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EXHIBIT 4.1
TRUST AGREEMENT
Dated as of June 1, 2000
between
ARCADIA RECEIVABLES FINANCE CORP.
and
WILMINGTON TRUST COMPANY
Owner Trustee
ASSOCIATES AUTOMOBILE RECEIVABLES TRUST 2000-1
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...................................................................................1
SECTION 1.1. Definitions........................................................................1
SECTION 1.2. Usage of Terms.....................................................................3
SECTION 1.3. Section References.................................................................4
SECTION 1.4. Action by or Consent of Certificateholders.........................................4
ARTICLE II CREATION OF TRUST.............................................................................4
SECTION 2.1. Creation of Trust..................................................................4
SECTION 2.2. Office.............................................................................4
SECTION 2.3. Purposes and Powers................................................................4
SECTION 2.4. Appointment of Owner Trustee.......................................................5
SECTION 2.5. Initial Capital Contribution of Trust Estate.......................................5
SECTION 2.6. Declaration of Trust...............................................................5
SECTION 2.7. Liability of the Certificateholders................................................6
SECTION 2.8. Title to Trust Property............................................................6
SECTION 2.9. Situs of Trust.....................................................................6
SECTION 2.10. Representations and Warranties of the Depositor....................................6
SECTION 2.11. Federal Income Tax Treatment.......................................................7
SECTION 2.12. Covenants of the Certificateholders................................................8
ARTICLE III THE CERTIFICATES..............................................................................9
SECTION 3.1. Initial Ownership..................................................................9
SECTION 3.2. The Certificates...................................................................9
SECTION 3.3. Authentication of Certificates.....................................................9
SECTION 3.4. Registration of Transfer and Exchange of Certificates.............................10
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.................................12
SECTION 3.6. Persons Deemed Owners.............................................................12
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.........................12
SECTION 3.8. Maintenance of Office or Agency...................................................13
SECTION 3.9. Appointment of Paying Agent.......................................................13
ARTICLE IV ACTIONS BY OWNER TRUSTEE.....................................................................13
SECTION 4.1. Restriction on Power of Certificateholders........................................13
SECTION 4.2. Prior Notice to Certificateholders with Respect to Certain Matters................13
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy...........................14
SECTION 4.4. Restrictions on Certificateholders' Power.........................................14
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES...................................................15
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SECTION 5.1. Trust Accounts....................................................................15
SECTION 5.2. Application of Funds in Certificate Distribution Account..........................16
SECTION 5.3. Method of Payment.................................................................17
SECTION 5.4. No Segregation of Monies; No Interest.............................................17
SECTION 5.5. Accounting; Reports; Tax Returns..................................................17
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE........................................................18
SECTION 6.1. General Authority.................................................................18
SECTION 6.2. General Duties....................................................................18
SECTION 6.3. Action upon Instruction...........................................................19
SECTION 6.4. No Duties Except as Specified in this Agreement or
in Instructions...................................................................20
SECTION 6.5. No Action Except under Specified Documents or Instructions........................21
SECTION 6.6. Restrictions......................................................................21
SECTION 6.7. Administration Agreement..........................................................21
ARTICLE VII CONCERNING THE OWNER TRUSTEE.................................................................22
SECTION 7.1. Acceptance of Trustee and Duties..................................................22
SECTION 7.2. Furnishing of Documents...........................................................23
SECTION 7.3. Representations and Warranties....................................................23
SECTION 7.4. Reliance; Advice of Counsel.......................................................24
SECTION 7.5. Not Acting in Individual Capacity.................................................24
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes or Receivables...................24
SECTION 7.7. Owner Trustee May Own Certificates and Notes......................................25
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE................................................................25
