated as debt for tax purposes (provided that no
opinion need be provided regarding the characterization of any cash
collateral account). The Equity Certificate shall not thereafter be
transferable, except (i) as required by the terms of the Revolving Trust
Agreement, (ii) upon the termination of the Revolving Trust Agreement, and
(iii) as may be required to reflect the interest of a successor trustee
under the Revolving Trust Agreement.
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(c) If the registration of transfer of an Equity Certificate is
permitted by subsection (b), then, upon surrender for registration of
transfer of such Equity Certificate at the office or agency maintained
pursuant to Section 3.8, the Owner Trustee shall execute, authenticate and
deliver (or shall cause the Authentication Agent to authenticate and
deliver), in the name of the designated transferee or transferees, one or
more new Equity Certificates in authorized denominations and aggregate
proportion of the Equity Certificate Balance dated the date of
authentication by the Owner Trustee or any Authentication Agent. If the
registration of transfer of an Equity Certificate is permitted by
subsection (b), then at the option of the Holder, such Equity Certificate
may be exchanged for other Equity Certificates in authorized denominations
of a like aggregate amount upon surrender of the Equity Certificates to be
exchanged at the office or agency maintained pursuant to Section 3.8.
(d) Every Equity Certificate presented or surrendered for
registration of transfer or exchange must be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Equity Certificate properly surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Owner Trustee in accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer
or exchange of Equity Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer or exchange of Equity Certificates.
(f) No Equity Certificate may be acquired by or for the account of
(i) an employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title 1 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 (each, a
"Benefit Plan"). By accepting and holding an Equity Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is
not a Benefit Plan.
(g) In addition to the restrictions of subsection (b) above, and
except for the transfer of the Equity Certificate to the Revolving Trust
Trustee or its designee, no transfer of an Equity Certificate may be made
by the Depositor or any other Person unless such transfer is exempt from
the registration requirements of the Securities Act of 1933 (the "Act"), as
amended, and any applicable state securities laws or is made in accordance
with the Act and such state laws. In the event that any such transfer is
to be made, (A) the Depositor may require a written Opinion of Counsel
acceptable to and in form and
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substance satisfactory to the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the Act and such state laws or is being made pursuant to the
Act and such state laws, which Opinion of Counsel shall not be an expense
of the Owner Trustee or the Depositor, and (B) the Owner Trustee shall
require the transferee to execute a representation letter substantially in
the form of Exhibit B attached hereto, which representation letter shall
not be an expense of the Owner Trustee or the Depositor. The Equity
Certificateholder desiring to effect such transfer shall, and does hereby
agree to, indemnify the Owner Trustee, the Depositor and the Certificate
Registrar against any liability that may result if the transfer is not so
exempt or is not made in accordance with the Act and such state laws.
Section 3.5. MUTILATED, DESTROYED, LOST OR STOLEN EQUITY
CERTIFICATES. If (a) any mutilated Equity 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 to the Certificate Registrar or the Owner Trustee
that such Equity Certificate has been acquired by a bona fide purchaser, the
Owner Trustee on behalf of the Trust shall execute, authenticate and deliver (or
the Authentication Agent shall authenticate and deliver), in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Equity Certificate, a new
Equity Certificate of like tenor and portion of the Equity Certificate Balance.
In connection with the issuance of any new Equity Certificate under this Section
3.5, the Owner Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Owner Trustee and the
Certificate Registrar) connected therewith. Any duplicate Equity Certificate
issued pursuant to this Section 3.5 shall constitute conclusive evidence of
ownership of a beneficial interest in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Equity Certificate shall be found
at any time.
Section 3.6. PERSONS DEEMED OWNERS. Prior to due presentation of an
Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any agent of the Owner Trustee or the Certificate
Registrar may treat the person in whose name any Equity Certificate is
registered as the owner of such Equity Certificate for the purpose of receiving
distributions pursuant to Section 5.2, and for all other purposes whatsoever,
and neither the Owner Trustee, the Certificate Registrar nor any agent of the
Owner Trustee or the Certificate Registrar shall be affected by any notice to
the contrary.
Section 3.7. ACCESS TO LIST OF EQUITY CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Owner Trustee of a written request
therefor, a list, in such form as the Servicer may reasonably require, of the
names and addresses of the
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Equity Certificateholders as of the most recent Record Date for payment of
distributions to Equity Certificateholders. If one or more Equity
Certificateholders evidencing not less than 25% of the Equity Certificate
Balance (hereinafter referred to as "Applicants"), apply in writing to the Owner
Trustee, and such application states that the Applicants desire to communicate
with other Equity Certificateholders with respect to their rights under this
Agreement or under the Equity Certificates and is accompanied by a copy of the
communication that such Applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such Applicants access, during normal business hours, to the current list of
Equity Certificateholders. Every Equity Certificateholder, by receiving and
holding an Equity Certificate, agrees that none of the Servicer or the Owner
Trustee, nor any agent thereof, shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Equity
Certificateholders under this Agreement, regardless of the source from which
such information was derived.
Section 3.8. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Equity Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Equity Certificates and the Related
Documents may be served. The Owner Trustee initially designates its Corporate
Trust Office as its principal corporate trust office for such purposes. The
Owner Trustee shall give prompt written notice to the Depositor and to the
Equity Certificateholders of any change in the location of the Certificate
Register or any such office of agency.
Section 3.9. APPOINTMENT OF PAYING AGENT. The Paying Agent shall
make distributions to Equity Certificateholders from the Equity Certificate
Distribution Account pursuant to Section 5.2, and shall report the amounts of
such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Equity Certificate Distribution
Account for the purpose of making the distributions referred to above. The
Owner Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Paying Agent shall initially be the Owner Trustee, and any co-paying agent
(which shall be a bank or trust company) chosen by the Owner Trustee. Any
Paying Agent chosen by the Owner Trustee shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Owner Trustee. The Owner Trustee
shall cause each Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such Paying Agent shall
agree with the Owner Trustee that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Equity Certificateholders in trust for the benefit of the Equity
Certificateholders entitled thereto until such sums shall be paid to such Equity
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee, and upon removal of a Paying Agent, such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
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Sections 7.1, 7.3, 7.4 and 8.2 shall apply to the Owner Trustee also in its role
as Paying Agent for so long as the Owner Trustee shall act as Paying Agent and,
to the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. RESTRICTION ON POWER OF EQUITY CERTIFICATEHOLDERS. No
Equity Certificateholder shall have any right to vote or in any manner otherwise
control the operation and management of the Trust except as expressly provided
in this Agreement.
