EXHIBIT 99.4
--------------------------------------------------------------------------------
TRUST AGREEMENT
between
OAK LEAF HOLDINGS, LLC,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
--------------------------------------------------------------------------------
Dated as of February 9, 2001
OMI Note Trust 2001-A
- 1 -
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................4
SECTION 1.1 CAPITALIZED TERMS...........................................................................4
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS...............................................................7
ARTICLE II ORGANIZATION...........................................................................................8
SECTION 2.1 NAME........................................................................................8
SECTION 2.2 OFFICE......................................................................................8
SECTION 2.3 PURPOSE AND POWERS..........................................................................8
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE................................................................9
SECTION 2.5 INITIAL CAPITAL CONTRIBUTION OF THE OWNER TRUST ESTATE......................................9
SECTION 2.6 DECLARATION OF TRUST........................................................................9
SECTION 2.7 LIABILITY OF THE HOLDERS...................................................................10
SECTION 2.8 TITLE TO TRUST PROPERTY....................................................................10
SECTION 2.9 SITUS OF TRUST.............................................................................10
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR............................................10
SECTION 2.11 FEDERAL INCOME TAX ALLOCATIONS.............................................................11
ARTICLE III THE CERTIFICATES.....................................................................................11
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP..............................................................11
SECTION 3.2 FORM OF THE CERTIFICATES...................................................................11
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY.....................................................12
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES........................12
SECTION 3.5 MUTILATED; DESTROYED; LOST OR STOLEN CERTIFICATES..........................................13
SECTION 3.6 PERSONS DEEMED HOLDERS.....................................................................14
SECTION 3.7 ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSEES............................................14
SECTION 3.8 MAINTENANCE OF OFFICE FOR SURRENDERS.......................................................14
SECTION 3.9 APPOINTMENT OF TRUST PAYING AGENT..........................................................15
SECTION 3.10 RESTRICTION ON TRANSFERS OF CERTIFICATE....................................................15
SECTION 3.11 DUTIES OF THE TRUST PAYING AGENT...........................................................18
SECTION 3.12 PROTECTION OF THE CERTIFICATE REGISTRAR....................................................18
ARTICLE IV ACTIONS BY OWNER TRUSTEE..............................................................................19
SECTION 4.1 PRIOR NOTICE TO OWNERS WITH RESPECT TO CERTAIN MATTERS.....................................19
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS. THE.........................20
SECTION 4.3 ACTION BY HOLDERS WITH RESPECT TO BANKRUPTCY...............................................20
SECTION 4.4 RESTRICTIONS ON HOLDERS' POWER.............................................................20
SECTION 4.5 MAJORITY CONTROL...........................................................................20
ARTICLE V APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES......................................................21
SECTION 5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT..........................................21
SECTION 5.2 APPLICATION OF TRUST FUNDS.................................................................21
SECTION 5.3 METHOD OF PAYMENT..........................................................................22
SECTION 5.4 SEGREGATION OF MONEYS; NO INTEREST.........................................................22
SECTION 5.5 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS..22
SECTION 5.6 SIGNATURE ON RETURNS; TAX MATTERS PARTNER..................................................22
ARTICLE VI AUTHORITY AND DUTIES OF THE OWNER TRUSTEE.............................................................23
SECTION 6.1 GENERAL AUTHORITY..........................................................................23
SECTION 6.2 GENERAL DUTIES.............................................................................23
-2-
SECTION 6.3 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS..............................................23
SECTION 6.4 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE OPERATIVE DOCUMENTS OR IN
INSTRUCTIONS. .............................................................................24
SECTION 6.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.................................25
SECTION 6.6 RESTRICTIONS...............................................................................25
ARTICLE VII CONCERNING THE OWNER TRUSTEE.........................................................................25
SECTION 7.1 ACCEPTANCE OF TRUSTS AND DUTIES............................................................25
SECTION 7.2 FURNISHING OF DOCUMENTS....................................................................27
SECTION 7.3 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE............................................27
SECTION 7.4 RELIANCE; ADVICE OF COUNSEL................................................................28
SECTION 7.5 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES...............................................28
SECTION 7.6 LICENSES...................................................................................29
ARTICLE VIII COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE AND ITS AGENTS....................................29
SECTION 8.1 OWNER TRUSTEE'S FEE AND EXPENSES...........................................................29
SECTION 8.2 INDEMNIFICATION OF THE OWNER TRUSTEE.......................................................29
SECTION 8.3 PAYMENTS TO THE OWNER TRUSTEE..............................................................30
SECTION 8.4 INDEMNIFICATION OF THE CERTIFICATE REGISTRAR AND TRUST PAYING AGENT........................30
ARTICLE IX TERMINATION OF TRUST AGREEMENT........................................................................31
SECTION 9.1 TERMINATION OF TRUST AGREEMENT.............................................................31
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.................................................32
SECTION 10.1 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.................................................32
SECTION 10.2 RESIGNATION OR REMOVAL OF OWNER............................................................32
SECTION 10.3 SUCCESSOR OWNER TRUSTEE....................................................................33
SECTION 10.4 MERGER OR CONSOLIDATION OF OWNER TRUSTEE...................................................33
SECTION 10.5 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..............................................33
ARTICLE XI MISCELLANEOUS.........................................................................................35
SECTION 11.1 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND OWNERS OF THE NOTES......................35
SECTION 11.2 FORM OF AMENDMENTS.........................................................................35
SECTION 11.3 NO LEGAL TITLE TO OWNER TRUST ESTATE.......................................................35
SECTION 11.4 LIMITATIONS ON RIGHTS OF OTHERS............................................................36
SECTION 11.5 NOTICES....................................................................................36
SECTION 11.6 SEVERABILITY...............................................................................36
SECTION 11.7 COUNTERPARTS...............................................................................37
SECTION 11.8 SUCCESSORS AND ASSIGNS.....................................................................37
SECTION 11.9 NO PETITION COVENANT.......................................................................37
SECTION 11.10 NO RECOURSE................................................................................37
SECTION 11.11 HEADINGS...................................................................................38
SECTION 11.12 GOVERNING LAW..............................................................................38
SECTION 11.13 INTEGRATION................................................................................38
-3-
TRUST AGREEMENT, dated as of February 9, 2001, between OAK LEAF
HOLDINGS, LLC, a Delaware limited liability company (the "Depositor") and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity but solely as Owner Trustee (the "Owner Trustee").
The Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Capitalized Terms.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Agreement" shall mean this Trust Agreement, as the same may be amended
and supplemented from time to time.
"Bankruptcy Action" shall have the meaning assigned to such term in
Section 4.1 hereof.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of I the
Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be amended
from time to time.
"Certificate" shall mean a certificate evidencing the beneficial
interest of a Certificate holder in the Trust, substantially in the form
attached hereto as Exhibit B.
"Certificate Distribution Account" shall have the meaning assigned to
such term in Section 5.1.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit A to be filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register described and the registrar appointed pursuant to Section 3.4.
"Certificateholder" or "Holder" shall mean a Person in whose name a
Certificate is registered.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
-4-
"Corporate Trust Office" shall mean, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other address in the State of Delaware as the Owner Trustee may designate by
notice to the Owners and the Depositor, or the principal corporate trust office
of any successor Owner Trustee (the address (which shall be in the State of
Delaware) of which the successor owner trustee will notify the Owners, the
Holders and the Depositor).
"Custodial Agreement" shall mean the Custodial Agreement, dated as of
the date hereof, among the Indenture Trustee, the Issuer, the Custodian, the
Seller, the Servicer and the Note Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Custodian" shall mean The Chase Manhattan Bank and its successors and
assigns as Custodian under the Custodial Agreement.
"Depositor" shall mean Oak Leaf Holdings, LLC, a Delaware limited
liability company.