SECTION 8.1. Owner Trustee's Fees and Expenses.................................................25
SECTION 8.2. Indemnification...................................................................25
SECTION 8.3. Non-recourse Obligations..........................................................26
ARTICLE IX TERMINATION..................................................................................26
SECTION 9.1. Termination of the Trust..........................................................26
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES...............................................................................28
SECTION 10.1. Eligibility Requirements for Owner Trustee........................................28
SECTION 10.2. Resignation or Removal of Owner Trustee...........................................28
SECTION 10.3. Successor Owner Trustee...........................................................29
SECTION 10.4. Merger or Consolidation of Owner Trustee..........................................29
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.....................................29
ARTICLE XI MISCELLANEOUS PROVISIONS.....................................................................31
SECTION 11.1. Amendment.........................................................................31
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SECTION 11.2. No Recourse.......................................................................32
SECTION 11.3. No Petition.......................................................................32
SECTION 11.4. Governing Law.....................................................................32
SECTION 11.5. Severability of Provisions........................................................32
SECTION 11.6. Certificates Nonassessable and Fully Paid.........................................32
SECTION 11.7. Third-Party Beneficiaries.........................................................33
SECTION 11.8. Counterparts......................................................................33
SECTION 11.9. Notices...........................................................................33
Exhibit A -- Form of Certificate of Trust........................................................ A-1
Exhibit B -- Form of Certificate................................................................. B-1
Exhibit C -- Form of Representation Letter....................................................... C-1
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THIS TRUST AGREEMENT, dated as of June 1, 2000, is made
between Arcadia Receivables Finance Corp., a Delaware corporation (the
"Seller"), and Wilmington Trust Company, a Delaware banking corporation, as
Owner Trustee (in such capacity, the "Owner Trustee").
In consideration of the mutual agreements herein contained,
and of other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. All terms defined in the Sale and
Servicing Agreement (defined below) shall have the same meaning in this
Agreement. Whenever capitalized and used in this Agreement, the following words
and phrases, unless otherwise specified, shall have the following meanings:
Administration Agreement: The Administration Agreement, dated
as of June 22, 2000, between the Administrator and the Trust, as the same may be
amended and supplemented from time to time.
Administrator: Wilmington Trust Company, a Delaware banking
corporation, or any successor Administrator under the Administration Agreement.
AFL: Arcadia Financial Ltd., a Minnesota corporation, and its
successors in interest.
Agreement or "this Agreement": This Trust Agreement, all
amendments and supplements hereto and all exhibits and schedules to any of the
foregoing.
Authentication Agent: Wilmington Trust Company, or its
successor in interest, and any successor authentication agent appointed as
provided in this Agreement.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.
Certificate: A certificate executed by the Owner Trustee on
behalf of the Trust evidencing a fractional undivided interest in the Trust,
substantially in the form attached hereto as Exhibit B.
Certificate Distribution Account: The account designated as
the Certificate Distribution Account in, and which is established and maintained
pursuant to, Section 5.1.
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Certificate Majority: Holders of Certificates representing
more than 50% of the interests of the Certificateholders as a whole.
Certificate of Trust: The Certificate of Trust in the form of
Exhibit A hereto filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.4.
Certificateholder or Holder: A Person in whose name a
Certificate is registered in the Certificate Register.
Code: The Internal Revenue Code of 1986, and applicable
federal regulations promulgated thereunder, as the same may be amended from time
to time.
Corporate Trust Office: The principal office of the Owner
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration; the telecopy number for such office on the date
of the execution of this Agreement is (▇▇▇) ▇▇▇-▇▇▇▇.
Depositor: The Seller in its capacity as depositor hereunder.
Dissolution Event: With respect to the Depositor, the
termination or dissolution of such Person, or the occurrence of an Insolvency
Event with respect to such Person.
Eligible Investments: The meaning assigned to such term in the
Sale and Servicing Agreement.
ERISA: The meaning assigned to such term in Section 3.4(e).
Expenses: The meaning assigned to such term in Section 8.2.
Indemnified Parties: The meaning assigned to such term in
Section 8.2.
Owner or Certificate Owner: With respect to any Certificate,
the Certificateholder.
Owner Trustee: Wilmington Trust Company, or its successor in
interest, acting not individually but solely as trustee, and any successor
trustee appointed as provided in this Agreement.