Section 4.2. PRIOR NOTICE TO EQUITY CERTIFICATEHOLDERS WITH RESPECT
TO CERTAIN MATTERS. The Owner Trustee shall not take any of the following
actions, unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Equity Certificateholders in writing of the
proposed action and the Owner Trustee shall not have received written notice
prior to the 30th day after such notice is given that an Equity Certificate
Majority have withheld consent or provided alternative direction:
(a) the amendment of this Agreement pursuant to Section 11.1, unless
such amendment would not, as evidenced by an Opinion of Counsel, materially
and adversely affect the interests of the Equity Certificateholders;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required, as provided
in Section 9.02 of the Indenture, unless such amendment would not, as
evidenced by an Opinion of Counsel, materially and adversely affect the
interests of the Equity Certificateholders;
(c) the amendment of any other Related Document pursuant to the
provisions thereof, unless such amendment would not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of the
Equity Certificateholders; or
(d) the initiation or settlement of any material claim, proceeding or
lawsuit affecting the Trust or the Trust Assets.
Section 4.3. ACTION BY EQUITY CERTIFICATEHOLDERS WITH RESPECT TO
BANKRUPTCY. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Depositor or the Trust without the
unanimous prior approval of the Indenture Trustee and all Equity
Certificateholders and the
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delivery to the Owner Trustee by the Indenture Trustee and each Equity
Certificateholder of a certificate certifying that the Indenture Trustee, or
such Equity Certificateholder, as the case may be, reasonably believes that the
Depositor or the Trust, as appropriate, is insolvent.
Section 4.4. RESTRICTIONS ON EQUITY CERTIFICATEHOLDERS' POWER. No
Equity Certificateholder shall have any right by virtue or by availing itself of
any provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement or any Related
Document, unless (i) the Equity Certificateholders have provided instruction to
the Owner Trustee pursuant to Section 6.3, (ii) Equity Certificateholders
evidencing not less than 25% of the Equity Certificate Balance previously shall
have given to the Owner Trustee a written notice of default under or breach of
this Agreement or any Related Document and of the continuance thereof, as
provided in this Agreement, and (iii) Equity Certificateholders evidencing not
less than 25% of the Equity Certificate Balance shall have made written request
upon the Owner Trustee to institute such action, suit or proceeding in its own
name as Owner Trustee under this Agreement and shall have offered to the Owner
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Owner Trustee, for 30
days after its receipt of such notice, request, and offer of indemnity, shall
have neglected or refused to institute any such action, suit, or proceeding, and
during such 30-day period no request or waiver inconsistent with such written
request has been given to the Owner Trustee pursuant to and in compliance with
this Section or Section 6.3; it being understood and intended, and being
expressly covenanted by each Equity Certificateholder with every other Equity
Certificateholder and the Owner Trustee, that no one or more Holders of Equity
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the Equity
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of the Equity Certificateholders. For the protection and enforcement of the
provisions of this Section 4.4, each and every Equity Certificateholder and the
Owner Trustee shall be entitled to such relief as can be given either at law or
in equity.
Section 4.5. AUTHORITY OF THE DEPOSITOR. The Depositor shall have
the authority to sign, on behalf of the Owner Trust, all filings with the
Securities and Exchange Commission made by the Owner Trust.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. TRUST ACCOUNTS.
(a) The Owner Trustee shall establish and maintain the Equity
Certificate Distribution Account in the name of the Trust for the benefit of the
Equity Certificateholders. The Equity Certificate Distribution Account shall be
an Eligible Account and initially shall be a segregated trust account
established with the Owner Trustee and maintained with the Owner Trustee.
(b) The Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Equity Certificate Distribution
Account and in all proceeds thereof. If, at any time, the Equity Certificate
Distribution Account ceases to be an Eligible Account, the Owner Trustee shall
within 5 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Equity Certificate
Distribution Account, as an Eligible Account and shall transfer any cash and
investments to such new Equity Certificate Distribution Account.
(c) All amounts held in the Equity Certificate Distribution Account
shall, to the extent permitted by applicable laws, rules and regulations, be
invested by the Owner Trustee at the direction of the Depositor in Eligible
Investments that mature not later than one Business Day prior to the immediately
following Payment Date. Such investments shall not be sold or disposed of prior
to their maturity. All investments of funds in the Equity Certificate
Distribution Account shall be held by a financial institution in accordance with
the following requirements:
(i) all Eligible Investments shall be held in an account
with such financial institution in the name of the Owner Trustee;
(ii) with respect to securities held in such account, such
securities must be:
(A) certificated securities (as such term is used in N.Y.
UCC Section 8-313(d)(i)), securities deemed to be certificated
securities under applicable regulations of the United States
government, or uncertificated securities issued by an issuer organized
under the laws of the State of New York or the State of Delaware;
(B) either (I) in the possession of such financial
institution, (II) in the possession of a clearing corporation (as such
term is used in N.Y. UCC Section 8-102(5)), registered in the name of
such clearing corporation or its nominee, not endorsed for collection
or surrender or any other purpose not involving transfer, not
containing any evidence of a right or interest inconsistent with the
Owner Trustee's security interest
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therein, and held by such clearing corporation in an account of such
financial institution, (III) held in an account of a financial
institution with the Federal Reserve Bank of New York, or (IV) in the
case of uncertificated securities, issued in the name of such
financial institution; and
(C) identified, by book entry or otherwise, as held for the
account of, or pledged to, the Owner Trustee on the records of such
financial institution, and such financial institution shall have sent
the Owner Trustee a confirmation thereof;
(iii) with respect to repurchase obligations held in a
Certificate Account, each such repurchase obligation must be identified by
such financial institution, by book entry or otherwise, as held for the
account of, or pledged to, the Owner Trustee on the records of such
financial institution, and the related securities must be held in
accordance with the requirements of clause (ii) above;
(iv) with respect to any Eligible Investments other than
securities and repurchase agreements, such Eligible Investments must be
held in a manner acceptable to the Owner Trustee.