"Expenses" shall have the meaning assigned to such term in Section 8.2.
"Indenture" shall mean the Indenture, dated as of the date hereof,
between the Issuer and the Indenture Trustee relating to the OMI Note Trust
2001-A Asset Backed Notes, Series 2001-A, issued by the Issuer, as the same may
be amended, supplemented or otherwise modified from time to time.
"Indenture Trustee" shall mean The Chase Manhattan Bank and its
successors and assigns as Indenture Trustee under the Indenture.
"Issuer" shall mean OMI Note Trust 2001-A, the Delaware business trust
created pursuant to this Agreement.
"Non-permitted Foreign Holder" shall have the meaning set forth in
Section 3.10.
"Non-U.S. Person" shall mean an individual, corporation, partnership or
other Person other than a citizen or resident of the United States, a
corporation or partnership (or any other entity treated as a corporation or as a
partnership for federal income tax purposes) created or organized in or under
the laws of the United States or any political subdivision thereof, an estate
that is subject to U.S. federal income tax regardless of the source of its
income, a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust and one or more United States
fiduciaries have the authority to control all substantial decisions of the
trust.
"Note" shall mean an Asset Backed Note, Series 2001-A, issued by the
Issuer pursuant to the Indenture.
"Note Agent" shall mean Credit Suisse First Boston, New York Branch and
its successors and assigns as "Agent" under the Note Purchase Agreement.
-5-
"Note Purchase Agreement" shall mean the Note Purchase Agreement dated
as of February 9, 2001, among the Depositor, the Transferor, the Trust, the
Seller, the Servicer, the purchasers parties thereto and Credit Suisse First
Boston, New York Branch, as agent, as the same may be amended, supplemented or
otherwise modified from time to time.
"Operative Documents" shall mean this Agreement, the Indenture, the
Sale and Servicing Agreement, the Certificate of Trust, the Note Purchase
Agreement (including the related Fee Letter), the Custodial Agreement and the
Notes.
"Owner" shall mean each holder of a Note.
"Owner Trust Estate" shall mean the Trust Estate (as defined in the
Indenture), including the contribution of $1 referred to in Section 2.5 hereof.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor owner trustee hereunder.
"Owner Trustee Fee" shall mean the fees payable to the Owner Trustee
for its services as owner trustee of the Trust, as provided in the fee agreement
between the Owner Trustee and the Seller.
"Percentage Interest" shall mean with respect to each Certificate, the
percentage portion of all of the Certificates evidenced thereby as stated on the
face of such Certificate, and, with respect to any Note, the outstanding
principal amount of such Note as a percentage of the aggregate outstanding
principal amount of all Notes.
"Prospective Holder" shall have the meaning set forth in Section
3.10(a).
"Record Date" shall mean, as to each Payment Date, the third Business
Day immediately preceding such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of the date hereof, among the Issuer, the Depositor, the
Transferor, the Seller, the Servicer, the Custodian, the Backup Servicer and the
Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Seller" shall mean Oakwood Acceptance Corporation, a North Carolina
corporation.
"Servicer" shall mean Oakwood Acceptance Corporation, a North Carolina
corporation, or any successor servicer under the Sale and Servicing Agreement.
"Transferor" shall mean Ginkgo Corporation, a Delaware corporation.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
-6-
"Trust" shall mean the trust established by this Agreement.
"Trust Paying Agent" shall mean The Chase Manhattan Bank or any
successor in interest thereto or any other paying agent or co-paying agent
appointed pursuant to Section 3.9 and authorized by the Issuer to make payments
to and distributions from the Certificate Distribution Account, including
payment of principal of or interest on the Certificates on behalf of the Issuer.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Sale and Servicing Agreement or, if
not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
-7-
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created hereby shall be known as "OMI Note Trust 2001-A", in
which name the Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be
sued on behalf of the Trust.
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 in Delaware as the Owner Trustee
may designate by written notice to the Certificateholders, the Owners and the
Depositor.
SECTION 2.3 Purpose and Powers.
The purpose of the Trust is to engage in the following activities:
(i) to acquire from time to time certain contracts and mortgage
loans, whether constituting an account, chattel paper, instrument, mortgage,
deed of trust or general intangible, arising out of or in connection with the
sale of manufactured housing or mobile homes including the rendering of services
by the originating dealer in connection therewith, and including the right of
payment of finance charges and other obligations of the obligors with respect
thereto, and all monies due and to become due thereunder pursuant to the Sale
and Servicing Agreement;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, to receive the initial capital
contribution and subsequent contributions to the Owner Trust Estate, and to
sell, transfer or exchange the Notes and Certificates pursuant to the Note
Purchase Agreement and this Agreement;
(iii) to make borrowings under the Notes and to pay or cause to be
paid the principal and interest, if any, on the Notes in accordance with the
terms of the Notes pursuant to the Indenture;
(iv) to receive contributions under the Certificates and return
capital to the Certificateholders from time to time;
(v) with the proceeds of the sale of the Notes and the
Certificates, to pay the organizational, start-up and transactional expenses of
the Trust and to pay the balance to the Depositor, pursuant to the Sale and
Servicing Agreement;
(vi) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate pursuant to the terms of the Indenture and to hold, manage
and distribute to the Certificateholders pursuant to the terms of the Sale and
Servicing Agreement any portion of the Owner Trust Estate released from the lien
of, and remitted to the Trust pursuant to, the Indenture;
-8-
(vii) to enter into and perform its obligations under the Operative
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 Operative Documents, to engage
in such other activities as may be required in connection with conservation of
the assets of the Trust and the making of distributions to the
Certificateholders and the Owners of the Notes.
The Trust is hereby authorized to engage in the foregoing activities
and shall not engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement or the
other Operative Documents.
SECTION 2.4 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. The Owner Trustee hereby accepts its appointment subject to the
terms and conditions hereof.
SECTION 2.5 Initial Capital Contribution of the Owner Trust Estate.
(a) The Depositor hereby sells, assigns, transfers, conveys and sets
over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution which shall constitute the initial Owner
Trust Estate and shall be deposited in the Certificate Distribution Account.
(b) On any date following the Closing Date and for so long as the
Trust is in existence, any Certificateholder may elect to make a subsequent
contribution to the Trust Estate, whether in kind or in cash.
SECTION 2.6 Declaration of Trust.
The Owner Trustee hereby declares that it shall hold the Owner Trust
Estate in trust upon and subject to the conditions set forth herein for the use
and benefit of the Certificateholders, subject to the obligations of the Trust
under the Operative Documents. It is the intention of the parties hereto that
the Trust shall constitute a business trust under the Business Trust Statute and
that this Agreement shall constitute the governing instrument of such business
trust. It is the intention of the parties hereto that, for federal and state
income and state and local franchise tax purposes, the Trust shall not be
treated as (i) an association subject separately to taxation as a corporation,
(ii) a "publicly traded partnership" as defined in Treasury Regulation Section
1.7704-1 or (iii) a "taxable mortgage pool" as defined in Section 7701(i) of the
Code, and that the Notes shall be debt, and the provisions of this Trust
Agreement shall be interpreted to further this intention. Except as otherwise
provided in this Trust Agreement, the rights of the Certificateholders will be
those of equity owners of the Trust. Effective as of the date hereof, the Owner
Trustee shall have the rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee shall file the
-9-
Certificate of Trust pursuant to the Business Trust Statute with the Secretary
of State.
SECTION 2.7 Liability of the Holders.
No Certificateholder shall have any personal liability for any
liability or obligation of the Trust. Upon issuance, the Certificates shall be
fully paid and nonassessable.
SECTION 2.8 Title to Trust Property.
(a) Subject to the Indenture, legal title to all of the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any part of
the Owner Trust Estate. No transfer by operation of law or otherwise of any
interest of the Certificateholders shall operate to terminate this Agreement or
the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of any part of the Owner Trust Estate.
