Exhibit 4.1
MASTER TRUST AGREEMENT
between
A. I. RECEIVABLES TRANSFER CORP.,
as Depositor,
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of November 5, 1999
NY2:\817089\27\11278.0005
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................................................1
Section 1.01. Capitalized Terms............................................................1
Section 1.02. Other Definitional Provisions................................................3
ARTICLE II ORGANIZATION......................................................................4
Section 2.01. Name.........................................................................4
Section 2.02. Office.......................................................................4
Section 2.03. Purposes and Powers..........................................................4
Section 2.04. Appointment of Owner Trustee.................................................6
Section 2.05. Initial Capital Contribution of Trust Assets.................................6
Section 2.06. Declaration of Trust.........................................................6
Section 2.07. Liability of the Depositor...................................................6
Section 2.08. Title to Trust Property......................................................6
Section 2.09. Situs of Trust...............................................................7
Section 2.10. Representations Warranties and Covenants of the Depositor....................7
Section 2.11. Federal Income Tax Allocations...............................................8
Section 2.12. Covenants of the Certificateholders..........................................8
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS......................................9
Section 3.01. Initial Ownership............................................................9
Section 3.02. The Trust Certificates.......................................................9
Section 3.03. Execution, Authentication and Delivery of Trust Certificates................10
Section 3.04. Registration of Transfer and Exchange of Trust Certificates.................10
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.....................11
Section 3.06. Persons Deemed Owners.......................................................11
Section 3.07. Access to List of Certificateholders' Names and Addresses...................12
Section 3.08. Maintenance of Office or Agency.............................................12
Section 3.09. Appointment of Paying Agent.................................................12
Section 3.10. Trust Certificate Transfer Restrictions.....................................13
ARTICLE IV ACTIONS BY OWNER TRUSTEE.........................................................15
Section 4.01. Prior Notice with Respect to Certain Matters................................15
Section 4.02. Action by Owners with Respect to Certain Matters............................17
Section 4.03. Action by Owners with Respect to Bankruptcy.................................17
Section 4.04. Restrictions on Owners' Power...............................................17
Section 4.05. Majority Control............................................................17
Section 4.06. Execution of Documents......................................................17
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.......................................18
Section 5.01. [RESERVED]..................................................................18
Section 5.02. Application of Trust Funds..................................................18
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TABLE OF CONTENTS
(continued)
Page
Section 5.03. Method of Payment...........................................................19
Section 5.04. [Reserved]..................................................................19
Section 5.05. Accounting and Reports to Owners, the Internal Revenue Service and Others...19
Section 5.06. Signature on Returns Tax Matters Partner....................................19
Section 5.07. No Segregation of Monies; No Interest.......................................20
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE............................................20
Section 6.01. General Authority...........................................................20
Section 6.02. General Duties..............................................................20
Section 6.03. Action upon Instruction.....................................................20
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions..........21
Section 6.05. No Action Except Under Specified Documents or Instructions..................22
Section 6.06. Restrictions................................................................22
Section 6.07. Administrative Duties.......................................................22
Section 6.08. Notice of Default Under Indenture...........................................23
ARTICLE VII CONCERNING THE OWNER TRUSTEE.....................................................23
Section 7.01. Acceptance of Trusts and Duties.............................................23
Section 7.02. Furnishing of Documents.....................................................25
Section 7.03. Representations and Warranties..............................................25
Section 7.04. Reliance; Advice of Counsel.................................................25
Section 7.05. Not Acting in Individual Capacity...........................................26
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for Receivables..........26
Section 7.07. Owner Trustee May Own Trust Certificates and Notes..........................27
Section 7.08. Doing Business in Other Jurisdictions.......................................27
Section 7.09. Owner Trustee as Paying Agent...............................................27
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE....................................................27
Section 8.01. Owner Trustee's Fees and Expenses...........................................27
Section 8.02. Indemnification.............................................................28
Section 8.03. Payments to the Owner Trustee...............................................28
Section 8.04. Non-recourse Obligations....................................................28
ARTICLE IX TERMINATION OF TRUST AGREEMENT...................................................28
Section 9.01. Termination of Trust Agreement..............................................28
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...........................30
Section 10.01. Eligibility Requirements for Owner Trustee..................................30
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TABLE OF CONTENTS
(continued)
Page
Section 10.02. Resignation or Removal of Owner Trustee.....................................30
Section 10.03. Successor Owner Trustee.....................................................31
Section 10.04. Merger or Consolidation of Owner Trustee....................................31
Section 10.05. Appointment of Co-Trustee or Separate Trustee...............................32
ARTICLE XI MISCELLANEOUS....................................................................33
Section 11.01. Supplements and Amendments..................................................33
Section 11.02. No Legal Title to Trust Assets in Certificateholders........................34
Section 11.03. Limitations on Rights of Others.............................................34
Section 11.04. Notices.....................................................................35
Section 11.05. Severability................................................................35
Section 11.06. Separate Counterparts.......................................................35
Section 11.07. Successors and Assigns......................................................35
Section 11.08. Covenants of the Depositor..................................................35
Section 11.09. No Petition.................................................................36
Section 11.10. No Recourse.................................................................36
Section 11.11. Headings....................................................................36
Section 11.12. GOVERNING LAW...............................................................36
Section 11.13. Trust Certificate Transfer Restrictions.....................................36
EXHIBIT A FORM OF CERTIFICATE OF TRUST OF AIG CREDIT PREMIUM FINANCE MASTER TRUST...........A-1
EXHIBIT B FORM OF TRUST CERTIFICATE.........................................................B-1
EXHIBIT C FORM OF QIB LETTER................................................................C-1
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This MASTER TRUST AGREEMENT, dated as of November 5, 1999, is between
A. I. RECEIVABLES TRANSFER CORP., a Delaware corporation, as depositor (the
"Depositor"), and CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation,
as owner trustee (the "Owner Trustee").
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Administration Agreement" means the Administration Agreement dated as
of November 5, 1999, among the Trust, as Issuer, A.I. Credit Corp., as Trust
Administrator, and Bank One, National Association, as Indenture Trustee.
"Agreement" means this Master Trust Agreement, as the same may be
amended and supplemented from time to time.
"AIC" means A.I. Credit Corp., a Delaware corporation.
"Basic Documents" means the Base Indenture, the Sale and Servicing
Agreement, the Receivables Purchase Agreement, the Transferor Certificate
Purchase Agreement, the Series 1999-A Supplement to the Base Indenture, the
Series 1999-B Supplement to the Base Indenture, the Series 1999-C Supplement to
the Base Indenture, and the Series 1999-D Supplement to the Base Indenture, any
other Series Supplement to the Base Indenture and the other documents delivered
in connection therewith.
"Base Indenture" means the Base Indenture, dated as of November 8, 1999
among the Trust and Bank One, National Association, as Indenture Trustee.
"Benefit Plan" has the meaning assigned to such term in Section 11.13.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Codess.3801 et seq., as the same may be amended from time to time.
"Certificate of Trust" means the Certificate of Trust substantially in
the form of Exhibit A filed for the Trust, by the Owner Trustee, pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificateholder" or "Holder" means a Person in whose name a Trust
Certificate is registered.
"Certificate Register" and "Certificate Registrar" means the register
mentioned in and the registrar appointed pursuant to Section 3.04.
"Code" means the Internal Revenue Code of 1986, as amended and Treasury
Regulations promulgated thereunder.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration,
or at such other address in the State of Delaware as the Owner Trustee may
designate by notice to the Owner and the Depositor, or the principal corporate
trust office of any successor Owner Trustee at the address (which shall be in
the State of Delaware) designated by such successor Owner Trustee by notice to
the Owner and the Depositor.
"Depositor" means A. I. Receivables Transfer Corp., and its successors,
in its capacity as depositor hereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Expenses" has the meaning assigned to such term in Section 8.02.
"Indemnified Parties" has the meaning assigned to such term in Section
8.02.