Subject to the other provisions hereof, the Owner Trustee shall have
sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Owner Trustee or its agent, together with each
document of transfer, if any, necessary to transfer title to such investment to
the Owner Trustee in a manner which complies with this Section 5.1. All
interest, dividends, gains upon sale and other income from, or earnings on
investment of, funds in the Equity Certificate Distribution Account shall be
deposited in the Equity Certificate Distribution Account and distributed on the
next Payment Date pursuant to Section 5.2(d). The Depositor shall deposit in
the Equity Certificate Distribution Account an amount equal to any net loss on
such investments immediately as realized.
Section 5.2. APPLICATION OF FUNDS IN THE EQUITY CERTIFICATE
DISTRIBUTION ACCOUNT.
(a) On each Payment Date the Paying Agent will, based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 3.9 of the Transfer and Servicing
Agreement, distribute to Equity Certificateholders, to the extent of the funds
available, amounts deposited in the Equity Certificate Distribution Account
pursuant to Sections 8.03 and 8.06 of the Indenture with respect to such Payment
Date in the following order of priority:
(i) first, from the amounts deposited in the Equity
Certificate Distribution Account pursuant to Sections 8.03 and 8.06 of the
Indenture, to the
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Equity Certificateholders, on a pro rata basis, an amount equal to the
Equity Certificate Interest Distributable Amount;
(ii) second, from the amounts deposited in the Equity
Certificate Distribution Account pursuant to Sections 8.03 and 8.06 of the
Indenture, to the Equity Certificateholders, on a pro rata basis, an amount
equal to the Equity Certificate Principal Distributable Amount;
(iii) third, to the Equity Certificateholders on a pro rata
basis, all amounts, if any, deposited in the Equity Certificate
Distribution Account pursuant to Section 8.03(vii) of the Indenture.
(b) On the Payment Date following the date on which amounts received
in respect of the Depositor's exercise of its option to purchase the corpus of
the Trust pursuant to Section 5.1(a) of the Transfer and Servicing Agreement are
deposited in the Equity Certificate Distribution Account pursuant to Section
8.03 of the Indenture, the Paying Agent will distribute such funds (taking into
account any concurrent distribution made pursuant to Section 5.2(a)) in the
following order of priority:
(i) first, to Equity Certificateholders, on a pro rata
basis, an amount equal to the Equity Certificate Interest Distributable
Amount; and
(ii) second, to Equity Certificateholders, on a pro rata
basis, the remaining Equity Certificate Balance.
(c) On the Payment Date following each date on which the Indenture
Trustee makes payments of money or property in respect of liquidation of the
Trust Assets pursuant to Section 5.06 of the Indenture and deposits funds
received in connection with such liquidation in the Equity Certificate
Distribution Account, the Paying Agent will distribute such funds (taking into
account any concurrent distribution made pursuant to Section 5.2(a)) in the
following order of priority:
(i) first, to Equity Certificateholders, on a pro rata
basis, an amount equal to the Equity Certificate Interest Distributable
Amount; and
(ii) second, to Equity Certificateholders, on a pro rata
basis, for amounts in respect of principal on the Equity Certificates to
the extent necessary to reduce the Equity Certificate Balance to zero.
(d) Any funds remaining in the Equity Certificate Distribution
Account after distribution of all other amounts specified in this Section 5.2
shall be distributed to the Equity Certificateholders, pro rata.
(e) On each Payment Date, the Paying Agent shall send to each Equity
Certificateholder the statement required pursuant to Section 7.05(b) of the
Indenture.
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(f) In the event that any withholding tax is imposed on the Trust's
payment to an Equity Certificateholder, such tax shall reduce the amount
otherwise distributable to such Equity Certificateholder in accordance with this
Section. The Paying Agent is hereby authorized and directed to retain from
amounts otherwise distributable to the Equity Certificateholders sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to an 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 (such
as a distribution to a non-U.S. Certificateholder), the Owner Trustee may in its
sole discretion withhold such amounts in accordance with this paragraph (f). In
the event that an Equity Certificateholder wishes to apply for a refund of any
such withholding tax, the Owner Trustee shall reasonably cooperate with such
Equity Certificateholder in making such claim so long as such Equity
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
(g) Each reference to "pro rata" distributions in this Section 5.2
means in accordance with the proportion the original denomination of such Equity
Certificate bears to the initial Equity Certificate Balance.
Section 5.3. METHOD OF PAYMENT. Subject to Section 9.1(d),
distributions of funds required to be made to Equity Certificateholders on any
Payment Date shall be made to each Equity Certificateholder of record on the
preceding Record Date either (i) by wire transfer, in immediately available
funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, provided that such Certificateholder shall have
provided to the Certificate Registrar appropriate written instructions at least
five Business Days prior to such Payment Date and such Holder's Certificates in
the aggregate evidence an initial denomination of not less than $10,000,000 (or
if such Certificateholder is the Revolving Trust Trustee or its nominee, the
Depository Trust Company or its nominee, or the Depositor or an Affiliate
thereof), or (ii) if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register.
Section 5.4. NO SEGREGATION OF MONIES; NO INTEREST. Subject to
Section 5.1, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or by the
Indenture 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.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1. GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Related Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Trust's Related Documents and any amendment thereto, and on
behalf of the Trust, to direct the Indenture Trustee to authenticate and deliver
to or upon the order of the Depositor the Class A-1 Notes in the aggregate
principal amount of $1,125,000,000, the Class A-2 Notes in the aggregate
principal amount of $695,000,000, the Class A-3 Notes in the aggregate principal
amount of $659,000,000, the Class A-4 Notes in the aggregate principal amount of
$400,220,000, and the Class B Notes in the aggregate principal amount of
$178,500,000. In addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required of the Trust pursuant
to the Related Documents.