SECTION 2.9 Situs of Trust.
The Trust shall be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of Delaware, the State of New York or the State of North
Carolina. The Trust shall not have any employees; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments shall be received by
the Trust only in Delaware, New York or the State of North Carolina, and
payments will be made by the Trust only from Delaware, New York or the State of
North Carolina. The only office of the Trust shall be the Corporate Trust Office
in Delaware.
SECTION 2.10 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly existing as a
limited liability company 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 presently owned and such business is presently
conducted.
(b) The Depositor is duly qualified to do business, and has obtained
all necessary licenses and approvals in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualifications.
(c) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust, and the Depositor has duly authorized such sale and
assignment to the Trust by all necessary action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Depositor by all
necessary action.
-10-
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under, the limited liability
company agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Operative Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
any of its properties.
(e) There are no proceedings or investigations pending or threatened
by notice received in writing before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Depositor or its properties: (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement.
(f) The representations and warranties of the Depositor in Section 2.1
of the Sale and Servicing Agreement are true and correct.
(g) The Trust is not required to register as an investment company
under the Investment Company Act of 1940, as amended, and is not under the
control of a Person required to so register.
SECTION 2.11 Federal Income Tax Allocations.
Net income of the Trust for any month, as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof), shall be allocated to the Certificateholders, pro
rata.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership.
Upon the formation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and until the issuance of the Certificates, the
Depositor shall be the sole beneficial owner of the Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be issued without a principal amount. The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized signatory of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed,
-11-
authorized to sign on behalf of the Trust shall be valid, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(b) The Certificates shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) all as determined by the authorized signatory of the Owner
Trustee or the Owner Trustee's authenticating agent executing such Certificates,
as evidenced by their execution of such Certificates.
(c) A transferee of a Certificate shall become a Certificateholder,
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery.
Concurrently with the initial sale of the Receivables by the Depositor
to the Trust pursuant to the Sale and Servicing Agreement, the Owner Trustee
shall execute the Certificates representing 100% of the Percentage Interests of
the Trust, and shall deliver to or upon the written order of the Depositor,
signed by an Authorized Officer of the Depositor, without further action by the
Depositor. No Certificate shall entitle its Holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit B, executed by the Certificate Registrar, by manual or facsimile
signature. Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4 Registration; Registration of Transfer and Exchange of Certificates.
The Depositor hereby appoints the Owner Trustee as the initial
Certificate Registrar. The Certificate Registrar shall cause to be kept at its
Corporate Trust Office or its agency for such purpose, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, it shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon any resignation of the Certificate
Registrar, the Owner Trustee shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Certificate Registrar.
Subject to Section 3.10, upon surrender for registration of transfer of
any Certificate at the office or agency of the Owner Trustee maintained pursuant
to Section 3.8, the Owner Trustee shall execute, and the Certificate Registrar
shall authenticate and deliver in the name of the designated transferee or
transferees, a new Certificate or Certificates of the same Percentage Interest
and dated the date of authentication by the Certificate Registrar.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of a like aggregate Percentage Interest, upon surrender of
the Certificates to be exchanged at such office or agency. Whenever any
Certificates are so surrendered for exchange, the Owner Trustee
-12-
shall execute and deliver new Certificates to the Certificate Registrar who
shall authenticate the Certificates which the Certificateholder making the
exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but 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 registration of transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be marked "canceled" by the Certificate Registrar and shall be disposed of
or retained in accordance with usual and customary procedures for such purpose.
The preceding provisions of this Section notwithstanding, the Owner
Trustee need not make, and the Certificate Registrar shall not register
transfers or exchanges of Certificates for the period between any Record Date
and the related due date for any scheduled payment with respect to the
Certificates.
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Certificate Registrar shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a replacement Certificate of a like Percentage Interest;
provided, however, that if any such destroyed, lost or stolen Certificate, but
not a mutilated Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement Certificate the Owner Trustee
may pay such destroyed, lost or stolen Certificate when so due or payable.
(b) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee or the Certificate Registrar may
require the payment by the Holder of such Certificate of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Owner Trustee and the Certificate Registrar) connected therewith.
(c) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
(d) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
-13-
In connection with the issuance of any new Trust Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Certificate issued pursuant
to this Section shall constitute conclusive evidence of the ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time. If, after the delivery of a
replacement Trust Certificate pursuant to this Section, a protected purchaser of
the original Trust Certificate in lieu of which such replacement Trust
Certificate was issued presents for payment such original Trust Certificate, the
Trust shall be entitled to recover such replacement Trust Certificate (and any
distributions made with respect thereto) from the Person, except a protected
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Owner Trustee or Certificate Registrar in connection therewith.
SECTION 3.6 Persons Deemed Holders.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Owner Trustee, the Certificate Registrar or any
Trust Paying Agent may treat the Person in whose name any Certificate shall be
registered in the Certificate Registrar as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article V and for all other
purposes whatsoever, and none of the Depositor, the Owner Trustee, the
Certificate Registrar or the Trust Paying Agent shall be affected by any notice
to the contrary.
SECTION 3.7 Access to List of Holders' Names and Addressees.
The Certificate Registrar shall furnish or cause to be furnished to the
Servicer, the Depositor, the Owner Trustee and the Trust Paying Agent, within
five Business Days after receipt by the Certificate Registrar of a request
therefor from the Servicer, the Depositor, the Owner Trustee or the Trust Paying
Agent in writing, a list, in such form as the Servicer, the Depositor, the Owner
Trustee or the Trust Paying Agent may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date or as of
the date of such request, as the case may be. If three or more
Certificateholders or one or more Holders of Certificates together evidencing a
Percentage Interest totaling not less than 25% apply in writing to the
Certificate Registrar, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then the
Certificate Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar, the Owner Trustee or any other Person
accountable by reason of the disclosure of its name and address, regardless of
the source from which information was derived.
SECTION 3.8 Maintenance of Office For Surrenders
The Certificate Registrar shall maintain an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange. The Certificate
-14-
Registrar initially designates the Corporate Trust Office as its principal
office for such purposes. The Certificate Registrar shall give prompt written
notice to the Owner Trustee, the Depositor and the Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Trust Paying Agent.
The Owner Trustee hereby appoints The Chase Manhattan Bank as the Trust
Paying Agent under this Agreement. The Trust Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2(a) and shall report the amounts of such distributions to
the Owner Trustee and the Depositor. The Trust Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account for
the purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Trust Paying Agent if the Owner Trustee
determines that the Trust Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. If The Chase Manhattan
Bank shall no longer be the Trust Paying Agent, the Depositor shall appoint a
successor to act as Trust Paying Agent acceptable to the Seller. The Depositor
shall cause such successor Trust Paying Agent to execute and deliver to the
Depositor and the Owner Trustee an instrument in which such successor Trust
Paying Agent shall agree with the Owner Trustee that as Trust Paying Agent, such
successor Trust Paying Agent shall hold all sums, if any, held by it for payment
to the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Holders. The Trust Paying
Agent shall return all unclaimed funds to the Trust and upon removal of a Trust
Paying Agent such Trust Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Article VI shall apply to the Trust
Paying Agent in its role as the same, for so long as it shall act as Trust
Paying Agent and, to the extent applicable, to any other Trust Paying Agent as
appointed hereunder. Any reference in this Agreement to the Trust Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 3.10 Restriction on Transfers of Certificate.