Paying Agent: Any paying agent or co-paying agent appointed
pursuant to Section 3.9, which initially shall be Wilmington Trust Company.
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Record Date: With respect to any Distribution Date, the close
of business on the last Business Day immediately preceding such Distribution
Date.
Related Documents: The Sale and Servicing Agreement, the
Indenture, the Certificates, the Notes, the Purchase Agreement, the Custodian
Agreement, the Administration Agreement, the Lockbox Agreement, the Depository
Agreement, the letter agreement between Associates Corporation of North America
and the underwriters of the Notes and the Underwriting Agreement among AFL, the
Seller and the underwriters of the Notes. The Related Documents executed by any
party are referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
Sale and Servicing Agreement: The Sale and Servicing
Agreement, dated as of June 1, 2000, among the Trust, the Seller and AFL, in its
individual capacity and as Servicer, as the same may be amended and supplemented
from time to time.
Secretary of State: The Secretary of State of the State of
Delaware.
Seller: Arcadia Receivables Finance Corp., a Delaware
corporation, or its successor in interest.
Servicer's Certificate: The Monthly Report delivered by the
Servicer to the Trust pursuant to Section 3.9 of the Sale and Servicing
Agreement.
Trust: The trust created by this Agreement, the estate of
which consists of the Trust Property.
Trust Accounts: The Collection Account, the Reserve Account,
the Certificate Distribution Account, the Note Interest Distribution Account and
the Principal Distribution Account.
Trust Property: The property and proceeds of every description
conveyed pursuant to Section 2.5 hereof and Section 2.1 of the Sale and
Servicing Agreement, together with the Trust Accounts (including all Eligible
Investments therein and all proceeds therefrom).
SECTION 1.2. Usage of Terms. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation." To the extent that definitions are contained in this Agreement, or
in any such certificate or other document, such definitions shall control.
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SECTION 1.3. Section References. All references to Articles,
Sections, paragraphs, subsections, exhibits and schedules shall be to such
portions of this Agreement unless otherwise specified.
SECTION 1.4. Action by or Consent of Certificateholders.
Except as expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by a Certificate Majority.
Except as expressly provided herein, any written notice or consent of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of the Certificates evidencing not less than a Certificate
Majority at the time of the delivery of such notice.
ARTICLE II
CREATION OF TRUST
SECTION 2.1. Creation of Trust. There is hereby formed a trust
to be known as "Associates Automobile Receivables Trust 2000-1," in which name
the Trust may conduct business, make and execute contracts and other instruments
and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and
the Certificates pursuant to this Agreement and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to
fund the Reserve Account, to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance to the
Seller pursuant to the Sale and Servicing Agreement and this Agreement;
(iii) to assign, grant, transfer, pledge, mortgage
and convey the Trust Property to the Indenture Trustee on behalf of the
Noteholders and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Sale and Servicing Agreement any portion
of the Trust Property released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under
the Related Documents to which it is to be a party;
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(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Related
Documents, to engage in such other activities as may be required in
connection with conservation of the Trust Property and the making of
distributions to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or expressly authorized by the terms of this Agreement or
the Related Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $10. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Property and
shall be deposited in the Certificate Distribution Account. The Depositor shall
pay organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein, subject to the interests and rights in the Trust
Property granted to other Persons by the Related Documents. It is the intention
and agreement of the parties hereto that the Trust constitutes a business trust
under the Business Trust Statute and that this Agreement constitutes the
governing instrument of such business trust. It is the intention and agreement
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership. None of the parties hereto shall make
the election provided in Treasury Regulation Section 301.7701-3(c) to have the
Trust classified as an association taxable as a corporation. The parties agree
that, unless otherwise required by appropriate tax authorities, the Servicer, on
behalf of the Trust, will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as a partnership for such tax purposes. On the date hereof, the Owner
Trustee shall file the Certificate of Trust required by Section 3810(a) of the
Business Trust Statute in the Office of the Secretary of State. Effective as of
the 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.