Section 6.2. GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through such agents as shall be
appointed) all of its responsibilities pursuant to the terms of this Agreement
and the Related Documents and to administer the Trust in the interest of the
Equity Certificateholders, subject to the Related Documents and in accordance
with the provisions of this Agreement.
Section 6.3. ACTION UPON INSTRUCTION.
(a) Subject to Article IV, an Equity Certificate Majority shall have
the exclusive right to direct the actions of the Owner Trustee in the management
of the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Related Document, and provided that if the
Indenture Trustee, the Noteholders or the Servicer are entitled, pursuant to the
Indenture or the Transfer and Servicing Agreement, to direct any actions of the
Owner Trustee, such directions shall control. The Equity Certificateholders may
not instruct the Owner Trustee in a manner inconsistent with this Agreement or
the Related Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is contrary to the terms hereof or of any Related Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Related Document, and the Owner Trustee has not received
instructions with respect to such matter from the Indenture Trustee, the
Noteholders or the Servicer pursuant to the terms of the Indenture or the
Transfer and Servicing Agreement, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the Equity
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in
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accordance with any written instruction received from the Equity
Certificateholders, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received appropriate
instruction within 15 days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the Equity
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Related Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Equity
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 15 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the Equity
Certificateholders, and shall have no liability to any Person for such action or
inaction.
Section 6.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT, IN
RELATED DOCUMENTS 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 Trust is a party, except as expressly provided
by the terms of this Agreement (including as provided in Section 6.2), in any
Related Document or in any written instruction received by the Owner Trustee
pursuant to Section 6.3; and no implied duties or obligations shall be read into
this Agreement or any Related Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for preparing, monitoring or filing any
financing or continuation statements in any public office at any time or
otherwise to perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement or any Related Document;
however, the Owner Trustee will from time to time execute and deliver such
financing or continuation statements as are prepared by the Servicer and
delivered to the Owner Trustee for its execution on behalf of the Trust for the
purpose of perfecting or maintaining the perfection of such a security interest
or lien or effecting such a recording. The Owner Trustee nevertheless agrees
that it will, at its own cost and
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expense (and not at the expense of the Trust), promptly take all action as may
be necessary to discharge any liens on any part of the Trust Assets that are
attributable to claims against the Owner Trustee in its individual capacity that
are not related to the ownership or the administration of the Trust Assets.
Section 6.5. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust 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 Related Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
Section 6.6. RESTRICTIONS. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust becoming taxable as a corporation for Federal income tax
purposes. The Equity Certificateholders may not direct the Owner Trustee to
take action that would violate the provisions of this Section.
Section 6.7. COVENANT OF THE OWNER TRUSTEE. The Owner Trustee agrees
that it will not, for any reason, institute proceedings for the Trust or the
Depositor to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust or the
Depositor, or file a petition seeking or consenting to reorganization or relief
under any applicable Federal or state law relating to bankruptcy, or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trust or the Depositor or a substantial part of
its property, or cause or permit the Trust or the Depositor to make any
assignment for the benefit of its creditors, or admit in writing its inability
to pay its debts generally as they become due, or declare or effect a moratorium
on its debt or take any action in furtherance of any such action.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.1. ACCEPTANCE OF TRUST AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Assets upon the terms of the Related Documents
and this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Related Document under any circumstances, except (i) for
its own willful misconduct or gross negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3, (iii) for
liabilities arising from the failure of the Owner Trustee to perform obligations
expressly undertaken by it in the last sentence of Section 6.4, or (iv) for
taxes, fees or
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other charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or any Related Document. In particular, but not
by way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
instructions of the Certificateholders meeting the requirements of Section
6.3;
(c) no provision of this Agreement or any Related Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Related Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under this Agreement or any of the
Related Documents, including the principal of and interest on the Equity
Certificates or the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement (except as provided in
Section 7.3) or for the due execution hereof by the 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 the
Related Documents, other than the certificate of authentication on the
Equity Certificates, and the Owner Trustee shall in no event assume or
incur any liability, duty, or obligation to the Indenture Trustee, any
Noteholder or to any Equity Certificateholder, other than as expressly
provided for herein and in the Related Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee or the Servicer under any of the
Related Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Related Documents that are required to be performed by the
Indenture Trustee under the Indenture or by the Servicer under the Transfer
and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Related Document, at the request, order
or direction of the
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Equity Certificateholders, unless such Equity Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any
Related Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its gross negligence or willful
misconduct in the performance of any such act.
Section 7.2. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Equity Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Related Documents unless the Equity
Certificateholders have previously received such items.
Section 7.3. REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Depositor and the Equity
Certificateholders that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of New York. It has all
requisite corporate power and authority and all franchises, grants,
authorizations, consents, orders and approvals from all governmental
authorities necessary to execute, deliver and perform its obligations under
this Agreement and each Related Document to which the Trust is a party.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and each Related Document to
which the Trust is a party, and this Agreement and each such Related
Document will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement and such Related Document
on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement
and each Related Document to which the Trust is a party, nor the
consummation by it of the transactions contemplated hereby or thereby nor
compliance by it with any of the terms or provisions hereof or thereof will
contravene any Federal or New York law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Assets resulting from actions by or claims against
the Owner Trustee individually which are unrelated to this Agreement or the
Related Documents.
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Section 7.4. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Related Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Related Document.
Section 7.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided
in this Article VII, in accepting the trusts hereby created The Bank of New York
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Related Document shall look
only to the Trust Assets for payment or satisfaction thereof.
Section 7.6. OWNER TRUSTEE NOT LIABLE FOR EQUITY CERTIFICATES, NOTES
OR CONTRACTS. The recitals contained herein, in the Equity Certificates (other
than the signature and counter-signature of the Owner Trustee on the Equity
Certificates) and in the Notes (other than the signature or counter-signature of
the Owner Trustee on the Notes) shall be taken as the statements of the
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, of any Related Document or of the Equity
Certificates (other than the signature and counter-signature of the Owner
Trustee on the Equity Certificates) or the Notes (other than the signature or
counter-signature of the Owner Trustee on the Notes), or of any Contract or
related documents. The Owner Trustee shall at no time have any responsibility
or liability for
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or with respect to the legality, validity and enforceability of any Contract, or
the perfection and priority of any security interest created by any Contract in
any Equipment or the maintenance of any such perfection and priority of any
security interest created by any Contract in any Equipment, or for or with
respect to the sufficiency of the Trust Assets or its ability to generate the
payments to be distributed to Equity Certificateholders 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 Depositor or the Servicer with any warranty or representation made under
any Related Document or in any related document or the accuracy of any such
warranty or representation or any action of the Indenture Trustee or the
Servicer taken in the name of the Owner Trustee.