"Owner" means initially the Depositor, as initial owner of the 100%
Percentage Interest of the beneficial interest in the Trust and if any Trust
Certificates are issued, it shall include the Certificateholders.
"Owner Trustee" means Chase Manhattan Bank Delaware, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Percentage Interest" means, with respect to any Owner, the percentage
ownership interest in the Trust and if Trust Certificates are issued, as set
forth on the face thereof.
"Person" means any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust or business trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Qualified Institutional Buyer" has the meaning specified in Section
3.10.
"Record Date" means, with respect to a Payment Date, the close of
business on the day immediately preceding such Payment Date.
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"Registered Owner" means the Person in whose name a beneficial interest
in the Trust is registered in the Certificate Register pursuant to Section 3.04.
"Rule 144A" has the meaning specified in Section 3.10.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of November 8, 1999, among the Trust, as Purchaser, the Depositor, as
Seller, Bank One, National Association, as Indenture Trustee, A. I. Credit
Corp., AICCO, Inc., Imperial Premium Finance, Inc., Imperial Premium Finance,
Inc. and Imperial Funding, Inc., each as a Servicer thereunder, as the same may
be amended or supplemented from time to time.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Treasury Regulations" means regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust established by this Agreement.
"Trust Administrator" means A.I. Credit Corp. and any successor Trust
Administrator, under the Administration Agreement.
"Trust Assets" means all right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article II of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts, and all other property of the Trust from time to time, including
any Enhancement, any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement, the Administration Agreement and any Enhancement
Agreement.
"Trust Certificate" means a certificate evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form attached
hereto as Exhibit B.
"Trust Estate" has the meaning specified in the Base Indenture.
"Trust Interest" has the meaning specified in the Base Indenture.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein
have the meanings assigned to them in the Base Indenture or, if not
defined therein, in the Sale and Servicing Agreement.
(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.
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(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; or includes "and/or"; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable
to the singular and plural forms of such terms and to the masculine,
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.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as "AIG
Credit Premium Finance Master Trust," in which name the Owner Trustee may
conduct the business of the Trust and engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued on behalf of the Trust.
Section 2.02. 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 Owner and the
Depositor.
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Section 2.03. Purposes and Powers. The purpose of the Trust is, and the
Trust shall have the power and authority, to engage in the following activities:
(a) to issue one or more Series of Notes pursuant to the Base
Indenture and each Series Supplement thereto and to issue to the
Depositor or an Affiliate of the Depositor (upon the Depositor's
request) the Trust Certificate (representing the beneficial ownership
interest in the Trust) pursuant to this Agreement and to sell,
transfer, exchange, increase the principal amount of or decrease the
principal amount of, redeem or refinance any Series of Notes (or Class
thereof);
(b) with the proceeds of the issuance of a Series of Notes
and/or the proportionate increase in the Trust Interest, to purchase,
on the Closing Date, the initial Receivables and the Transferor
Certificate and all rights and benefits under the Receivables Purchase
Agreement and the Transferor Certificate Purchase Agreement and the
proceeds thereof, from the Depositor, and to purchase from time to time
thereafter Additional Receivables from the Depositor, and to pay the
balance of any proceeds or payments received in respect of the Trust
Interest to the Depositor pursuant to the Sale and Servicing Agreement,
the Base Indenture, and any Series Supplement thereto, and this
Agreement;
(c) to assign, grant, transfer, pledge, mortgage and otherwise
convey the Trust Estate pursuant to the Base Indenture, and to hold,
manage, distribute and pay to the Owner pursuant to the terms of the
Sale and Servicing Agreement, the Base Indenture, and any Series
Supplement thereto, and this Agreement, any portion of the Trust Estate
released from the Lien of the Base Indenture and remitted to the Trust
pursuant to the Base Indenture or any Series Supplement thereto
(including in connection with a reduction of the principal balance of
any Series of Notes (or Class thereof));
(d) to enter into, or to authorize the Indenture Trustee to
enter into, any Enhancement Agreement with respect to any Enhancement
for any Series of Notes;
(e) to enter into and perform its obligations under the Basic
Documents with respect to each Series of Notes to which it is to be a
party;
(f) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or that are incidental thereto or connected therewith;
and
(g) subject to compliance with the Basic Documents with
respect to each Series of Notes, to engage in such other activities as
may be required in connection with conservation of the Trust Estate and
the making of payments to Noteholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
5
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Business Trust Statute. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Business Trust
Statute with respect to accomplishing the purposes of the Trust.
Section 2.05. Initial Capital Contribution of Trust Assets. 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 assets of the Trust.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Assets in trust upon and subject to the conditions
set forth herein for the use and benefit of the Owner, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
this Trust. It is the intention of the parties hereto that, solely for income
and franchise tax purposes, (i) so long as there is a single Owner, the Trust
shall be treated as a security arrangement, with the assets of the Trust being
the Receivables, the Transferor Certificate and other assets held by the Trust,
the owner of such assets being the sole Owner and the Notes being non-recourse
debt of the sole Owner and (ii) if there is more than one Owner, the Trust shall
be treated as a partnership for income and franchise tax purposes, with the
assets of the partnership being the Receivables, the Transferor Certificate and
other assets held by the Trust, the partners of the partnership being the
Owners, and the Notes being debt of the partnership. The parties agree that,
unless otherwise required by appropriate tax authorities, the Trust will file or
shall cause the Servicer to file annual or other necessary returns, reports and
other forms consistent with the characterization of the Trust provided in the
preceding sentence for such tax purposes.
Section 2.07. Liability of the Depositor.
(a) The Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
(b) No Owner, other than to the extent set forth in clause (a), shall
have any personal liability for any liability or obligation of the Trust.
Section 2.08. Title to Trust Property. Subject to the Base Indenture,
legal title to all the Trust Assets shall be vested at all times in the Trust as
a separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Trust Assets to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a co-trustee
or a separate trustee, as the case may be.
6
Section 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. 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 will be received by
the Trust only in Delaware or New York, and payments will be made by the Trust
only from Delaware or New York. The only office of the Trust will be at the
Corporate Trust Office in the State of Delaware. However, to the extent it is
necessary or advisable for the Trust to obtain and preserve its qualification to
do business in any jurisdiction in which such qualification is necessary to
protect the validity and enforceability of each Series of Notes, the
Enhancement, the Basic Documents or the transactions contemplated by, or the
documents, instruments or agreements referenced in, any Basic Document, it shall
obtain and preserve such qualification. The Trust Administrator shall authorize
and direct the Owner Trustee to execute such documentation provided to the Owner
Trustee in final execution form, with respect to obtaining and maintaining any
such qualification.
Section 2.10. Representations Warranties and Covenants of the
Depositor. The Depositor hereby represents and warrants to the Owner Trustee
that:
(a) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require 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 and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by the Depositor by all
necessary corporate action.
(d) The Depositor has duly authorized, executed and delivered
this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of the Depositor, enforceable against the Depositor,
in accordance with its terms.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
7
the certificate of incorporation or bylaws 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 Basic 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 its properties.
(f) There are no proceedings or investigations pending or
threatened 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.
(g) The representations and warranties of the Depositor in
Section 2.03 of the Sale and Servicing Agreement are true and correct.
Section 2.11. Federal Income Tax Allocations. Net income of the Trust
determined for federal income tax purposes (and each item of income, gain, loss
and deduction entering into the computation thereof) shall be allocated among
the Owners as of the first day following the Record Date, in proportion to their
Percentage Interest on the Record Date.
Net losses of the Trust, if any, for any month determined for federal
income tax purposes (and each item of income, gain, loss or deduction entering
into the computation thereof) shall be allocated among the Owners as of the
first Record Date following the end of such month in proportion to the
Percentage Interest of the Owners on such Record Date. The Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect the
economic income, gain or loss to the Owners, or as otherwise required by the
Code.