(a) Each prospective purchaser and any subsequent transferee of a
Certificate (each, a "Prospective Holder") shall represent and warrant, in
writing, to the Owner Trustee and the Certificate Registrar and any of their
respective successors that:
(i) Such Person is one of the following: (A) an "institutional
accredited investor" (an entity meeting the requirements of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
investment in the Certificate, and such Person is acquiring the Certificate for
its own account or for one or more institutional accredited investors for whom
it is authorized to act, (B) a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act that understands that the
transferor may be relying on the exemption from the registration requirements of
the Securities Act provided by Rule 144A; and that is acquiring the Certificate
for its own account or for the account of one or more qualified institutional
buyers for whom it is authorized to act or (C) a Person involved in the
organization or operation of the Trust or an affiliate of such Person within the
meaning of Rule 3a-7 of the Investment Company Act of
-15-
1940, as amended (including, but not limited to, the Depositor, the Transferor,
the Seller or the Servicer).
(ii) Such Person understands that the Certificate has not been and
will not be registered under the Securities Act and may be offered, sold,
pledged or otherwise transferred only to a Person whom the transferor reasonably
believes is (A) an "institutional accredited investor" or a "qualified
institutional buyer" in a transaction that is exempt from the registration
requirements of the Securities Act pursuant to Rule 144A, (B) a Person involved
in the organization or operation of the Trust or an affiliate of such Person, or
(C) in a transaction that is registered or qualified under the Securities Act
and any applicable "blue sky" or other securities laws of any state of the
United States or that is exempt from the registration requirements of the
Securities Act and such laws.
(iii) Such Person understands that the Certificate bears a legend
to the following effect:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED
OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER
HEREOF ONLY TO (I) AN "INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT,
IN A TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE
TRUST OR AN AFFILIATE OF SUCH PERSON WITHIN THE MEANING OF RULE 3a-7 OF
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT
LIMITED TO THE DEPOSITOR) OR (III) IN A TRANSACTION THAT IS REGISTERED
OR QUALIFIED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS.
NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR
ANY STATE SECURITIES LAWS."
Notwithstanding the foregoing, any proposed transfer of a Certificate
shall require the written consent of the Note Agent (such consent not to be
unreasonably withheld).
(b) Each Prospective Holder, other than the Depositor, the Transferor,
the Seller, the Servicer and their respective Affiliates, shall either:
(i) represent and warrant, in writing, to the Depositor, the Owner
Trustee and the Certificate Registrar and any of their respective successors
that the Prospective Holder is not an "employee benefit plan" within the meaning
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the
Code (any such plan or employee benefit plan, a "Plan") and is not
-16-
directly or indirectly purchasing such Certificate on behalf of, as investment
manager of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) furnish to the Depositor, the Owner Trustee and the
Certificate Registrar and any of their respective successors an opinion of
counsel acceptable to such persons that (A) the proposed issuance or transfer of
the Certificate to such Prospective Holder will not cause any assets of the
Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of
the Certificate will not cause the Depositor, the Seller, the Transferor, the
Servicer, the Note Agent, the Owner Trustee, the Certificate Registrar or any of
their respective successors to be a fiduciary of a Plan within the meaning of
Section 3(21) of ERISA and will not give rise to a transaction described in
Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or
administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees
and acknowledges that no legal or beneficial interest in all or any portion of
any Certificate may be transferred directly or indirectly to (i) an entity that
holds residual securities as nominee to facilitate the clearance and settlement
of such securities through electronic book-entry changes in accounts of
participating organizations (a "Book-Entry Nominee"), or (ii) an individual,
corporation, partnership or other Person unless such transferee is not a
Non-U.S. Person (any such Person being referred to herein as a "Non-permitted
Foreign Holder"), and any such purported transfer shall be void and have no
effect.
(d) The Owner Trustee shall not execute, and shall not countersign and
deliver, a Certificate in connection with any transfer thereof unless the
transferor shall have provided to the Owner Trustee an IRS Form W-9 (or
applicable successor form), and a certificate, signed by the transferee, that it
is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate
shall contain the consent of the transferee to any amendments of this Agreement
as may be required to effectuate further the foregoing restrictions on transfer
of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and
an agreement by the transferee that it will not transfer a Certificate without
providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the
restrictions contained in paragraph (b) above.
(f) No offer, sale, transfer, pledge, hypothecation or other
disposition (including any pledge or transfer under a repurchase transaction or
securities loan) of any Certificate shall be made to any entity unless, prior to
such disposition, the Prospective Holder delivers to the Owner Trustee and the
Certificate Registrar an opinion of counsel, rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization, to the effect that such transfer (including any disposition
permitted following any default under any pledge or repurchase transaction) will
not cause the Trust to be (i) treated as an association taxable as a corporation
for federal income tax purposes, (ii) taxable as a "taxable mortgage pool" as
defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded
partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding
the foregoing, the provisions of this paragraph shall not apply to the initial
issuance of the Certificates to the Depositor.
-17-
SECTION 3.11 Duties of the Trust Paying Agent.
The duties and obligations of the Trust Paying Agent shall be
determined solely by the express provisions of this Agreement. The Trust Paying
Agent shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement or as set forth in a
written amendment to this Agreement executed by the parties hereto or their
successors or assigns. Without limiting the generality of the foregoing, the
Trust Paying Agent:
(a) shall use the same degree of care and skill as is reasonably
expected of Persons acting in comparable capacities;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, genuineness, ownership
or transferability of any Certificates, the Notes or the Assets represented
thereby, and will not be required to and will not make any representations as to
the validity, sufficiency, value or genuineness of the Certificates, the Notes
or the Receivables;
(c) shall not be obligated to take any legal action hereunder that
might in its judgment involve any expense or liability unless it has been
furnished with reasonable indemnity;
(d) may rely on and shall be protected in acting in good faith upon
any certificate, instrument, opinion, notice, letter, telegram or other
document, or any security, delivered to it and in good faith believed by it to
be genuine and to have been signed by the proper party or parties;
(e) may rely on and shall be protected in acting in good faith upon
the written instructions of the Owner Trustee, the Depositor, the Seller, the
Servicer, the Indenture Trustee, the Note Agent, the Certificateholders and
their respective designees, as indicated herein;
(f) may consult counsel satisfactory to it and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by it hereunder in good faith and in
furtherance of its duties hereunder, in accordance with the opinion of such
counsel;
(g) shall not be liable for any error of judgment, or for any act done
or step taken or omitted by it, in good faith, or for any mistake of fact or
law, or for anything that it may do or refrain from doing in connection
therewith, except in the case of negligence in ascertaining the pertinent facts;
(h) may execute any of the powers hereunder or perform any duties
hereunder either directly or through agents or attorneys and shall not be liable
for the actions and omissions of agent or attorney appointed by it with due
care; and
(i) shall have the rights and immunities of the Owner Trustee under
Articles VI and VII and the additional rights and immunities provided in Section
8.4.
SECTION 3.12 Protection of the Certificate Registrar.
The Certificate Registrar shall have the rights and immunities of the
Owner Trustee under Articles VI and VII and the additional rights and immunities
provided in Section 8.4.
-18-
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters.
The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
and lawsuits brought in connection with the collection of the Receivables) or
the compromise of any action, claim or lawsuit brought by or against the Trust
(except claims and lawsuits brought in connection with the collection of the
Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust, (except to the extent such amendment is required under the Business
Trust Statute);
(c) the amendment or other change to this Agreement or any other
Operative Document;
(d) [reserved];
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or, pursuant to this Agreement, of
a successor Certificate Registrar or Trust Paying Agent, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee, Certificate
Registrar or Trust Paying Agent of its obligations under the Indenture or this
Agreement, as applicable;
(f) the consent to the calling or waiver of any default of any
Operative Document;
(g) the consent to the assignment of the Indenture Trustee or the
Servicer of their respective obligations under the Operative Documents;
(h) except as provided in Article IX hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any other
entity;
(j) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement and the other Operative Documents;
(k) do any act that conflicts with any Operative Document;
(l) do any act which would make it impossible to carry on the ordinary
business of the Trust as described in Section 2.3 hereof;
(m) confess a judgment against the Trust;
-19-
(n) possess Trust assets, or assign the Trust's right to property, for
other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity; or
(p) change the Trust's purpose and powers from those set forth in this
Agreement.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separate from those of any other entity. Except as expressly set forth
herein, the Trust shall pay its indebtedness and any operating expenses from its
own funds, and the Trust shall not pay the indebtedness, operating expenses or
liabilities of any other entity. The Trust shall maintain appropriate minutes or
other records of all appropriate actions and shall maintain its office separate
from the offices of the Depositor, the Transferor, the Seller and the Servicer.