Section 7.7. OWNER TRUSTEE MAY OWN EQUITY CERTIFICATES AND NOTES.
The Owner Trustee in its individual or any other capacity may become the owner
or pledgee of Equity Certificates or Notes and may deal with the Depositor, the
Indenture Trustee and the Servicer in banking or other transactions with the
same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.1. OWNER TRUSTEE'S FEES AND EXPENSES. The Servicer,
pursuant to the Transfer and Servicing Agreement, has covenanted and agreed to
pay to the Owner Trustee, and the Owner Trustee shall be entitled to, certain
annual fees and to reimbursement for all ordinary and reasonable out-of-pocket
expenses incurred or made by it in the performance of its duties under this
Agreement, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder; PROVIDED, HOWEVER, that the Owner Trustee shall only be
entitled to reimbursement for expenses hereunder to the extent such expenses (i)
are fees of outside counsel engaged by the Owner Trustee in respect of the
performance of its obligations hereunder or (ii) relate to the performance of
its obligations pursuant to Section 5.3.
Section 8.2. INDEMNIFICATION. The Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee in its individual
capacity and its successors, assigns, agents and servants, and any co-trustee
(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
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nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee or any Indemnified Party
in any way relating to or arising out of this Agreement, the Related Documents,
the Trust Assets, the administration of the Trust Assets or the action or
inaction of the Owner Trustee hereunder, except only that the Depositor shall
not be liable for or required to indemnify the Owner Trustee from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.1. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement.
Section 8.3. NON-RECOURSE OBLIGATIONS. Notwithstanding anything in
this Agreement or any Related Document, the Owner Trustee agrees in its
individual capacity and in its capacity as Owner Trustee for the Trust that all
obligations of the Trust to the Owner Trustee individually or as Owner Trustee
for the Trust shall be recourse to the Trust Assets only and specifically shall
not be recourse to the assets of any Equity Certificateholder.
ARTICLE IX
TERMINATION
Section 9.1. TERMINATION OF THE TRUST.
(a) The respective obligations and responsibilities of the Depositor
and the Owner Trustee created by this Agreement and the Trust created by this
Agreement shall terminate upon the earliest of (i) the maturity or other
liquidation of the last Contract (including the purchase by the Depositor at its
option of the corpus of the Trust as described in Section 5.1 of the Transfer
and Servicing Agreement or the liquidation of the Trust Assets pursuant to
Section 5.06 of the Indenture) and the subsequent distribution of amounts in
respect of such Contracts as provided in the Related Documents, (ii) the
circumstances described in subsection (b) below, or (iii) the payment to
Noteholders of all amounts required to be paid to them pursuant to the
Indenture, the payment to Equity Certificateholders of all amounts required to
be paid to them pursuant to this Agreement and the payment to the Cash
Collateral Account Lenders and the Depositor of all amounts due under the Cash
Collateral Account Agreement; PROVIDED, HOWEVER, that in no event shall the
trust created by this Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants living on the date of this
Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇ of the Commonwealth of Massachusetts; and PROVIDED,
FURTHER, that the rights to compensation and indemnification under Sections 8.1
and 8.2, respectively, shall survive the termination of the Trust. In any case,
there shall be delivered to the Owner Trustee, the Indenture Trustee and the
Rating Agencies an Opinion of Counsel that all applicable preference periods
under Federal, state and local bankruptcy, insolvency and similar laws have
expired with respect to the payments pursuant to clause (iii). The Servicer
shall promptly notify the Owner Trustee of any prospective termination
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pursuant to this Section 9.1. The bankruptcy, liquidation, dissolution,
termination, resignation, expulsion, withdrawal, death or incapacity of any
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) In the event of
(i) the commencement of an involuntary case in respect of
the Depositor under the Federal bankruptcy laws, as now or hereinafter in
effect, or another present or future Federal or state bankruptcy,
insolvency or similar law and such case is not dismissed within 60 days;
(ii) the entry of a decree or order for relief by a court or
regulatory authority having jurisdiction in respect of the Depositor in an
involuntary case under the Federal bankruptcy laws, as now or hereafter in
effect, or another present or future Federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor
or of any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor; or
(iii) the commencement by the Depositor of a voluntary case
under the Federal bankruptcy laws, as now or hereafter in effect, or any
other present or future Federal or state bankruptcy, insolvency or similar
law, or the consent by the Depositor to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or of any
substantial part of its property, or the making by the Depositor of an
assignment for the benefit of creditors, or the failure by the Depositor
generally to pay its debts as such debts become due, or the taking of
corporate action by the Depositor in furtherance of any of the foregoing;
then, after the Indenture Trustee, as required by Section 5.04 of the Indenture,
has foreclosed upon its security interest in the Trust Estate granted pursuant
to the Indenture, the respective obligations and responsibilities of the
Depositor, the Equity Certificateholders and the Owner Trustee created by this
Agreement and the Trust created by this Agreement shall terminate. All Persons
who were Equity Certificateholders on the date of such termination shall
thereupon be entitled to receive distributions directly from the Indenture
Trustee in the manner and order of priority specified in Section 5.06 of the
Indenture.
(c) Except as provided in Section 9.1(a), neither the Depositor nor
any Equity Certificateholder shall be entitled to revoke or terminate the Trust.