Section 2.12. Covenants of the Certificateholders. The Depositor, as
initial Owner and each Certificateholder by becoming a holder of a Trust
Certificate agrees:
(a) to be bound by the terms and conditions of the Trust
Certificates of which such Certificateholder is the beneficial owner
and of this Agreement, including any supplements or amendments hereto
and to perform the obligations of a Certificateholder as set forth
therein or herein, in all respects as if it were a signatory hereto.
This undertaking is made for the benefit of the Trust, the Owner
Trustee and all other Owners present and future;
8
(b) to hereby appoint the Depositor so long as it is an Owner
as such Certificateholder's agent and attorney-in-fact to sign any
federal income tax information return filed on behalf of the Trust and
agree that, if requested by the Trust, it will sign such federal income
tax information return in its capacity as holder of a beneficial
interest in the Trust. Each Owner also hereby agrees that in its tax
returns it will not take any position inconsistent with those taken in
any tax returns filed by the Trust;
(c) if such Owner is other than an individual or other entity
holding its Trust Certificate through a broker who reports securities
sales on Form 1099-B, to notify the Owner Trustee in writing of any
transfer by it of a Trust Certificate in a taxable sale or exchange,
within 30 days of the date of the transfer; and
(d) until a date that is one year and one day after the
payment in full of the latest maturing Note and the termination of the
Indenture not to, for any reason, institute proceedings for the Trust
to be adjudicated a bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Trust,
or file a petition seeking or consenting to reorganization or relief
under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a
substantial part of its property, or cause or permit the Trust to make
any assignment for the benefit of its creditors, or admit in writing
its inability to pay its debts generally as they become due, or declare
or effect a moratorium on its debt or take any action in furtherance of
any such action.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Trust Certificates, the Depositor shall be the sole beneficiary of 100%
Percentage Interest in the Trust and the Depositor shall be deemed to be the
Registered Owner until written notice is given to the Owner Trustee by the
Depositor or Trust Certificates are issued upon the order of the Depositor.
Section 3.02. The Trust Certificates. The Trust Certificates shall be
issued in minimum denominations of 10% Percentage Interest in a single Class and
in integral multiples of 1% Percentage Interest in excess thereof; provided,
however, that the Trust Certificate may be issued in such denominations as
required to include any residual amount. The Trust Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee, and the Owner Trustee shall have the
power and authority and it is hereby authorized and empowered, in the name and
on behalf of the Trust to authorize, execute, issue and deliver Trust
9
Certificates. Trust Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement and shall be valid and binding obligations of
the Trust, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of authentication
and delivery such Trust Certificates.
A transferee of a Trust Certificate, if any, 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 Trust Certificate duly registered in such transferee's name pursuant to
Section 3.04.
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates. Upon direction of the Depositor, the Owner Trustee shall cause the
Trust Certificates in an aggregate amount equal to the Percentage Interest,
specified by the Depositor, to be executed on behalf of the Trust, authenticated
and delivered to or upon the written order of the Depositor, signed by the Owner
Trustee on behalf of the Trust, without further action by the Depositor, in
authorized denominations. No Trust Certificate shall entitle its Holder to any
benefit under this Agreement or be valid for any purpose unless there shall
appear on such Trust Certificate a certificate of authentication substantially
in the form set forth in Exhibit B, executed by the Owner Trustee or The Chase
Manhattan Bank, as the Owner Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Trust Certificate shall have been duly authenticated and delivered hereunder.
All Trust Certificates shall be dated the dated of their authentication.
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of the ownership of the beneficial
interest pursuant to Section 3.01 and Trust Certificates and of transfers and
exchanges of Trust Certificates as herein provided. The Chase Manhattan Bank
shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or shall cause The Chase Manhattan Bank
as its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Certificateholder, Trust Certificates may be exchanged for other Trust
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Trust Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.08.
10
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form prepared by the Depositor and satisfactory to the Owner Trustee and
delivered to the Owner Trustee and the Certificate Registrar (on which the Owner
Trustee and the Certificate Registrar may conclusively rely upon) duly executed
by the related Certificateholder or such Certificateholder's attorney duly
authorized in writing. Each Trust Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of 15 days preceding
the due date for any payment with respect to the Trust Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice delivered to the Owner Trustee in writing that
such Trust Certificate has been acquired by a bona fide purchaser, the Owner
Trustee on behalf of the Trust shall execute and the Owner Trustee or The Chase
Manhattan Bank, as the Owner Trustee's authenticating agent, shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Certificate, a new Trust Certificate of like tenor and
denomination. 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 ownership in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose name any
Trust Certificate is registered in the Certificate Register as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to Section
5.02 and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any Paying Agent shall be bound by any notice to the
contrary.
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Section 3.07. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer, the Trust Administrator and the Depositor, within 15 days after
receipt by the Certificate Registrar of a written request therefor from the
Servicer, the Trust Administrator or the Depositor, a list, in such form as the
Servicer, the Trust Administrator or the Depositor may reasonably require, of
the names and addresses of the Certificateholders as of the most recent Record
Date. If (i) three or more Owners or (ii) one or more Owners evidencing not less
than a Percentage Interest of 25% apply in writing to the Certificate Registrar,
and such application states that the applicants desire to communicate with other
Owners with respect to their rights under this Agreement or under the Trust
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 Owners.
The Depositor or initial Owner and each Certificateholder, by receiving and
holding a Trust Certificate, shall be deemed to have agreed not to hold any of
the Depositor, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the Borough of Manhattan, the City of New York, an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the Basic Documents
may be served. The Owner Trustee initially designates The Chase Manhattan Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its office for such purposes.
The Owner Trustee shall give prompt written notice to the Depositor and the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to the Owners in accordance with Section 5.02 and the Basic
Documents and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Trust Account for the purpose of making the distributions referred to above.
The Depositor may revoke such power and remove the Paying Agent if the Depositor
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent hereunder initially shall be the Trust Administrator, and any co-paying
agent chosen by the Trust Administrator. The Trust Administrator shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Depositor and the Owner Trustee. In the event that the Trust Administrator shall
no longer be the Paying Agent, the Depositor shall appoint a successor to act as
Paying Agent (which shall be a bank or trust company). The Depositor shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Depositor to execute and deliver to the Depositor and the Owner Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Depositor and the Owner Trustee that, as Paying Agent, such
12
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Owners in trust for the benefit of the Owners
entitled thereto until such sums shall be paid to such Owners. The Paying Agent
shall return all unclaimed funds to the Owner Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall
apply to the Trust Administrator also in its role as Paying Agent, for so long
as the Trust Administrator shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 3.10. Trust Certificate Transfer Restrictions.
(a) The Trust Certificates may not be acquired by or for the
account of (i) an employee benefit plan (as defined in Section 3(3) of
ERISA that is subject to the provisions of Title 1 of ERISA, (ii) a
plan described in Section 4975(e) (1) of the Code, or (iii) any Benefit
Plan. By accepting and holding a Trust Certificate, the Holder thereof
shall be deemed to have represented and warranted that it is not a
Benefit Plan. The Owner Trustee shall have no duty to determine whether
Trust Certificates are owned by a Benefit Plan.
(b) With the exception of the transfer to the Depositor
hereunder or any of its Affiliates and any transfer to the Issuer, the
Trust Certificates may not be offered or sold except to a "qualified
institutional buyer" as defined under Rule 144A promulgated under the
Securities Act (a "Qualified Institutional Buyer") or an " accredited
investor" as defined under Regulation D of the Securities Act (an
"Accredited Investor") in reliance on the exemption from the
registration requirements of the Securities Act provided by Regulation
D.
Each purchaser of the Trust Certificates shall deliver a letter in the
form of Exhibit C hereto, to the effect that:
(i) It is a Qualified Institutional Buyer as defined
in Rule 144A promulgated under the Securities Act and is
acquiring the Trust Certificates for its own institutional
account or for the account of a Qualified Institutional Buyer.