SECTION 4.2 Action by Certificateholders with respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to remove the Servicer, to consent to a
successor Servicer or to remove the Indenture Trustee under the Indenture.
SECTION 4.3 Action by Holders with Respect to Bankruptcy.
The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, and to the extent otherwise consistent with the
Operative Documents, to (i) institute proceedings to have the Trust declared or
adjudicated a bankruptcy or insolvent, (ii) consent to the institution of
bankruptcy or insolvency proceedings against the Trust, (iii) file a petition or
consent to a petition seeking reorganization or relief on behalf of the Trust
under any applicable federal or state law relating to bankruptcy, (iv) consent
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or any similar official) of the Trust or a substantial portion of the property
of the Trust, (v) make any assignment for the benefit of the Trust's creditors,
(vi) cause the Trust to admit in writing its inability to pay its debts
generally as they become due or (vii) take any action, or cause the Trust to
take any action, in furtherance of any of the foregoing (any of the above, a
"Bankruptcy Action"). The Owner Trustee shall not have the power to remove the
Servicer under the Sale and Servicing Agreement.
SECTION 4.4 Restrictions on Holders' Power.
The Certificateholders shall not direct the Owner Trustee to take or
refrain from taking any action if such action or inaction would be contrary to
any obligation of the Trust or the Owner Trustee under this Agreement or any of
the other Operative Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control.
Except as expressly provided herein, any action that may be taken or
consent that may be given or withheld or written notice delivered by the
Certificateholders under this Agreement may
-20-
be taken by Holders of Certificates representing not less than a majority of the
Certificates by Percentage Interests.
ARTICLE V
APPLICATION OF OWNER TRUST ESTATE; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
The Owner Trustee shall cause the Trust Paying Agent to establish and
maintain with The Chase Manhattan Bank, for the benefit of the Owner Trustee
acting on behalf of the Certificateholders, a segregated account (the
"Certificate Distribution Account") which, while the Trust Paying Agent holds
such account, shall be entitled "CERTIFICATE DISTRIBUTION ACCOUNT, THE CHASE
MANHATTAN BANK, AS TRUST PAYING AGENT, IN TRUST FOR THE OMI NOTE TRUST 2001-A
ASSET BACKED CERTIFICATES, SERIES 2001-A." Funds shall be deposited in the
Certificate Distribution Account as required by the Sale and Servicing
Agreement.
All of the right, title and interest of the Owner Trustee in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof shall be held for the benefit of the Certificateholders. Except
as otherwise expressly provided herein or in the Sale and Servicing Agreement,
the Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the Certificateholders.
SECTION 5.2 Application of Trust Funds.
(a) The Trust Paying Agent shall pay and distribute amounts on deposit
in the Certificate Distribution Account as provided in the Sale and Servicing
Agreement. The Trust Paying Agent shall report to the Servicer, the Depositor,
the Seller and each Owner, with respect to the amount on deposit in the
Certificate Distribution Account, as any of them may from time to time
reasonably request.
(b) In the event that any withholding tax is imposed on any payment
(or allocation of income) by the Trust to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in accordance
with this Section. The Trust Paying Agent is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Trust Paying Agent from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated as
cash distributed to such Holder at the time it is withheld by the Trust Paying
Agent and shall be remitted by the trust Paying Agent to the appropriate taxing
authority on a timely basis, subject to the foregoing. If there is a possibility
that withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Holder), the Trust Paying Agent may in its sole
discretion withhold such amounts in accordance with this paragraph (b). In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Trust Paying Agent shall reasonably cooperate with such
-21-
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Trust Paying Agent for its related fees and any out-of-pocket
expenses incurred.
SECTION 5.3 Method of Payment.
Distributions required to be made to Certificateholders on any Payment
Date shall be made to each Certificateholder of record on the immediately
preceding Record Date either by wire transfer, in immediately available funds,
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Payment Date, or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register.
SECTION 5.4 Segregation of Moneys; No Interest.
Subject to Sections 5.1 and 5.2, moneys received by the Trust Paying
Agent hereunder and deposited into the Certificate Distribution Account will be
segregated except to the extent required otherwise by law and shall be invested
in Eligible Investments maturing no later than one Business Day prior to the
date set for payment or distribution of such moneys or, if none, the next
Payment Date at the direction of the Depositor (which may consist of standing
instructions). The Trust Paying Agent shall not be liable for payment of any
interest or losses in respect of such moneys and the same shall be for the
account of the Certificateholders.
SECTION 5.5 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others.
The Certificate Registrar shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, and such books shall be maintained separately from those
of any other entity and reflect the separate interest of the Trust, (b) deliver
to each Certificateholder, as may be required by the Code and applicable
Treasury Regulations, such information as may be required (including Schedule
K-1) to enable such Certificateholder to prepare its federal and state income
tax returns, (c) file such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065), and make such elections as may
from time to time be required or appropriate under any applicable state or
federal statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a partnership for federal income tax purposes, (d) cause
such tax returns to be signed in the manner required by law and (e) collect or
cause to be collected any withholding tax required to be withheld (as certified
by the Seller) with respect to income or distributions to Certificateholders.
The Certificate Registrar shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Receivables. The Certificate Registrar shall not make the election provided
under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner.
(a) The Certificate Registrar shall sign on behalf of the Trust the
tax returns of the Trust, unless applicable law requires a Certificateholder to
sign such documents, in which case such documents shall be signed by the
applicable Certificateholder.
-22-
(b) The Certificateholders holding a majority of the Percentage
Interests shall be designated the "tax matters person" of the Trust pursuant to
Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations; provided,
however, that much Certificateholder may appoint the Seller to act as its agent
with respect to the performance of its obligations as tax matters partner.
ARTICLE VI
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 6.1 General Authority.
The Owner Trustee is authorized and directed to execute and deliver, or
cause to be executed and delivered, the Certificates, the other Operative
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 Operative Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described in Article III, and any bank-account related documents in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof, and, on behalf of the
Trust, to direct the Indenture Trustee to authenticate and deliver the Notes
from time to time in the aggregate face amount of $200,000,000. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust, pursuant to the Operative Documents.
SECTION 6.2 General Duties.
It shall be the duty of the Owner Trustee:
(a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Operative
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, and in accordance with the provisions of
this Agreement; and
(b) to obtain and preserve, the Trust's qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes and each
instrument and agreement included in the Owner Trust Estate.
SECTION 6.3 Action upon Instruction by Certificateholders.
(a) Subject to Article IV, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust, but only to
the extent consistent with the limited purposes of the Trust. Such direction may
be exercised at any time by written instruction of the Certificateholders
pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Operative Document if
the Owner Trustee shall have reasonably determined, or shall have been advised
by counsel, that such action is likely to result in liability on the part of the
Owner Trustee (except to the extent that it is indemnified to
-23-
its satisfaction) or is contrary to the terms hereof or of any other Operative
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
other Operative Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the other
Operative Documents, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and, to the
extent the Owner Trustee acts in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received appropriate
instructions within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action which is consistent, in its view, with this Agreement or the
other Operative Documents, and as it shall deem to be the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for any 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 other Operative Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other
Operative Documents, as it shall deem to be in the best interest of the
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, the Operative
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 Owner Trust Estate, or to otherwise take or refrain from taking
any action under, or in connection with, any document contemplated hereby to
which the Owner Trustee is a party, except as expressly provided by the terms of
this Agreement, any other Operative Document or in any document or 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 other
Operative Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the
-24-
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Securities and Exchange Commission filing for the Trust or
to record this Agreement or any other Operative Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Owner Trust
Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
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 Owner Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Operative Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions.