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SECTION 2.7. Liability of the Certificateholders. Except as
otherwise provided herein, no Certificateholders shall have any personal
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
Related Document.
SECTION 2.8. Title to Trust Property.
(a) Legal title to all the Trust Property shall be vested at
all times in the Trust as a separate legal entity except where applicable law in
any jurisdiction requires title to any part of the Trust Property to be vested
in a trustee or trustees, in which case title shall be deemed to be vested in
the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be.
(b) The Certificateholders shall not have legal title to any
part of the Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to its undivided beneficial ownership interest in the
Trust only in accordance with Articles V and IX. No transfer, by operation of
law or otherwise, of any right, title or interest by any Certificateholder of
its beneficial ownership interest in the Trust Property shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
SECTION 2.9. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee, the
Servicer or any agent of the Trust from having employees within or without the
State of Delaware. Payments will be received by the Trust only in Delaware, and
payments will be made by the Trust only from Delaware. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties with respect to itself on which the Owner Trustee
relies in accepting the Trust Property in trust and issuing the Certificates.
(a) Organization and Good Standing. It has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct
its business as such properties are currently owned and as such business is
currently conducted and is proposed to be conducted pursuant to this Agreement
and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary licenses
and approvals, in all jurisdictions in which the ownership or lease of its
property, the conduct of its business and the performance of its obligations
under this Agreement and the Related Documents requires such qualification.
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(c) Power and Authority. It has the power and authority to
execute and deliver this Agreement and its Related Documents and to perform its
obligations pursuant thereto; and the execution, delivery and performance of
this Agreement and its Related Documents have been duly authorized by all
necessary corporate action.
(d) No Consent Required. No consent, license, approval or
authorization or registration or declaration with, any Person or with any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement and the Related Documents,
except for such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and its Related Documents and the fulfillment of
its obligations under this Agreement and its Related Documents shall not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default under, its
certificate of incorporation or by-laws, or any indenture, agreement, mortgage,
deed of trust or other instrument to which it is a party or by which it is
bound, or result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, or violate any law, order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge, threatened against it before any court, regulatory
body, administrative agency or other tribunal or governmental instrumentality
having jurisdiction over it or its properties, (A) asserting the invalidity of
this Agreement or any of the Related Documents, (B) seeking to prevent the
issuance of the Certificates or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Related Documents, (C)
seeking any determination or ruling that might materially and adversely affect
its performance of its obligations under, or the validity or enforceability of,
this Agreement or any of the Related Documents, or (D) seeking to adversely
affect the federal income tax or other federal, state or local tax attributes of
the Certificates.
SECTION 2.11. Federal Income Tax Treatment. The Seller and the
Owner Trustee agree to treat, and to take no action inconsistent with the
treatment of, the Notes as indebtedness for purposes of federal, state, local
and foreign income or franchise taxes and any other tax imposed on or measured
by income. Furthermore, subject to Section 4.1, the Seller and the Owner Trustee
shall treat the Trust as a security device only, and shall not file tax returns
or obtain an employer identification number on behalf of the Trust.
In the event that any class of Notes is deemed to represent an
equity interest in the Trust, the Trust shall be treated for federal income tax
purposes as a partnership among the Holders of such Notes and the Seller. In the
event such a partnership if deemed to exist, the net income of the Trust for any
month as determined for federal income tax purposes (and each item of income,
gain, loss, deduction and credit, if any, entering into the computation thereof)
shall be allocated:
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(a) among the Certificateholders in equal
proportions; and
(b) in the event the Noteholders of any class are
deemed to be partners of the partnership created hereby, among such
Noteholders as of the first Determination
Date following the end of such month in proportion to their ownership
of the principal amount of Notes of such class on such date, in an
amount of such income up to the sum of the monthly Interest
Distributable Amount for such class for the related Distribution Date,
and the balance thereof shall be allocated to the Certificateholders in
accordance with clause (a) above. If the net income of the Trust for
any succeeding month is insufficient for the allocations to Noteholders
described in this clause (b), if applicable, net income shall first be
allocated to such Noteholders to make up such shortfall before being
allocated to Certificateholders as provided above.