(ii) It understands that the Trust Certificates will
be offered in a transaction not involving any public offering
within the meaning of the Securities Act, and that, if in the
future it decides to resell, pledge or otherwise transfer any
Trust Certificates, such Trust Certificates may be resold,
pledged or transferred only (a) to the Depositor, any of its
affiliates or the Issuer (upon redemption) or (b) to a person
who the seller reasonably believes is a Qualified
Institutional Buyer or an Accredited Investor that purchases
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for its own account or for the account of a Qualified
Institutional Buyer or an Accredited Investor to whom notice
is given that the resale, pledge or transfer is being made in
reliance on Rule 144A or (c) pursuant to an effective
registration statement under the Securities Act.
(iii) It understands that the Trust Certificates will
bear a legend substantially to the following effect:
THE TRUST CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
OR "BLUE SKY" LAWS. THE HOLDER HEREOF, BY PURCHASING ANY TRUST
CERTIFICATE, AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH TRUST
CERTIFICATE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW
TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY (1) TO
THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE) OR THE DEPOSITOR OR
ANY OF THE DEPOSITOR'S AFFILIATES, (2) TO A PERSON THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR AN ACCREDITED INVESTOR IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER OR
ACCREDITED INVESTOR TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (3) IN A
TRANSACTION COMPLYING WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.
NO INTEREST IN THIS TRUST CERTIFICATE MAY BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii)
A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (INCLUDING, WITHOUT LIMITATION, INDIVIDUAL RETIREMENT
ACCOUNTS AND ▇▇▇▇▇ PLANS), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Owners in writing of the proposed action and the Owners shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Owners have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of
the Receivables and the Transferor Certificate) and the compromise of
any action, claim or lawsuit brought by or against the Trust (except
with respect to the aforementioned claims or lawsuits for collection of
the Receivables and the Transferor Certificate);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Base Indenture by a supplemental
indenture or any other change to this Agreement or any Basic Document
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Base Indenture by a supplemental
indenture or any other change to this Agreement or any Basic Document
in circumstances where the consent of any Noteholder is not required
and such amendment would materially adversely affect the interests of
the Owners;
(e) the amendment, change or modification of the Sale and
Servicing Agreement and the Administration Agreement, except to cure
any ambiguity or to amend or supplement any provision in a manner or
add any provision that would not materially adversely affect the
interests of the Owners;
(f) the appointment pursuant to the Base Indenture of a
successor Note Registrar, Paying Agent or Indenture Trustee or pursuant
to this Agreement of a successor Certificate Registrar, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee or Certificate Registrar of its obligations under the Base
Indenture or this Agreement, as applicable;
(g) the consent to the calling or waiver of any default of any
Basic Document;
15
(h) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Basic Document,
unless permitted in the Basic Documents;
(i) except as provided in Article IX hereof, dissolve,
terminate or liquidate the Trust in whole or in part;
(j) 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;
(k) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement or the Basic
Documents;
(l) do any act that would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(m) confess a judgment against the Trust;
(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, unless
permitted in the Basic Documents; or
(p) change the Trust's purpose and powers from those set forth
in this Trust 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 not pay the indebtedness, operating expenses and
liabilities of any other entity. The Trust shall maintain (or cause to be
maintained) appropriate minutes or other records of all appropriate actions and
shall maintain its office separate from the offices of the Depositor and the
Servicer.
The Owner Trustee shall not have the power, except upon the written
direction of the Owners, and to the extent otherwise consistent with the Basic
Documents, to (i) remove or replace the Servicer or the Indenture Trustee, (ii)
institute proceedings to have the Trust declared or adjudicated a bankruptcy or
insolvent, (iii) consent to the institution of bankruptcy or insolvency
proceedings against the Trust, (iv) 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, (v) 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, (vi) make
any assignment for the benefit of the Trust's creditors, (vii) cause the Trust
to admit in writing its inability to pay its debts generally as they become due,
(viii) take any action, or cause the Trust to take any action, in furtherance of
16
any of the foregoing (any of the above, a "Bankruptcy Action"). Notwithstanding
anything herein to the contrary, so long as the Base Indenture remains in effect
and any Series of Notes is outstanding, no Owner shall have the power to take,
and shall not take, any Bankruptcy Action with respect to the Trust or direct
the Owner Trust to take any Bankruptcy Action with respect to the Trust.
Section 4.02. Action by Owners with Respect to Certain Matters. The
Owner Trustee shall not have the power, except upon the written direction of the
Owners, to (a) remove the Trust Administrator under the Administration Agreement
pursuant to Section 8 thereof, (b) appoint a successor Trust Administrator
pursuant to Section 8 of the Administration Agreement, (c) remove the Servicer
under the Sale and Servicing Agreement pursuant to Section 10.01 and 10.02
thereof, (d) amend the Sale Servicing Agreement pursuant to 13.01 of such
document or (e) except as expressly provided in the Basic Documents, sell the
Receivables or the Transferor Certificate after the termination of the Base
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the Certificateholders.
Section 4.03. Action by Owners with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Owners and the delivery to the Owner Trustee by each such Owner of a
certification certifying that such Owner reasonably believes that the Trust is
insolvent, subject in all instances to Section 11.09 hereof.
Section 4.04. Restrictions on Owners' Power. The Owners shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Agreement or any of the Basic Documents or would be contrary
to Section 2.03; nor shall the Owner Trustee be obligated to follow such
direction, if given.
Section 4.05. Majority Control. Except as expressly provided herein,
any action that may be taken by the Owners under this Agreement may be taken by
the Owners evidencing not less than a majority of the Percentage Interest.
Except as expressly provided herein, any written notice of the Owners delivered
pursuant to this Agreement shall be effective if signed by Owners evidencing not
less than a majority of the Percentage Interest at the time of the delivery of
such notice.
Section 4.06. Execution of Documents. Notwithstanding anything herein
to the contrary, the Owner Trustee is authorized, empowered and directed, on
behalf of the Trust, to execute and file the Certificate of Trust, to execute,
deliver, issue and authenticate the Trust Certificates, to execute, deliver and
issue the Notes, and to execute and deliver each Basic Document to which the
Trust or the Owner Trustee is or is to be a party and any other document,
instrument, certificate or other writing that may be necessary, convenient or
incidental thereto. Any such execution, delivery, issuance and authentication is
hereby ratified and confirmed in all respects and does not and will be deemed
17
not to conflict with, constitute or result in a breach or violation of, or a
default under, any provision of or any duty under this Trust Agreement.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. [RESERVED].
Section 5.02. Application of Trust Funds.
(a) On each Payment Date, the Servicer, or Paying Agent
hereunder, will distribute to the Owners, on a pro rata basis, amounts
distributed with respect to the Trust Interest under the Basic
Documents pursuant to terms of the Sale and Servicing Agreement and
other Basic Documents with respect to such Payment Date.
(b) On each Payment Date, the Servicer on behalf of the Owner
Trustee shall send to each Owner, the statement or statements provided
to the Indenture Trustee by the Servicer pursuant to Section 3.04(b) of
the Sale and Servicing Agreement with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to an Owner such tax shall
reduce the amount otherwise distributable to such Owner, in accordance
with this Section. The Servicer, or Paying Agent hereunder, is hereby
authorized and directed to retain from amounts otherwise distributable
to the Owners, sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings
and withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings). The amount of any withholding tax imposed
with respect to an Owner, shall be treated as cash distributed to such
Owner, at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution (such as a
distribution to a non-U.S. Owner), the Servicer may in its sole
discretion withhold such amounts in accordance with this paragraph.