The Owner Trustee shall not take any action (a) that is inconsistent
with the purposes of the Trust set forth in Section 2.3 or (b) that, to the
actual knowledge of the Owner Trustee, would result in the Trust's becoming
taxable as a corporation for Federal income tax purposes. The Certificateholders
shall not direct the Owner Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties.
Except as otherwise provided in this Article VII, in accepting the
trusts hereby created Wilmington Trust Company acts solely as Owner Trustee
hereunder and not in its individual capacity and all Persons having any claim
against the Owner Trustee by reason of the transactions contemplated by this
Agreement or any other Operative Document shall look only to the assets of the
Trust for payment or satisfaction thereof. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such
trusts but only upon the terms of this Agreement. The Owner Trustee also agrees
to disburse all moneys actually received by it constituting part of the assets
of the Trust upon the terms of this Agreement. The Owner Trustee shall not be
liable or accountable hereunder or under any other Operative Document under any
circumstances, except (i) for its own gross negligent action, its own gross
negligent failure to act or its own willful misconduct or (ii) in the case of
the inaccuracy of any representation or warranty contained in Section 7.3 and
expressly made by the Owner Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Manufactured Home or
-25-
Mortgaged Property or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the assets of the Trust or their
ability to generate the payments to be distributed to Certificateholders under
this Agreement or the Owners of the Notes under the Indenture, including,
without limitation: the existence, condition and ownership of any property; the
existence and enforceability of any insurance thereon; the existence and
contents of any Receivable on any computer or other record thereof; the validity
of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Seller, the Transferor, the Depositor
or the Servicer with any warranty or representation made under any Operative
Document or in any related document or the accuracy of any such warranty or
representation or any action of the Indenture Trustee, any Custodian or the
Servicer or any subservicer taken in the name of the Owner Trustee.
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of a
majority in Percentage Interests of the Certificateholders;
(c) no provision of this Agreement or any other Operative Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Operative Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Operative Documents,
including the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
and makes no representation as to the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate or for or in respect of the validity or sufficiency of the
Operative Documents, including without limitation, the Notes and the
Certificates (other than the execution thereof and the certificate of
authentication on the Certificates, if executed by the Owner Trustee), or of any
Receivables or any related documents, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Owner of a Note or to
any Certificateholder, other than as expressly provided for herein and in the
other Operative Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, any Custodian, the Depositor, the
Transferor, the Seller or the Servicer under any of the Operative Documents or
otherwise and the Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the other Operative
Documents that are required to be performed by the Indenture Trustee under the
Indenture or the Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Operative Document, at the request, order or direction of
any of the Certificateholders, unless such
-26-
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 other
Operative 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;
(h) The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare, execute or file any Securities and
Exchange Commission filing or tax return for the Trust or to record this
Agreement or any other Operative Document.
SECTION 7.2 Furnishing of Documents.
The Owner Trustee shall furnish to the Certificateholders, promptly
upon receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Operative Documents.
SECTION 7.3 Representations and Warranties of Owner Trustee.
Wilmington Trust Company hereby represents and warrants to the
Depositor, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) It has full power, authority and legal right to execute, deliver
and perform its obligations under this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any law or regulation governing the
banking and trust powers of Wilmington Trust Company or any order, writ,
judgment or decree of any court, arbitrator or governmental authority applicable
to Wilmington Trust Company or any of its assets, (ii) shall not violate any
provision of the corporate charter or by-laws of Wilmington Trust Company, or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking to which it is
a party, which violation, default or lien could reasonably be expected to have a
materially adverse effect on Wilmington Trust Company's performance or ability
to perform its duties as Owner Trustee under this Agreement or on the
transactions contemplated in this Agreement.
(d) This Agreement has been duly executed and delivered by Wilmington
Trust Company and constitutes the legal, valid and binding agreement of
Wilmington Trust Company, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar law affecting the enforcement of
-27-
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(e) Wilmington Trust Company is not in default with respect to any
order or decree of any court or any order, regulation or demand of any Federal,
state, municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of Wilmington Trust Company or its properties or might have
consequences that would materially adversely affect its performance hereunder.
(f) No litigation is pending or, to the best of Wilmington Trust
Company's knowledge, threatened against Wilmington Trust Company which would
prohibit its entering into this Trust Agreement or performing its obligations
under this Agreement.
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, note 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 Trust hereunder and in
the performance of its duties and obligations under this Agreement and the other
Operative Documents, the Owner Trustee: (i) may act directly or through its
agents, attorneys, custodians or nominees, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians or
nominees if such agents, attorneys, custodians or nominees shall have been
selected by the Owner Trustee with reasonable care and (ii) may consult with
counsel, accountants and other skilled professionals 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
opinion or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any of the other Operative Documents.
(c) In providing any certificates required of the Issuer pursuant to
the Indenture, the Owner Trustee may rely on an Officer's Certificate of the
Servicer in a form satisfactory to the Owner Trustee.
SECTION 7.5 Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates or Notes and may deal with the Depositor,
the Transferor, the Indenture Trustee, the Seller, the Servicer and their
respective Affiliates in transactions in the same manner
-28-
and with the same rights as it would have if it were not the Owner Trustee.
SECTION 7.6 Licenses.
The Owner Trustee shall cause the Trust to use its best efforts to
obtain and maintain the effectiveness of any licenses required in connection
with this Agreement and the other Operative Documents and the transactions
contemplated hereby and thereby until such time as the Trust shall terminate in
accordance with the terms hereof.
ARTICLE VIII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE AND ITS AGENTS
SECTION 8.1 Owner Trustee's Fee and Expenses.
The Owner Trustee shall receive compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between the
Seller and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed by the Trust (or otherwise as separately agreed) for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder.
SECTION 8.2 Indemnification of the Owner Trustee.
The Owner Trustee and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") shall be indemnified by the Trust from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by, or asserted against the Owner Trustee or any other Indemnified
Party in any way relating to or arising out of the Operative Documents, the
Owner Trust Estate, the administration of the Trust or the action or inaction of
the Owner Trustee hereunder, provided that:
(i) no Person shall be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from the Owner
Trustee's willful misconduct, gross negligence or bad faith, as specified in the
fourth sentence of Section 7.1, or as a result of any inaccuracy of a
representation or warranty contained in Section 7.3 expressly made by the Owner
Trustee;
(ii) with respect to any such claim, the Indemnified Party shall
have given the indemnitor written notice thereof promptly after the Indemnified
Party shall have actual knowledge thereof;
(iii) while maintaining control over its own defense, the
Indemnified Party shall consult with any indemnitor in preparing such defense;
and
-29-
(iv) notwithstanding anything in this Agreement to the contrary, no
Person shall be liable for settlement of any claim by an Indemnified Party
entered into without the prior consent of such Person, which consent shall not
be unreasonably withheld.
The indemnities contained in this Section 8.2 shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 8.2, the Indemnified Party's choice of
legal counsel, if other than the legal counsel retained by the Owner Trustee in
connection with the execution and delivery of this Agreement, shall be subject
to the approval of each indemnitor, which approval shall not be unreasonably
withheld. In addition, upon written notice to the Indemnified Party and with the
consent of the Owner Trustee which consent shall not be unreasonably withheld,
each indemnitory shall have the right to assume the defense of any claim, action
or proceeding against the Indemnified Party.
SECTION 8.3 Payments to the Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article VIII
shall be deemed not to be a part of the Owner Trust Estate immediately after
such payment.
SECTION 8.4 Indemnification of the Certificate Registrar and Trust Paying
Agent.