In the event the Noteholders of any class are deemed
to be partners of the partnership created hereby, net losses of the
Trust, if any, for any month as determined for federal income tax
purposes (and each item of income, gain, loss and deduction entering
into the computation thereof) shall be allocated to the
Certificateholders to the extent the Certificateholders are reasonably
expected to bear the economic burden of such net losses, then net
losses shall be allocated among the Noteholders as of the first
Determination Date following the end of such month in proportion to
their ownership of principal amount of Notes of such class on such
Determination Date. The Certificateholders are authorized to modify the
allocations in this paragraph if necessary or appropriate, in their
sole discretion, for the allocations to fairly reflect the economic
income, gain or loss to the Certificateholders or the Noteholders, or
to comply with the provisions of the Code and the accompanying Treasury
Regulations.
SECTION 2.12. Covenants of the Certificateholders. Each
Certificateholder by becoming the owner of the Certificates agrees:
(a) to be bound by the terms and conditions of the
Certificates of which such Certificateholder is the 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 any other future Certificateholders;
(b) to hereby appoint the Depositor as such Owner's
agent and attorney- in-fact to sign any federal income tax information
return filed on behalf of the Trust and agree that, if requested by the
Trust, it will sign such federal income tax information return in its
capacity as holder of an interest in the Trust. Each 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;
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(c) if such Owner is other than an individual or
other entity holding its Certificate through a broker who reports
securities sales on Form 1099-B, to notify the Owner Trustee of any
transfer by it of a Certificate in a taxable sale or exchange, within
30 days of the date of the transfer; and
(d) until the completion of the events specified in
Section 9.1(e), 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
THE CERTIFICATES
SECTION 3.1. Initial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Certificates, the Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.2. The Certificates. The Certificates shall be
evidenced by a single certificate issued on the Closing Date to Arcadia
Receivables Finance Corp. VI. The Certificates shall be executed on behalf of
the Trust by the Owner Trustee by manual or facsimile signature of any
authorized signatory of the Owner Trustee having such authority under the Owner
Trustee's seal imprinted or otherwise affixed thereon and attested on behalf of
the Owner Trustee by the manual or facsimile signature of any authorized
signatory of the Owner Trustee. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures were
affixed, authorized to sign on behalf of the Owner Trustee shall be validly
issued and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates.
SECTION 3.3. Authentication of Certificates. Simultaneously
with the sale, assignment and transfer to the Trust of the Receivables and the
delivery to the Owner Trustee of the Receivable Files and the other Trust
Property pursuant to the Sale and Servicing Agreement, the Owner Trustee shall
cause a single Certificate to be executed on behalf of the Trust, authenticated
and delivered to or upon the order of Arcadia Receivables Finance Corp. VI. No
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit B,
executed by the Owner Trustee or the Authentication Agent, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and
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delivered hereunder. Wilmington Trust Company is hereby initially appointed as
Authentication Agent. All Certificates shall be dated the date of their
authentication.
SECTION 3.4. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall maintain, or
cause to be maintained, at the office or agency maintained pursuant to
Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as provided in this Agreement.
The Owner Trustee is hereby appointed initial Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as provided in this Agreement.
(b) Upon surrender for registration of transfer of
any Certificate at the office or agency maintained pursuant to Section
3.8, and compliance with subsection (c), the Owner Trustee shall
execute, authenticate and deliver (or shall cause the Authentication
Agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates, dated the date
of authentication by the Owner Trustee or any authenticating agent. At
the option of a Holder, Certificates may be exchanged for other
Certificates of the same class in authorized denominations of a like
aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8.