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(d) Within five Business Days of receipt of notice of termination of
the Trust given by the Servicer pursuant to Section 9.1(a) hereof or Section
5.1(b) of the Transfer and Servicing Agreement, the Owner Trustee shall mail
written notice to the Equity Certificateholders specifying (i) the Payment Date
upon which final payment of the Equity Certificates shall be made upon
presentation and surrender of Equity Certificates at the office of the Paying
Agent therein specified, (ii) the amount of any such final payment, and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Equity Certificates at the office of the Paying Agent therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar at the time
such notice is given to Equity Certificateholders. In the event such notice is
given, (i) the Indenture Trustee shall make deposits into the Equity Certificate
Distribution Account in accordance with Section 8.03 of the Indenture, or (ii)
in the case of an optional purchase of Contracts pursuant to Section 5.1 of the
Transfer and Servicing Agreement, the Indenture Trustee shall deposit the amount
specified in Section 5.1 of the Transfer and Servicing Agreement in the Equity
Certificate Distribution Account. Upon presentation and surrender of the Equity
Certificates, the Paying Agent shall cause to be distributed to Equity
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.2.
(e) In the event that all of the Equity Certificateholders shall not
surrender their Equity Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Owner Trustee shall
give a second written notice to the remaining Equity Certificateholders to
surrender their Equity Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Equity Certificates shall not have been surrendered for cancellation,
the Owner Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Equity Certificateholders concerning
surrender of their Equity Certificates, and the cost thereof shall be paid out
of the funds and other assets that remain subject to this Agreement. Any funds
which are payable to Equity Certificateholders remaining in the Trust after
exhaustion of such remedies shall be distributed by the Owner Trustee to The
United Way (but only upon termination of this Agreement), and the Equity
Certificateholders, by acceptance of their Equity Certificates, hereby waive any
rights with respect to such funds.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation (i) authorized to exercise corporate
trust powers; (ii) having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or State authorities; and
(iii) having (or having a parent which has) a long-term debt rating of at least
investment grade by Moody's,
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S&P, Fitch (if rated by Fitch) and Duff & ▇▇▇▇▇▇ (if rated by Duff & ▇▇▇▇▇▇).
If such corporation shall publish reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2.
Section 10.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor and the Servicer at least 30
days before the date specified in such instrument. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor Owner Trustee
meeting the qualifications set forth in Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee, provided that the
Depositor shall have received written confirmation from each of the Rating
Agencies that the proposed appointment will not result in a reduction,
qualification or withdrawal of the ratings then assigned to the Notes and the
Equity Certificates by such Rating Agency. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Depositor 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 Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the immediately preceding
sentence, the Depositor shall promptly appoint a successor Owner Trustee meeting
the qualification requirements of Section 10.1 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until all fees and expenses, including any indemnity
payments, due to the outgoing Owner Trustee have been paid and until acceptance
of appointment by the successor Owner Trustee pursuant to Section 10.3. The
Depositor shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
-33-
Section 10.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
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 deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
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 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Depositor shall mail notice of the successor of such Owner
Trustee to all Equity Certificateholders, the Indenture Trustee, the Noteholders
and the Rating Agencies. If the Depositor 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 Depositor.
Section 10.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Assets may at the time be located, the Owner Trustee shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Trust Assets, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
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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 10.1 and no notice of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
10.1.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any 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;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the 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.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. AMENDMENT.
(a) This Agreement may be amended by the Depositor and the Owner
Trustee, without the consent of any of the Equity Certificateholders or
Noteholders, but with prior notice to the Rating Agencies and the Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of the Trust
Assets;
(ii) to cure any ambiguity;
(iii) to correct or supplement any provision herein which may
be inconsistent with any other provision herein;
(iv) to make any other provisions with respect to matters or
questions arising under this Agreement, provided that such amendment shall
not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or Equity
Certificateholder; or
(v) to avoid a reduction, qualification or withdrawal of
any rating of the Notes or the Equity Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee with the consent of an Equity Certificate
Majority and, unless such amendment does not, as evidenced by an Opinion of
Counsel, materially and adversely affect the interests of Noteholders, the
consent of a Note Majority (which consent of any Holder of an Equity Certificate
or Note given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Equity Certificate or Note and of any Equity Certificate or Note
issued upon the transfer thereof or in exchange therefor or in lieu thereof
whether or not notation of such consent is made upon the Equity Certificate or
Note) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement, or of modifying in any
manner the rights of the Holders of Equity Certificates or Notes; PROVIDED,
HOWEVER, that no such amendment shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Contracts or distributions that shall be required to be made on any Equity
Certificate or Note, (ii) reduce the aforesaid percentage required to consent to
any such amendment or any waiver hereunder, without the consent of the Holders
of all Equity Certificates and Notes then outstanding, or (iii) result in a
reduction, qualification or withdrawal of the rating of the Notes or the Equity
Certificates.
-36-
(c) Prior to the execution of any such amendment or consent, the
Depositor shall furnish written notification of the substance of such amendment
or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Equity Certificateholder and the Indenture Trustee
unless such parties have previously received such notification.
(e) It shall not be necessary for the consent of Equity
Certificateholders or Noteholders pursuant to Section 11.1(b) to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Equity Certificateholders and
Noteholders provided for in this Agreement) and of evidencing the authorization
of the execution thereof by Equity Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe, including the
establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement or any
Related Document, the Owner Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment which affects
the Owner Trustee's own rights, duties or immunities under this Agreement or any
Related Document, or otherwise.
SECTION 11.2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 11.3. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Equity
Certificates or the rights of the Holders thereof.
Section 11.4. EQUITY CERTIFICATES NONASSESSABLE AND FULLY PAID.
Equity Certificateholders shall not, except as expressly provided for herein
with respect to the Depositor, be personally liable for obligations of the
Trust, the beneficial interests in the
-37-
Trust represented by the Equity Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and Equity
Certificates upon authentication thereof by or on behalf of the Owner Trustee
pursuant to Section 3.3 are and shall be deemed fully paid.
Section 11.5. THIRD-PARTY BENEFICIARIES. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Section 11.6. COUNTERPARTS. For the purpose of facilitating its
execution and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the same
instrument.