(a) Neither the Certificate Registrar, the Trust Paying Agent nor any
of their respective directors, officers, agents or employees, shall be liable
for any action taken or omitted to be taken by it or them hereunder or in
connection herewith in good faith and believed by it or them to be within the
purview of this Agreement, except for its or their own gross negligence, lack of
good faith or willful misconduct. In no event shall the Certificate Registrar,
the Trust Paying Agent nor any of their respective directors, officers, agents
and employees be held liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or them hereunder
or in connection herewith even if advised of the possibility of such damages.
(b) The Certificate Registrar, the Trust Paying Agent and their
respective directors, officers, agents and employees (each, an "Indemnified
Party") shall be indemnified and held harmless by the Trust against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonably attorney's fees, that may be imposed on, incurred by, or asserted
against such Indemnified Party in any action taken or not taken by such
Indemnified Party hereunder unless such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
were imposed on, incurred by or asserted against such Indemnified Party because
of the breach by such Indemnified Party of its obligations hereunder, which
breach was caused by gross negligence, lack of good faith or willful misconduct
on the part of such Indemnified Party. The foregoing indemnification shall
survive any termination of this Agreement and the resignation or removal of the
Certificate Registrar or Trust Paying Agent.
-30-
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect on the termination of the
Commitment and the final distribution by the Indenture Trustee of all moneys or
other property or proceeds of the assets of the Trust in accordance with the
terms of the Indenture. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (x) operate to terminate this
Agreement or the Trust, nor (y) entitle such 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 the Owner Trust Estate or (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in paragraph (a) of this Section 9.1, none of
the Depositor, the Seller, the Servicer or any Certificateholder shall be
entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates to the
Owner Trustee for payment of the final distribution and cancellation, shall be
given by the Trust Paying Agent mailed within five Business Days of such Payment
Date, stating: (i) the Payment Date upon or with respect to which final payment
of the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Owner Trustee therein designated; (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 Certificates at the office of the Owner
Trustee therein specified. The Trust Paying Agent shall give such notice to the
Owner Trustee and the Certificate Registrar (if other than the Owner Trustee) at
the time such notice is given to Certificateholders. The Owner Trustee will give
notice to the Trust Paying Agent of each presentation and surrender of the
Certificates and the Trust Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to the
Sale and Servicing Agreement.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Business Trust Statute.
Upon presentation and surrender of the Trust Certificates, the Paying
Agent shall cause to be distributed to Certificateholders amounts distributable
on such Payment Date pursuant to Section 5.2.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect
-31-
thereto. If within one year after the second notice all the Trust Certificates
shall not have been surrendered for cancellation, the Owner Trustee shall
distribute any funds remaining to the Depositor. Certificateholders shall
thereafter look solely to the Depositor as general unsecured creditors.
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 satisfying the
provisions of Section 3807(a) of the Business Trust Statute; authorized to
exercise corporate powers; having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or state
authorities; and having (or having a parent which has) a rating of at least
"Baa3" by ▇▇▇▇▇'▇ and "A-1" by Standard & Poor's. 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.
The Owner Trustee may at any time resign and be discharged from the
trusts hereby created by giving 30 days prior written notice thereof to the
Depositor, the Servicer and the Indenture Trustee. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee by
written instrument, in quadruplet, one copy of which instrument shall be
delivered to each of the resigning Owner Trustee, the successor Owner Trustee,
the Indenture Trustee and the Servicer. 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 Indenture Trustee, 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 Indenture Trustee may remove the Owner
Trustee. If the Indenture Trustee shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Owner Trustee by written instrument in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee and payment of all fees owed to the
outgoing Owner Trustee, provided that such successor Owner Trustee shall be
acceptable to the Owners of a majority of the Percentage
-32-
Interests of the Notes.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee.
SECTION 10.3 Successor Owner Trustee.
Any successor Owner Trustee appointed pursuant to Section 10.2 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Indenture
Trustee and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the 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 successor Owner Trustee shall mail notice of the successor of
such Owner Trustee to all Certificateholders and the Indenture Trustee.
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,
and without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, except to the extent not effected by
operation of law, in which case such successor shall execute and deliver to the
Depositor an assignment and assumption with respect to this Agreement.
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate or any property 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 as separate trustee or
-33-
trustees, of all or any part of the assets of the Trust, 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 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 10.3.
(b) 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 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.
(c) 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.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
-34-
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments With Consent of Certificateholders and Owners of
the Notes.
This Agreement may be amended from time to time by the Depositor and
the Owner Trustee with the consent of more than a majority in Percentage
Interests of the Certificates, and with the consent of the Note Agent, 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 Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
made for the benefit of the Certificateholders or (b) reduce the aforesaid
percentage required to consent to any such amendment, without the consent of the
Holders of all of the Certificates then outstanding.
SECTION 11.2 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 11.1 or 11.2, the Owner Trustee shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of the
Certificateholders, pursuant to Section 11.2 to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement or in
any other Operative Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement, the
Certificate of Trust, or any other Operative 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 otherwise.
SECTION 11.3 No Legal Title to Owner Trust Estate.
The Certificateholders shall not have legal title to any part of the
assets of the Owner Trust Estate solely by virtue of their status as
Certificateholders. The Certificateholders shall be entitled to receive
distributions with respect to their undivided beneficial ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise,
-35-
of any right, title, and interest of the Certificateholders to and in their
ownership interest in the assets of the Trust shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the assets of the Trust.
SECTION 11.4 Limitations on Rights of Others.
Except for Section 2.7, the provisions of this Agreement are solely for
the benefit of the Owner Trustee, the Depositor, the Certificateholders and, to
the extent expressly provided herein, the Indenture Trustee, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the assets of the Trust
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.5 Notices.
(a) All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by overnight mail, certified mail or registered mail, postage prepaid,
to (i) in the case of the Seller and the Servicer, as set forth in the Sale and
Servicing Agreement, or such other address as may hereafter be furnished to the
Owner Trustee in writing by the Seller or the Servicer, (ii) in the case of the
Depositor, Oak Leaf Holdings, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Treasurer, or such other address as may hereafter be furnished to the
Owner Trustee in writing by the Depositor, (iii) in the case of the Owner
Trustee, Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration/OMI Note
Trust 2001-A or such other address as may hereafter be furnished to the
Depositor, the Seller, the Servicer, the Indenture Trustee or the
Certificateholders in writing by the Owner Trustee, (iv) in the case of the
Certificateholders, as set forth in the Certificate Register and (v) in the case
of the Indenture Trustee, as set forth in the Sale and Servicing Agreement or
such other address as may hereafter be furnished to the Owner Trustee in writing
by the Indenture Trustee. Any such notices shall be deemed to be effective with
respect to any party hereto upon the receipt of such notice by such party,
except that notices to the Certificateholders shall be effective upon mailing or
personal delivery.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.6 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the Holders
thereof.
-36-
SECTION 11.7 Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
SECTION 11.8 Successors and Assigns.
All covenants and agreements contained herein shall be binding upon,
and inure to the benefit of, the Depositor, the Owner Trustee and each
Certificateholder and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
SECTION 11.9 No Petition Covenant.
Notwithstanding any prior termination of this Agreement, the Trust (or
the Owner Trustee on behalf of the Trust), the Depositor and each
Certificateholder shall not acquiesce, petition or otherwise invoke or cause the
Trust to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Depositor or the Trust
under any 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 the Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Depositor or the Trust. This paragraph shall survive for one year and one day
following termination of this Agreement.
SECTION 11.10 No Recourse.
Each Certificateholder by accepting a Certificate acknowledges that
such Certificateholder's Certificates represent beneficial interests in the
Trust only and do not represent interests in or obligations of the Depositor,
the Transferor, the Seller, the Servicer, the Owner Trustee, the Indenture
Trustee, the Custodian or any affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement or the other Operative Documents.