Any Owner that is organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date such Owner becomes an Owner,
(a) so notify the Owner Trustee, (b) (i) provide the Owner Trustee with Internal
Revenue Service form 1001, 4224, 8709 or W-8, as appropriate, or (ii) notify the
Owner Trustee that it is not entitled to an exemption from United States
withholding tax or a reduction in the rate thereof on payments of interest. Any
such Owner agrees by its acceptance of a Trust Certificate, on an ongoing basis,
to provide like certification for each taxable year and to notify the Owner
Trustee should subsequent circumstances arise affecting the information provided
the Owner Trustee in clauses (a) and (b) above. The Owner Trustee shall be fully
18
protected in relying upon, and each Owner by its acceptance of a Trust
Certificate hereunder agrees to indemnify and hold the Owner Trustee harmless
against all claims or liability of any kind arising in connection with or
related to the Owner Trustee's reliance upon any documents, forms or information
provided by any Owner to the Owner Trustee.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to each Owner, on any Payment Date shall be
made to each Owner of record, on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such Owner, at a
bank or other entity having appropriate facilities therefor, if such Owner,
shall have provided to the Servicer and the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Payment Date and
such Owner's Percentage Interest in the aggregate evidences not less than 25%
Percentage Interest or, if not, by check mailed to such Owner, if the Depositor,
at the address of the Depositor listed herein or if a Certificateholder at the
address of such Certificateholder, appearing in the Certificate Register.
Section 5.04. [Reserved].
Section 5.05. Accounting and Reports to Owners, the Internal Revenue
Service and Others. The Owner Trustee shall cooperate with the Trust
Administrator to (a) maintain (or cause to be maintained) the books of the Trust
on a calendar year basis and the accrual method of accounting, (b) deliver (or
cause to delivered) to each Owner, as may be required by the Code and applicable
Treasury Regulations, such information as may be required (including Schedule K-
1) to enable each Owner to prepare its federal and state income tax returns, (c)
file (or cause to be filed) such tax returns relating to the Trust (including a
partnership information return, IRS Form 1065) and make such elections as from
time to time may be required or appropriate under any applicable state or
federal statute or any rule or regulation thereunder so as to maintain the
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 as described in and in
accordance with Section 5.02(c) with respect to income or distributions to the
Owners. The Owner Trustee shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Receivables or the Transferor Certificate. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
Section 5.06. Signature on Returns Tax Matters Partner.
(a) Notwithstanding the provisions of 5.05, the Owner Trustee
shall sign on behalf of the Trust the tax returns of the Trust, if any,
furnished to it in final execution form by the Trust Administrator,
unless applicable law requires an Owner to sign such documents in which
case such documents shall be signed by the Depositor so long as it is
an Owner.
(b) In the event that the Trust were treated as a partnership
for federal income tax purposes then AIC, in its capacity as Trust
Administrator, shall be designated the "tax matters partner" of the
19
Trust pursuant to Section 623 l(a)(7)(A) of the Code and applicable
Treasury Regulations.
Section 5.07. No Segregation of Monies; No Interest. Subject to Section
5.02, monies received by the Owner Trustee hereunder need not be segregated in
any manner except to the extent required by law and may be deposited under such
general conditions as may be prescribed by law. The Owner Trustee shall not be
liable for any interest thereon.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents which the Trust is to be a
party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, 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 any Class of Notes of any Series
in an aggregate principal amount specified by the Depositor. 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 Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the Trust
Administrator recommends with respect to the Basic Documents.
Section 6.02. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and to administer the Trust in the interest of the
Owners, subject to the Basic Documents and in accordance with the provisions of
this Agreement; provided, however, that notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Trust Administrator
has agreed in the Administration Agreement, the Servicer has agreed in the Sale
and Servicing Agreement, or the Depositor has agreed hereunder or thereunder to
perform any act or to discharge any duty of the Owner Trustee or the Trust
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Trust Administrator, the Servicer or
the Depositor to carry out its obligations under the Administration Agreement,
the Sale and Servicing Agreement, any Basic Document or hereunder.
Section 6.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of
the Basic Documents, the Owners may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Owners pursuant to
Article IV.
20
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or
is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or under any Basic Document the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Owners requesting instruction as to the course of
action to be adopted, and to the extent the Owner Trustee acts in good
faith in accordance with any written instruction of the Owners
received, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 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 Basic Documents, as it shall deem to be in the
best interests of the Owners, and shall have no liability to any Person
for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic 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 Owners 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 Basic Documents as it shall
deem to be in the best interests of the Owners, and shall have no
liability to any Person for such action or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Assets, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03; and no implied duties or obligations
21
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or Lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any Liens on any part of the
Trust Assets that result from actions by, or claims against, the Owner Trustee
in its individual capacity that are not related to the ownership or the
administration of the Trust Assets.
Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Assets except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 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 Owners shall not direct the Owner Trustee to take action that would violate
the provisions of this Section.
Section 6.07. Administrative Duties.
(a) The Trust Administrator shall prepare or cause the
preparation by others of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the
Trust to prepare. The Administrator, on behalf of the Owner Trustee,
shall have the duty to file or deliver pursuant to the Base Indenture,
including any Series Supplement thereto, and any other Related Document
to which it is a party, certain documents, filings, instruments and
certificates with respect to certain matters under the Base Indenture
(as is set forth in greater detail in the Administration Agreement) and
the Owner Trustee shall have the duty to execute such documents,
filings, instruments and certificates provided to it in final execution
form with respect to the following matters under the Base Indenture and
any Series Supplement thereto (parenthetical sections and subsections
references are to sections and subsections of the Base Indenture):
(i) the duty to execute a New Series Issuance Notice to the
Trustee with respect to a New Series Issuance (2.2(a));
(ii) the duty to execute an Issuer Order directing the Indenture
Trustee to authenticate and deliver notes in connection with a
New Series Issuance and the duty to execute such Notes (2.2
(a)(i));
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(iii) the duty to execute an Issuer Request to release property from
the lien of the Base Indenture (2.14);
(iv) the duty to execute a Series Supplement in connection with a
New Series Issuance (2.2(a)(ii));
(v) the duty to execute and deliver further instruments to carry
out purposes of the Base Indenture (8.20) and
(vi) the duty to enter into one or more Series Supplement or
indenture supplement (13.1).
(b) The Depositor shall furnish to the Owner Trustee from time
to time such additional information regarding the Trust or the Basic
Documents as the Owner Trustee shall reasonably request.
(c) The Owner Trustee shall not be responsible for taking any
action with respect to this Section 6.07 unless a responsible officer
in the Corporate Trust Administration Department of the Owner Trustee
has actual knowledge or has received written notice of the need to take
such action.
(d) The rights and protections afforded to the Owner Trustee
pursuant to Article VII of this Agreement shall also be afforded to the
Owner Trustee with respect to the performance of its administrative
duties under this Section 6.07.