Section 11.7. NOTICES. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, or by facsimile, and shall be deemed to have been
duly given upon receipt (a) in the case of the Depositor, at the following
address: Antigua Funding Corporation, c/o AT&T Capital Corporation, ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, (b) in the case
of the Owner Trustee, at the Corporate Trust Office, and (c) in the case of each
Rating Agency, ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇; Standard & Poor's Ratings Services, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: Asset-Backed Surveillance; Fitch Investors Services, L.P., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Duff & ▇▇▇▇▇▇ Credit Rating Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or at such other address as shall be
designated by any such party in a written notice to the other parties.
Notwithstanding the foregoing, any notice required or permitted to be mailed to
an Equity Certificateholder shall be given by first class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register, and any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Equity
Certificateholder receives such notice.
-38-
IN WITNESS WHEREOF, the Depositor and the Owner Trustee have caused
this Trust Agreement to be duly executed by their respective officers as of the
day and year first above written.
ANTIGUA FUNDING CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. Laser
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. Laser
-------------------------------
Title: Assistant Vice President
-------------------------------
-39-
EXHIBIT A
[FORM OF EQUITY CERTIFICATE]
CAPITA EQUIPMENT RECEIVABLES TRUST 1996-1
6.75% EQUITY CERTIFICATE
evidencing a beneficial interest in the Trust, as defined below, the
property of which includes a pool of equipment leases, installment
sale contracts, promissory notes, loan and security agreements and
similar types of receivables, all transferred to the Trust by Antigua
Funding Corporation.
This Equity Certificate does not represent an obligation of, or an
interest in, Antigua Funding Corporation or any affiliate thereof.
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT UNDER
THE CIRCUMSTANCES SPECIFIED IN SECTION 3.4 OF THE
TRUST AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.4 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
Certificate No. ____
Denomination: $________
Cut-Off Date:
Aggregate Denomination of all
October 1, 1996
Equity Certificates: $127,509,329
First Payment Date: Interest Rate: 6.75%
November 15, 1996
Stated Maturity Date:
Servicer:
September 15, 2004
AT&T Capital Corporation
CUSIP: 13970L AF 9
A-2
THIS CERTIFIES THAT is the
registered owner of a nonassessable, fully-paid, beneficial interest in the
Capita Equipment Receivables Trust 1996-1 (the "Trust"). The Trust was created
pursuant to a Trust Agreement, dated as of October 1, 1996 (the "Trust
Agreement"), between Antigua Funding Corporation and The Bank of New York, not
in its individual capacity but solely as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement or the Indenture, dated as
of October 1, 1996 (the "Indenture"), between the Trust and The Chase Manhattan
Bank, as Indenture Trustee.
This Certificate is one of the duly authorized Certificates designated
as "6.75% Equity Certificates" (herein called the "Equity Certificates"). The
Trust has also issued, under the Indenture, Notes designated as 5.60%
Receivable-Backed Notes, Class A-1 (the "Class A-1 Notes"), 5.95%
Receivable-Backed Notes, Class A-2 (the "Class A-2 Notes") 6.11%
Receivable-Backed Notes, Class A-3 (the "Class A-3 Notes"), 6.28%
Receivable-Backed Notes, Class A-4 (the "Class A-4 Notes"), and 6.57%
Receivable-Backed Notes, Class B (the "Class B Notes" and, together with the
Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Notes"). This Equity
Certificate is issued under the Trust Agreement and is subject to the terms,
provisions and conditions of the Trust Agreement and the Indenture, to which
Trust Agreement and Indenture the holder of this Equity Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The property
of the Trust includes (as more fully described in the Trust Agreement) a pool of
equipment leases, installment sale contracts, promissory notes, loan and
security agreements and similar types of receivables (the "Contracts"), the
right to a portion of the Liquidation Proceeds arising from disposition of the
Equipment related to the Lease Contracts following default thereunder, certain
monies received thereunder after the Cut-Off Date, certain bank accounts,
proceeds from certain insurance policies and proceeds of all of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (the "Payment Date"), commencing on November 15, 1996 to the person
in whose name this Equity Certificate is registered at the close of business on
the Business Day immediately preceding such Payment Date (the "Record Date"),
such Certificateholder's fractional undivided interest in the sum of (a) the
Equity Certificate Interest Distributable Amount, (b) the Equity Certificate
Principal Distributable Amount, (c) any remaining Amount Available after
distribution of all other amounts payable on such Payment Date, to the extent of
the funds available therefor. As provided in the Indenture, interest hereon is
subordinated in right of payment to the payment of interest on the Notes, and
principal hereon is subordinated in right of payment to the payment of principal
on the Notes.
Each Equity Certificateholder, by its acceptance of an Equity
Certificate, covenants and agrees that such Equity Certificateholder will not at
any time institute
A-3
against the Depositor or join in any institution against the Depositor or the
Trust of 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
Equity Certificates, the Notes, the Trust Agreement or any of the Related
Documents.
Except as provided in the Trust Agreement, distributions on this
Equity Certificate will be made by the Owner Trustee either (i) by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, provided that such
Equity Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Payment Date and such Holder's Equity Certificates in the aggregate evidence an
initial denomination of not less than $10,000,000 (or if such Certificateholder
is the Revolving Trust Trustee or its nominee, the Depository Trust Company or
its nominee, or the Depositor or an Affiliate thereof), or (ii) if not, by check
mailed to such Equity Certificateholder at the address of such Holder appearing
in the Certificate Register. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Equity
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 Equity
Certificate at the office or agency maintained for that purpose by the Owner
Trustee. The Record Date otherwise applicable to distributions shall not be
applicable to such final distribution.
The Equity Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee or any Affiliate of
any of them. The Equity Certificates are limited in right of payment to certain
collections and recoveries respecting the Contracts, all as more specifically
set forth in the Trust Agreement and the Indenture. A copy of the Trust
Agreement and the Indenture may, upon request, be examined by any Equity
Certificateholder during normal business hours at the principal office of the
Depositor and at such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Equity Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee. In certain
limited circumstances, the Trust Agreement may only be amended with the consent
of the Holders of Equity Certificates evidencing not less than a majority of the
Equity Certificate Balance and, in certain circumstances, 100% of the Equity
Certificate Balance. Any such consent by the Holder of this Equity Certificate
shall be conclusive and binding on such Holder and on all future Holders of this
Equity Certificate and of any Equity Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such consent
is made upon this Equity Certificate.