Except as expressly provided in the Operative Documents, neither the
Depositor, the Servicer, the Master Servicer, the Indenture Trustee nor the
Owner Trustee in their respective individual capacities, nor any of their
respective Affiliates, partners, beneficiaries, agents, officers, directors,
employees or successors or assigns, shall be personally liable for, nor shall
recourse be had to any of them for, the distribution of any amount with respect
to the Certificates, or the Trust's performance of, or omission to perform, any
of the covenants obligations or indemnifications contained in the Trust
Certificates or the Trust Agreement, it being expressly understood that said
covenants and obligations have been made solely by the Trust. Each
Certificateholder by the acceptance of a Trust Certificate (or a beneficial
interest therein) agrees that, except as expressly provided in the Basic
Documents, in the case of nonpayment of any amounts with respect to such Trust
Certificate, it shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
-37-
SECTION 11.11 Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11.12 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.13 Integration.
This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
-38-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
OAK LEAF HOLDINGS, LLC, as Depositor
By: Oakwood Capital Corp., Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Secretary
Acknowledged and Accepted:
THE CHASE MANHATTAN BANK, as
Trust Paying Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[OMI TRUST AGREEMENT]
EXHIBIT A
CERTIFICATE OF TRUST OF
OMI Note Trust 2001-A
This Certificate of Trust of OMI Note Trust 2001-A (the "Trust") dated as
of February __, 2001, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. Code, ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is OMI Note Trust
2001-A
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration.
3. This Certificate of Trust shall be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: ____________________________
Name:
Title:
A-1
EXHIBIT B
TO THE TRUST AGREEMENT
(FORM OF CERTIFICATE)
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS.
THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE
DISPOSED OR (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) AN
"INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE ACT OR A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE ACT, (II) A PERSON INVOLVED IN THE ORGANIZATION
OR OPERATION OF THE TRUST OR AN AFFILIATE OF A PERSON DESCRIBED IN (II) WITHIN
THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED
(INCLUDING, BUT NOT LIMITED TO THE DEPOSITOR OR (III) IN A TRANSACTION THAT IS
REGISTERED OR QUALIFIED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS. NO
PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE
SECURITIES LAWS.
NO TRANSFER OF THIS CERTIFICATE OR ANY BENEFICIAL INTEREST THEREIN SHALL BE MADE
TO ANY PERSON UNLESS THE DEPOSITOR, THE OWNER TRUSTEE AND THE CERTIFICATE
REGISTRAR (OR THEIR RESPECTIVE SUCCESSORS) HAS RECEIVED EITHER
(A) A CERTIFICATE FROM THE TRANSFEREE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN "EMPLOYEE BENEFIT PLAN" WITHIN THE
MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A "PLAN" WITHIN
THE MEANING OF SECTION 4975(e)(1) OF THE CODE (ANY SUCH PLAN
OR EMPLOYEE BENEFIT PLAN, A "PLAN") AND IS NOT DIRECTLY OR
INDIRECTLY PURCHASING SUCH CERTIFICATE ON BEHALF OF, AS
INVESTMENT MANAGER OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF A PLAN; OR
(B) AN OPINION OF COUNSEL ACCEPTABLE TO SUCH PERSONS THAT (A) THE
PROPOSED ISSUANCE OR TRANSFER OF THE CERTIFICATE TO SUCH
TRANSFEREE WILL NOT CAUSE ANY ASSETS OF THE TRUST TO BE DEEMED
ASSETS OF A PLAN, OR (B) THE PROPOSED ISSUANCE OR TRANSFER OF
THE CERTIFICATE WILL NOT CAUSE THE DEPOSITOR, THE SELLER, THE
A-1
TRANSFEROR, THE SERVICER, THE NOTE AGENT, THE OWNER TRUSTEE,
THE CERTIFICATE REGISTRAR OR ANY OF THEIR RESPECTIVE
SUCCESSORS TO BE A FIDUCIARY OF A PLAN WITHIN THE MEANING OF
SECTION 3(21) OF ERISA AND WILL NOT GIVE RISE TO A TRANSACTION
DESCRIBED IN SECTION 406 OF ERISA OR SECTION 4975(c)(1) OF THE
CODE FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS
UNAVAILABLE.
THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS,
PRIOR TO SUCH DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE OWNER TRUSTEE
AND THE CERTIFICATE REGISTRAR A CERTIFICATE STATING THAT SUCH TRANSFEREE (A)
AGREES TO BE BOUND BY AND TO ABIDE BY THE TRANSFER RESTRICTIONS APPLICABLE TO
THIS CERTIFICATE; (B) IS NOT AN ENTITY THAT WILL HOLD THIS CERTIFICATE AS
NOMINEE TO FACILITATE THE CLEARANCE AND SETTLEMENT OF SUCH SECURITY THROUGH
ELECTRONIC BOOK ENTRY CHANGES IN ACCOUNTS OF PARTICIPATING ORGANIZATIONS (A
"BOOK ENTRY NOMINEE") AND (C) THAT THIS CERTIFICATE MAY NOT BE PURCHASED BY OR
TRANSFERRED TO ANY PERSON THAT IS A NON-U.S. PERSON. THE TERM "NON-U.S. PERSON"
MEANS A PERSON WHO IS NOT ONE OF THE FOLLOWING: A CITIZEN OR RESIDENT OF THE
UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED
IN OR UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF,
AN ESTATE THAT IS SUBJECT TO U.S. FEDERAL INCOME TAX REGARDLESS OF THE SOURCE OF
ITS INCOME OR A TRUST IF (I) A COURT IN THE UNITED STATES IS ABLE TO EXERCISE
PRIMARY SUPERVISION OVER THE ADMINISTRATION OF THE TRUST AND (II) ONE OR MORE
UNITED STATES FIDUCIARIES HAVE THE AUTHORITY TO CONTROL ALL SUBSTANTIAL
DECISIONS OF THE TRUST.
A-2
OMI Note Trust 2001-A
CERTIFICATE
No. 0001
THIS CERTIFIES THAT __________________________ (the "Owner") is the
registered owner of a [___]% Percentage Interest in OMI Note Trust 2001-A (the
"Trust") existing under the laws of the State of Delaware and created pursuant
to the Trust Agreement, dated as of February __, 2001 (the "Trust Agreement"),
between Oak Leaf Holdings, LLC, as Depositor and Wilmington Trust Company, in
its individual capacity and in its fiduciary capacity as owner trustee under the
Trust Agreement (the "Owner Trustee"). Capitalized terms used but not otherwise
defined herein have the meanings assigned to such terms in the Trust Agreement.
The Owner Trustee, on behalf of the Issuer and not in its individual capacity,
has executed this Certificate by one of its duly authorized signatories as set
forth below. This Certificate is one of the Certificates referred to in the
Trust Agreement and is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement to which the holder of this Certificate by
virtue of the acceptance hereof agrees and by which the holder hereof is bound.
Reference is hereby made to the Trust Agreement for the rights of the holder of
this Certificate, as well as for the terms and conditions of the Trust created
by the Trust Agreement.
The holder, by its acceptance hereof, agrees not to transfer this
Certificate except in accordance with terms and provisions of the Agreement.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
OMI Note Trust 2001-A
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
under the Trust Agreement
By: ____________________________________
Authorized Signatory
DATED: February __, 2001
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner
Trustee
--------------------------------- ,
as Certificate Registrar
------------------------------------
Authorized Signatory
A-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
------------------------------------------------------------------------
the within Instrument, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________________ Attorney to
transfer said Instrument on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated: _____________________
_______________________________*/
Signature Guaranteed:
_______________________________*/
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Instrument in every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by a member firm
of the New York Stock Exchange or a commercial bank or trust
company.
A-5