Section 6.08. Notice of Default Under Indenture. Within 10 Business
Days of receipt of a written notice of Default under the Indenture by a
Responsible Officer of the Owner Trustee, the Owner Trustee shall provide a copy
of such notice to each Owner.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. The
Owner Trustee shall not be answerable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own willful
misconduct or gross negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly made by the Owner
Trustee, or (iii) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or compensation received by the Owner Trustee in its
individual capacity. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
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(a) the Owner Trustee shall not be liable for any error of
judgment made by an officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Trust Administrator or any Owner;
(c) no provision of this Agreement or any Basic 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 Basic 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 Basic
Documents, including the principal of and interest on the Notes;
(e) except for the representations and warranties of the Owner
Trustee in Section 7.03 hereof, the Owner Trustee shall not be
responsible for or in respect of the validity or sufficiency of this
Agreement or for the due execution hereof by the Depositor or for the
form, character, genuineness, sufficiency, value or validity of any of
the Trust Assets, or for or in respect of the validity or sufficiency
of the Basic Documents other than the certificate of authentication on
the Trust Certificates, and the Owner Trustee shall in no event assume
or incur any liability, duty or obligation to any Owner or to any
Noteholder, other than as expressly provided for herein or expressly
agreed to in the Basic Documents;
(f) the Owner Trustee shall not be responsible for monitoring
the performance of, and shall not be liable for the default or
misconduct of the Trust Administrator, the Depositor, the Servicer or
the Indenture Trustee under any of the Basic 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 Basic
Documents that are required to be performed by the Trust Administrator
under the Administration Agreement, the Indenture Trustee under the
Base Indenture or the Depositor or the Servicer under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Owners, unless such
Owners 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 Basic Document shall not be construed as a duty,
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and the Owner Trustee shall not be answerable for other than its gross
negligence or willful misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Owners, 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
Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the Owners, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution or the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby, nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
(d) It is a corporation satisfying the provisions of Section 3
807(a) of the Business Trust Statute; is authorized to exercise
corporate trust powers; has a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or
state authorities; and has (or has a parent that has) time deposits
that are rated at least A-l by Standard & Poor's and P-1 by Moody's or
who is otherwise acceptable to each Rating Agency.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document
or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
25
resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith
in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this
Agreement or the Basic Documents, the Owner Trustee (i) may act
directly or through its agents or attorneys at the expense of the
Seller pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been
selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled Persons to be
selected with reasonable care and employed by it. The Owner Trustee
shall not be liable for anything done, suffered or omitted reasonably
and in good faith by it in accordance with the written opinion or
advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Chase Manhattan Bank
Delaware 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 Basic Document shall
look only to the Trust Assets for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for
Receivables. The recitals contained herein and in the Trust Certificates (other
than the signature and countersignature of the Owner Trustee on the Trust
Certificates) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no responsibility for the correctness thereof. Except as set
forth in Section 7.03, the Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the Trust
Certificates (other than the signature and countersignature of the Owner Trustee
on the Trust Certificates), or of any Receivable, the Transferor Certificate or
related documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, the Transferor Certificate or the perfection and priority of any
security interest created by any Receivable in any Premium Finance Obligation or
otherwise created in the Transferor Certificate or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Assets or its ability to generate the payments to be distributed to Owners under
this Agreement or to Noteholders under the Base Indenture, including, without
limitation: the existence and contents of any Receivable on any computer or
other record thereof; the validity of the assignment of any Receivable or the
26
Transferor Certificate to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation, or any action of the Trust
Administrator, the Indenture Trustee or the Servicer or any subservicer taken in
the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Trust Administrator, the Indenture Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
Section 7.08. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither Chase Manhattan Bank Delaware
nor the Owner Trustee shall be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will, even
after the appointment of a co-trustee or separate trustee in accordance with
Section 10.05 hereof, (i) require the consent or approval or authorization or
order of, or the giving of notice to, or the registration with, or the taking of
any other action as required by, any state or other governmental authority or
agency of any jurisdiction other than the State of Delaware; (ii) result in any
fee, tax or other governmental charge under the laws of any jurisdiction or any
political subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by the Trust or the Owner Trustee; or (iii)
subject Chase Manhattan Bank Delaware or the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of
action arising from acts unrelated to the consummation of the transactions by
Chase Manhattan Bank Delaware or the Owner Trustee, as the case may be,
contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Servicer under Section 8.01 of
this Agreement) to determine whether any action required to be taken pursuant to
the Agreement results in the consequences described in clauses (i), (ii) and
(iii) of the preceding sentence. In the event that said counsel advises the
Owner Trustee that such action will result in such consequences, the Owner
Trustee or the Depositor will appoint an additional trustee pursuant to Section
10.05 hereof to proceed with such action.
Section 7.09. Owner Trustee as Paying Agent. In the event the Owner
Trustee is also acting as Paying Agent or Certificate Registrar, the rights and
protections afforded to the Owner Trustee pursuant to this Article VII shall
also be afforded to the Paying Agent and Certificate Registrar.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Depositor shall
pay to the Owner Trustee as compensation for its services hereunder such fees as
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have been separately agreed upon before the date hereof between the Depositor
and the Owner Trustee, and the Depositor shall reimburse the Owner Trustee for
its other reasonable expenses hereunder including the reasonable compensation,
expenses and disbursements of agents, representatives, experts and counsel as
the Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
Section 8.02. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee, the Certificate Registrar,
and the Paying Agent and their officers, directors, successors, assigns, agents
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Basic Documents, the Trust Assets, the
administration of the Trust Assets or the action or inaction of the Indemnified
Parties hereunder, except only that the Depositor shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from any of the matters described in the second sentence of Section
7.01. The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section, the Owner Trustee's choice of legal counsel shall be
subject to the approval of the Depositor, which approval shall not be
unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid pursuant
to this Article VIII shall be deemed not to be a part of the Trust Assets
immediately after such payment.
Section 8.04. Non-recourse Obligations. Notwithstanding anything in
this Agreement or any Basic Document, the Owner Trustee agrees in its individual
capacity and in its capacity as Owner Trustee for the Trust that all obligations
of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust
shall be recourse to the Trust Estate only and specifically shall not be
recourse to the assets of any Owner.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust
shall terminate, dissolve and wind-up, in accordance with Section 3808
of the Business Trust Statute, and be of no further force or effect
upon the final distribution by the Servicer on behalf of the Owner
Trustee of all moneys or other property or proceeds of the Trust Assets
in accordance with the terms of the Business Trust Statute, the Base
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Indenture, the Sale and Servicing Agreement and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (i) operate to terminate this Agreement or
the Trust, 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
Trust Assets or (iii) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the
Depositor nor any Owner (if not the Depositor) shall be entitled to
revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Payment Date upon which Owners shall surrender their Trust Certificates
to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee upon written
direction by the Paying Agent (in a letter to each Owner mailed within
five Business Days of receipt of notice of termination from the
Servicer given pursuant to Section 11.04 of the Sale and Servicing
Agreement), stating (i) the Payment Date upon or with respect to which
final payment of the Trust Certificates shall be made upon presentation
and surrender of the Trust Certificates at the office of the Paying
Agent therein designated, (ii) the amount of a 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 Trust Certificates at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying
Agent at the time such notice is given to Owners. Upon presentation and
surrender of the Trust Certificates, the Paying Agent shall cause to be
distributed to Owners amounts distributable on such Payment Date
pursuant to Section 5.02.
In the event that all of the Owners 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 Owners to surrender their Trust Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Trust Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining Owners
concerning surrender of their Trust Certificates, and the cost thereof shall be
paid out of the funds and other assets that shall remain subject to this
Agreement. Any funds remaining in the Trust after exhaustion of such remedies
shall be distributed by the Owner Trustee to the Depositor, subject to
applicable escheat laws.
(d) Any funds remaining in the Trust after funds for final
distribution have been distributed or set aside for distribution shall
be distributed by the Owner Trustee to the Depositor.
29
(e) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust
Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least A-l
by Standard & Poor's and P-1 by Moody's, or which is otherwise acceptable to
each Rating Agency. If such corporation shall publish reports of condition at
least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to, the Depositor, the Trust Administrator, the
Servicer, the Indenture Trustee and the Rating Agencies. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section l0.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or its property
or affairs for the purpose of rehabilitation, conservation or liquidation, then
the Depositor may remove the Owner Trustee. If the Depositor shall remove the
Owner Trustee under the authority of the immediately preceding sentence, the
Depositor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
30
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee,
and shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to the Indenture Trustee and to each
Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.01 or 10.02 shall execute, acknowledge and
deliver to the Depositor and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested, with all 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, all 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 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Trust Administrator shall mail notice thereof to all Owners,
the Indenture Trustee, the Noteholders, and the Rating Agencies. If the Trust
Administrator shall fail to mail such notice within 10 days after acceptance of
such appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Trust Administrator.