A-4
Under the limited circumstances specified in Section 3.4 of the Trust
Agreement, the transfer of this Equity Certificate is registrable in the
Certificate Register upon surrender of this Equity Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in New York, New York accompanied by a written instrument
of transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Equity Certificates of
authorized denominations evidencing the same aggregate beneficial interest in
the Trust of the same class will be issued to the designated transferee. Under
such circumstances, the Equity Certificates are issuable only as registered
Certificates without coupons in denominations of $250,000 initial principal
amount and integral multiples of $1,000 thereof, and Equity Certificates are
exchangeable for new Equity Certificates of authorized denominations of a like
aggregate initial principal amount, as requested by the Holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee may require payment of a sum sufficient to cover
any tax or governmental charges payable in connection therewith. The initial
Certificate Registrar appointed under the Trust Agreement is The Bank of New
York.
The Equity Certificates may not be acquired by (a) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title 1 of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding
this Equity Certificate, the Holder hereof shall be deemed to have represented
and warranted that it is not a Benefit Plan.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the person in whose name
this Equity Certificate is registered as the owner hereof for the purpose of
receiving distributions and for all other purposes, and neither the Owner
Trustee, the Certificate Registrar nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and Trust created thereby shall terminate upon the payment to Equity
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the disposition of all property held as part of the Trust.
The Depositor may at its option purchase the corpus of the Trust at a price
specified in the Transfer and Servicing Agreement, and such purchase of the
Contracts and other property of the Trust will effect early retirement of the
Equity Certificates; provided, however, such right of purchase is exercisable
only as of a Record Date as of which the aggregate principal balance of the
Notes and the Equity Certificates is less than 10% of the Initial Contract Pool
Principal Balance.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
A-5
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Equity Certificate or
of any Contract or related document.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual or facsimile
signature, this Equity Certificate shall not entitle the holder hereof to any
benefit under the Trust Agreement or the Transfer and Servicing Agreement or be
valid for any purpose.
A-6
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not
in its individual capacity has caused this Equity Certificate to be duly
executed.
Dated: October 15, 1996 CAPITA EQUIPMENT RECEIVABLES TRUST
1996-1
By: THE BANK OF NEW YORK, not in
its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 6.75% Equity Certificates of Capita Equipment
Receivables Trust 1996-1 referred to in the within-mentioned Trust Agreement.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
----------------------------------
Signature Guaranteed:
*
----------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-8
EXHIBIT B
FORM OF REPRESENTATION LETTER
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Antigua Funding Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
RE: Capita Equipment Receivables Trust 1996-1
Equity Certificates
The undersigned purchaser (the "Purchaser") understands that the
purchase of the above-referenced certificates (the "Certificates") may be made
only by (a) institutions which are "Accredited Investors" under Rule 501(a)(1),
(2), (3) or (7) of Regulation D, as promulgated under the Securities Act of
1933, as amended (the "1933 Act"), or an entity in which all of the equity
owners meet such requirements, which includes banks, savings and loan
associations, registered brokers and dealers, insurance companies, investment
companies, and organizations described in Section 501(c)(3) of the Internal
Revenue Code, corporations, business trusts and partnerships, not formed for the
specific purpose of acquiring the Certificates offered, with total assets in
excess of $5,000,000, or (b) "Qualified Institutional Buyers" under Rule 144A,
as promulgated under the 1933 Act. The undersigned represents on behalf of the
Purchaser that the Purchaser is an "Accredited Investor" or a "Qualified
Institutional Buyer" within the meaning of such definitions. The Purchaser is
urged to review carefully the responses, representations and warranties it is
making herein.
REPRESENTATIONS AND WARRANTIES
The Purchaser makes the following representations and warranties in
order to permit the Owner Trustee and the Depositor to determine its suitability
as a purchaser of Certificates and to determine that the exemption from
registration relied upon by the Depositor under Section 4(2) of the 1933 Act is
available to it.
1. The Purchaser understands that the Certificates have not been and
will not be registered under the 1933 Act and may be resold (which resale is not
currently contemplated) only if registered pursuant to the provisions of the
1933 Act or if an exemption from registration is available, that the Depositor
is not required to register the Certificates and that any transfer must comply
with Section 3.4 of the Trust Agreement relating to the Certificates.
2. The Purchaser will comply with all applicable Federal and state
securities laws in connection with any subsequent resale of the Certificates.
B-1
3. The Purchaser is a sophisticated institutional investor and has
knowledge and experience in financial and business matters and is capable of
evaluating the merits and risks of its investment in the Certificates and is
able to bear the economic risk of such investment.
4. The Purchaser is acquiring the Certificates as principal for its
own account (or for the account of one or more other institutional investors for
which it is acting as duly authorized fiduciary or agent) for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, subject nevertheless to any requirement of law that the
disposition of the Purchaser's property shall at all times be and remain within
its control.
5. The Purchaser does not qualify as (i) an employee benefit plan (a
"Plan") as defined in section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), whether or not it is subject to the
provisions of Title I of ERISA, (ii) a plan described in section 4975(e)(1) of
the Internal Revenue Code of 1986 (also a "Plan"), or (iii) an entity whose
underlying assets are deemed to be assets of a Plan by reason of such Plan's
investment in the entity (as determined under Department of Labor Regulations,
29 C.F.R. Section 2510.3-101 (1990)).
6. The Purchaser understands that such Certificate will bear a
legend substantially as set forth in the form of Certificate included in the
Trust Agreement.
7. The Purchaser agrees that it will obtain from any purchaser of
the Certificates from it the same representations, warranties and agreements
contained in the foregoing paragraphs 1 through 6 and in this paragraph 7.
The representations and warranties contained herein are made for your
benefit and shall be binding upon the heirs, executors, administrators and other
successors of the undersigned. If there is more than one signatory hereto, the
obligations, representations, warranties and agreements of the undersigned are
made jointly and severally.
Executed at _______________, ________________, this _________ day of
____________, ________.
Purchaser's Name (Print)
By
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Signature
Its
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B-2
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Address of Purchaser
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Purchaser's Taxpayer
Identification Number
B-3