Any successor Owner Trustee appointed pursuant to this Section 10.03
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further act
31
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation shall be eligible pursuant to
Section 10.01; and provided further, that the Owner Trustee shall mail notice of
such merger or consolidation to each Rating Agency; and provided further, that
such successor Owner Trustee shall file an amendment to the Certificate of Trust
as described in Section 10.03 if so required.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Owner Trustee and the Servicer
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee and the
Servicer to act as co-trustee, jointly with the Owner Trustee, or as separate
trustee or separate trustees, of all or any part of the Trust, 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 Owner Trustee pursuant
to Section 10.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Assets or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(c) The Owner Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
32
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Trust Administrator and the Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
each Rating Agency, without the consent of any of the Certificateholders to cure
any ambiguity, to correct any defect or supplement any provisions in this
Agreement which may be inconsistent with any other provision herein, to comply
with any changes in the Code, or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an AIC Opinion of Counsel and satisfaction of
the Rating Agency Condition with respect to such amendment, adversely affect in
any material respect the interests of any Noteholder or Owner.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to each Rating Agency, with the
consent of the Holders (as defined in the Base Indenture) of Notes evidencing a
Note Majority and the consent of the Owners evidencing not less than a majority
of the Percentage Interest, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the Owners;
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, the Transferor Certificate or distributions that shall
be required to be made for the benefit of the Noteholders or the Owners or (b)
reduce the aforesaid percentage of the outstanding principal amount of the Notes
and the Percentage Interest required to consent to any such amendment, without
the consent of the Holders of all then-outstanding Notes and Trust Certificates.
33
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Owner, the Indenture Trustee and each Rating
Agency.
It shall not be necessary for the consent of Owners or Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Owners provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by Owners
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
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.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an AIC Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Owner Trustee shall be entitled to receive and conclusively rely upon
an AIC Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
Section 11.02. No Legal Title to Trust Assets in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the Trust Assets. The Owners shall be entitled to receive distributions
with respect to their undivided ownership interest therein only in accordance
with Articles V and IX. No transfer, by operation of law or otherwise, of any
right, title interest of the Owners to and in their ownership interest in the
Trust Assets shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Assets.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Trust Administrator, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, 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
Trust Assets or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
34
Section 11.04. Notices.
(a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that
notice to the Owner Trustee shall be deemed given only upon actual
receipt by the Owner Trustee), if to the Owner Trustee, addressed to
the Corporate Trust Office; if to the Depositor, addressed to ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; telephone (▇▇▇) ▇▇▇-▇▇▇▇; or, as
to each party, at such other address as shall be designated by such
party in a written notice to each other party. A copy of any such
notice shall also be mailed to the Servicer, addressed to ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President.
(b) Any notice required or permitted to be given to an Owner,
if the Depositor or a Certificateholder, shall be given by first-class
mail, postage prepaid, at the address of the Depositor listed herein or
such Certificateholder 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 such
Owner receives such notice.
Section 11.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.06. Separate 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 but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor and its permitted assignees, the Owner Trustee and its successors and
each Owner and its successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by an
Owner shall bind the successors and assigns of such Owner.
Section 11.08. Covenants of the Depositor. The Depositor will not at
any time institute against the Trust any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or any
of the other Basic Documents.
35
Section 11.09. No Petition.
(a) The Depositor and the Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate,
and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will
not at any time institute against the Trust or join in any institution
against the Trust of, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificates, the Notes, this
Agreement or any of the Basic Documents.
(b) Each Certificate holder, by accepting a Trust Certificate,
hereby covenants and agrees that it will not at any time institute
against the Depositor, in its capacity as Depositor and as initial
Owner or the Trust or join in any institution against the Depositor, in
its capacity as Depositor and as initial Owner or the Trust of, any
bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating
to the Trust Certificates, the Notes, this Agreement or any of the
Basic Documents.
Section 11.10. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Trust Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or an
obligation of the Depositor, the Servicer, the Trust Administrator, the Owner
Trustee, the Indenture Trustee 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, the Trust Certificates or the Basic
Documents.
Section 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.13. Trust Certificate Transfer Restrictions. The Trust
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(l) of
the Code or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan.
36
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.
A. I. RECEIVABLES TRANSFER CORP.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
37
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
AIG CREDIT PREMIUM FINANCE MASTER TRUST
This CERTIFICATE OF TRUST of AIG CREDIT PREMIUM FINANCE MASTER TRUST
(the "Trust"), dated November 5, 1999, is being duly executed and filed by Chase
Manhattan Bank Delaware, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code ss. 3801 et
seq.).
(i) Name. The name of the business trust formed hereby is AIG
CREDIT PREMIUM FINANCE MASTER TRUST.
Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration.
Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
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.
CHASE MANHATTAN BANK DELAWARE,
as owner trustee
By:
--------------------------------
Name:
Title:
A-1
EXHIBIT B
FORM OF TRUST CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS TRUST CERTIFICATE IS PRESENTED TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL.
THE TRUST CERTIFICATES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE
SKY" LAWS. THE HOLDER HEREOF, BY PURCHASING ANY TRUST CERTIFICATE, AGREES FOR
THE BENEFIT OF THE ISSUER THAT SUCH TRUST CERTIFICATE IS BEING ACQUIRED FOR ITS
OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR
TRANSFERRED ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2)
TO A PERSON THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (3)
IN A TRANSACTION COMPLYING WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER JURISDICTION.
NO INTEREST IN THIS TRUST CERTIFICATE MAY BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (INCLUDING, WITHOUT
LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND ▇▇▇▇▇ PLANS), OR (iii) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH PLAN'S INVESTMENT
IN THE ENTITY (EACH A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE OWNER SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.
B-1
NUMBER __________% Percentage Interest
R-____
AIG CREDIT PREMIUM FINANCE MASTER TRUST
---------------------------------------
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which consists of: (1) the Receivables and all Collections received
thereon on or after the Initial Cut-off Date (other than Credit Balances); (2)
the security interest in the Premium Finance Obligations and any interest of the
Depositor in such Premium Finance Obligations; (3) any Enhancement; (4) the
Transferor Certificate and all monies received thereon after the Initial Cut-off
Date; (5) all of the Depositor's rights (but not its obligations) under the
Receivables Purchase Agreement and the Transferor Certificate Purchase
Agreement; (6) all right, title and interest in all funds on deposit from time
to time in the Trust Accounts; and (7) the proceeds of any and all of the
foregoing.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION OF
A.I. RECEIVABLES TRANSFER CORP. OR ANY OF ITS RESPECTIVE AFFILIATES.
THIS CERTIFIES THAT _________________ is the registered owner of
a______% Percentage Interest nonassessable, fully paid, fractional undivided
interest in AIG CREDIT PREMIUM FINANCE MASTER TRUST (the "Trust"), formed by
A.I. RECEIVABLES TRANSFER CORP., a Delaware corporation (the "Depositor").
The Trust was created pursuant to a Master Trust Agreement dated as of
November 5, 1999 (as amended or supplemented from time to time, the "Trust
Agreement"), between the Depositor and Chase Manhattan Bank Delaware, as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Trust
Agreement, the Base Indenture dated as of November 8, 1999 (as amended and
supplemented from time to time, (the "Base Indenture" among the Trust, the Owner
Trustee and Bank One, National Association, as Indenture Trustee) or the Sale
and Servicing Agreement dated as of November 8, 1999 (as amended and
supplemented from time to time, the "Sale and Servicing Agreement"), among the
Trust, the Depositor, as seller, A.I. Credit Corp., AICCO, Inc., Imperial
Premium Finance, Inc., Imperial Premium Finance, Inc., and Imperial Premium
Funding, Corp., as Servicer, and the Indenture Trustee, as applicable.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "Asset Backed Certificates" (herein called the "Trust
Certificates"). Also to be issued under the Base Indenture, are Asset Backed
Notes issued pursuant to a Series Supplement to the Base Indenture
(collectively, the "Notes"). This Trust Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the Holder of this Trust Certificate by virtue of its acceptance
hereof assents and by which such Certificateholder is bound. The property of the
B-2
Trust consists of the Receivables and the Transferor Certificate and all monies
received thereon on or after _______, 1999, security interests in the related
Premium Finance Obligations, certain bank accounts and the proceeds thereof, and
certain other rights under the Trust Agreement and the Sale and Servicing
Agreement and all proceeds of the foregoing.
There will be distributed on the 15th day of each month or, if such
15th day is not a Business Day, the next Business Day (each, a "Payment Date"),
commencing on ____, 1999, to the Person in whose name this Trust Certificate is
registered on the last day of the immediately preceding month (the "Record
Date"), such Certificateholder's Percentage Interest in the amount to be
distributed to Certificateholders on such Payment Date.
It is the intent of the Depositor, Servicer, and Certificateholders
that, for purposes of Federal income taxes, the Trust will be disregarded as an
entity apart from its owner if there is only one owner for Federal income tax
purposes, or, if there is more than one owner for Federal income tax purposes,
will be treated as a partnership the partners of which are the
Certificateholders. The Certificateholders by acceptance of a Trust Certificate,
agree to treat, and to take no action inconsistent with the treatment of, the
Trust and the Trust Certificates for such tax purposes as just described.
A Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, the Trust Agreement
or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Trust Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the
above, the final distribution on this Trust Certificate will be made after due
notice by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Trust Certificate at the office or agency
maintained for that purpose by the Owner Trustee in the Borough of Manhattan,
The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
It is expressly understood and agreed by the parties hereto that (a)
this Trust Certificate is executed and delivered by Chase Manhattan Bank
Delaware, not individually or personally but solely as Owner Trustee, in the
exercise of the powers and authority conferred and vested in it under the Trust
B-3
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Chase Manhattan Bank Delaware
but is made and intended for the purpose of binding only the Trust and (c) under
no circumstances shall Chase Manhattan Bank Delaware be personally liable for
the payment of any indebtedness or expenses of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trust under this Trust Certificate.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the Holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Trust Certificate to be duly
executed.
AIG CREDIT PREMIUM FINANCE MASTER TRUST
By: CHASE MANHATTAN BANK DELAWARE
not in its individual capacity but solely
as Owner Trustee
Dated: By:
------------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK CHASE MANHATTAN BANK
DELAWARE, not in its individual DELAWARE, not in its individual
capacity, but solely as Owner Trustee capacity, but solely as Owner Trustee
as Owner Trustee or as Owner Trustee
By: [ ], as
-------------------------
Authenticating Agent
By: By:
------------------------------- -------------------------------
Authorizing Agent Authorizing Agent
B-5
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee or any affiliates of
any of them and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement,
the Base Indenture (and any Series Supplement thereto), or the Basic Documents.
In addition, this Trust Certificate is not guaranteed by any governmental agency
or instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Receivables and the Transferor Certificate (and
certain other amounts), all as more specifically set forth herein, the Base
Indenture, (including any Series Supplement thereto) and in the Sale and
Servicing Agreement. A copy of each of the Base Indenture, any Series
Supplement, the Sale and Servicing Agreement and the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if any,
designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of Certificateholders under the Trust Agreement at any
time by the Depositor and the Owner Trustee with the consent of the Holders of
the Trust Certificates and the Notes, each voting as a class, evidencing not
less than a majority of the Percentage Interest of the Trust Certificate and a
Note Majority of the Notes. Any such consent by the Holder of this Trust
Certificate shall be conclusive and binding on such Owner and on all future
Holders of this Trust Certificate and of any Trust Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Trust Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the Borough of Manhattan, The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the Holder hereof
or such Holder's attorney duly authorized in writing, and thereupon one or more
new Trust Certificates of authorized denominations evidencing the same aggregate
interest in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is The Chase Manhattan
Bank.
Except as provided in the Trust Agreement, the Trust Certificates are
issuable only as registered Trust Certificates without coupons in denominations
of 25% Percentage Interest and in integral multiples of 1% Percentage Interest
in excess thereof; provided, however, that a single Trust Certificate may be
issued in such denomination as required to include any residual amount. As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Trust Certificates are exchangeable for new Trust Certificates of
B-6
authorized denominations evidencing the same aggregate denomination, as
requested by the Certificateholder surrendering the same. No service charge will
be made for any such registration of transfer or exchange, but the Owner Trustee
or the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Trust Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement, the
Base Indenture (including any Series Supplement thereto) and the Sale and
Servicing Agreement and the disposition of all property held as part of the
Trust Assets. The Depositor may at its option purchase the Trust Assets at a
price specified in the Base Indenture, and such purchase of the Receivables and
Transferor Certificate and other property of the Trust will effect early
retirement of the Trust Certificates; provided, however, that such right of
purchase is exercisable only as of the last day of any Interest Period as of
which the Pool Balance is less than or equal to 10% of the Original Pool
Balance.
The Trust Certificates may not be acquired by (a) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (b) a plan described in Section 4975(e)(l) of the Code or (c)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity or which uses plan assets to acquire Trust Certificates
(each, a "Benefit Plan"). By accepting and holding this Trust Certificate, the
Holder hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
B-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________, attorney, to transfer said
Trust Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
---------------------
Signature Guaranteed:
---------------------
B-8
EXHIBIT C
FORM OF QIB LETTER
[DATE]
Bank One, National Association
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Office
A.I. Receivables Transfer Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: AIG Credit Premium Finance Master Trust Series 1999-A Trust Certificates
Dear Sir:
In connection with our proposed purchase of the Trust Certificates
referred to above (the "Certificates"), we confirm that:
(1) We have received a copy of the Master Trust Agreement, dated
as of November 5, 1999 (the "Trust Agreement"), relating to
the Certificates and such other information and documents as
we deem necessary in order to make our investment decision. We
acknowledge that we have read and agree to the matters stated
in the Section entitled "Trust Certificate Transfer
Restrictions" of the Trust Agreement.
(2) We understand that any subsequent transfer of the Certificates
is subject to certain restrictions and conditions set forth in
the Trust Agreement, and we agree to be bound by, and not to
resell, pledge or otherwise transfer the Certificates except
in compliance with such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
(3) We understand that the offer and sale of the Certificates has
not been registered under the Securities Act and that the
Certificates may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Certificate within two
years after the later of the original issuance of the
Certificates or the last date on which such Certificate is
owned by an affiliate of A.I. Receivables Transfer Corp. (the
C-1
"Depositor"), we will do so only (A) to AIG Credit Premium
Finance Master Trust (the "Issuer") or the Depositor or any
Affiliate thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as
defined therein) or (C) pursuant to an effective registration
statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Certificates from
us a notice advising such person that resales of the
Certificates are restricted as stated herein.
(4) We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Issuer or
the Depositor and to the Trustee such certificates, legal
opinions and other information as the Issuer, the Depositor or
the Trustee may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us will
bear a legend to the foregoing effect.
(5) The Trust Certificates have not been registered under the
Securities Act of 1933, as amended or any state securities or
"Blue Sky Laws".
(6) The Certificates are being acquired for our own account and
not with a view to distribution and may be resold, pledged or
transferred only (1) to the Issuer (upon redemption thereof or
otherwise) or the Depositor or an Affiliate thereof, (2) to a
person we reasonably believe is a Qualified Institutional
Buyer in a transaction meeting the requirements of Rule 144A,
purchasing for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the
resale, pledge or other transfer is being made in reliance on
Rule 144A, (3) to a person we reasonably believe is an
Accredited Investor in a transaction meeting the requirements
of Regulation D or (4) in a transaction complying with the
registration requirements of the Securities Act and in
accordance with any applicable securities laws of any state of
the United States or any other jurisdiction.
(7) We acknowledge that neither the Issuer, nor the Depositor nor
the Trustee nor any person acting on the Issuer's, the
Depositor's or the Trustee's behalf has made any
representations concerning the Issuer or the Depositor or the
offer and sale of the Certificates, except as set forth in the
Trust Agreement.
(8) We acknowledge that the Issuer, the Depositor, the Trustee and
others will rely on the truth and accuracy of the foregoing
acknowledgements, representations and agreements, and agree
that if any of the foregoing acknowledgements, representations
and agreements are no longer accurate we shall promptly notify
the Issuer, the Depositor and the Trustee.
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(9) We are not acquiring the Certificates using assets subject to
Part 4 of Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA").
(10) The Issuer, the Depositor and the Trustee are entitled to rely
upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Sincerely,
[Name of Transferee]
By:
Name:
Title:
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