(c) (1) No transfer of a Certificate shall be made by
Arcadia Receivables Finance Corp. VI or any other Person unless such
transfer is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Act"), and any applicable state
securities laws or is made in accordance with the Act and laws. In the
event that any such transfer is to be made, (A) the Depositor may
require a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the Act and laws or is being made pursuant to the
Act and laws, which Opinion of Counsel shall not be an expense of the
Owner Trustee or the Depositor, and (B) the Owner Trustee shall require
the transferee to execute an investment letter substantially in the
form of Exhibit C attached hereto, which investment letter shall not be
an expense of the Owner Trustee or the Depositor. Any Certificateholder
desiring to effect such transfer shall, and does hereby agree to,
indemnify the Owner Trustee, the Depositor and the Certificate
Registrar against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state
laws. In addition, no transfer of a Certificate shall be made by
Arcadia Receivables Finance Corp. VI or any other person to an
Affiliate of the Servicer or the Seller without (i) the written Opinion
of Counsel acceptable to and in form and substance satisfactory to the
Depositor that in the event the Servicer or the Seller became a debtor
under the United States Bankruptcy Code, a court exercising reasonable
judgment under then existing statutes and precedents would not order
that the assets of such Affiliate be consolidated with those of the
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Servicer or the Seller, which opinion shall not be an expense of the
Owner Trustee or the Depositor, and (ii) written notification from each
Rating Agency to the effect that such transfer will not cause such
Rating Agency to downgrade its then-current ratings, if any, of any of
the Notes below the lower of the then-current rating or the rating
assigned to such Notes as of the Closing Date by such Rating Agency.
(2) Any transfer, sale or other disposition
not in compliance with the provisions of this Section 3.4(c) shall be
deemed to be void and of no legal force or effect whatsoever and such
transferee shall be deemed to not be the Certificateholder for any
purpose hereunder, including, but not limited to, the receipt of
distributions on such Certificate, and shall be deemed to have no
interest whatsoever in such Certificate.
(d) No service charge shall be made for any
registration of transfer or exchange of Certificates, but the Owner
Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any expense, tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(e) The Certificates may not be acquired by or for
the account of (i) a pension, profit sharing or other employee benefit
plan, or an individual retirement account or ▇▇▇▇▇ plan, subject to
Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or Section 4975 of the Internal Revenue Code of 1986,
as amended (a "Benefit Plan"), or (ii) any entity whose underlying
assets include "plan assets" (within the meaning of Department of Labor
("DOL") Regulation Section 2510.3-101, 29 C.F.R. Section 2510.3-101 or
otherwise under ERISA) by reason of a Benefit Plan's investment in the
entity, including, without limitation, an insurance company acting on
behalf of its general account.
(f) Notwithstanding anything contained herein to the
contrary, the Owner Trustee and the Certificate Registrar shall not be
responsible for ascertaining whether any transfer complies with the
registration provisions or exemptions from the Act, the Securities and
Exchange Act of 1934, as amended, or applicable state securities law or
the Investment Company Act of 1940, as amended; provided, however, that
if a certificate is specifically required to be delivered to the Owner
Trustee by a purchaser or transferee of a Certificate, the Owner
Trustee shall be under a duty to examine the same to determine whether
it conforms to the requirements of this Agreement and shall promptly
notify the party delivering the same if such certificate does not so
conform.
(g) Notwithstanding the preceding provisions of this
Section, the Owner Trustee shall not be required to make, and the
Certificate Registrar shall not be required to register, transfers or
exchanges of Certificates for a period of 15 days preceding the due
date for any payment with respect to the Certificates.
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SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates.
If (a) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (b) there
is delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee on
behalf of the Trust shall execute, authenticate and deliver (or the
Authentication Agent shall authenticate and deliver), in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor. In connection with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee may require the payment of a sum sufficient to
cover any expense, tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Owner Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.5 shall constitute conclusive
evidence of beneficial ownership in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 3.6. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.2 and for all other purposes
whatsoever, and neither the Owner Trustee, the Certificate Registrar nor any
agent of the Owner Trustee or the Certificate Registrar shall be affected by any
notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses.
The Owner Trustee shall furnish or cause to be furnished to
the Servicer, within 15 days after receipt by the Owner Trustee of a written
request therefor, a list, in such form as the Servicer may reasonably require,
of the names and addresses of the Certificateholders as of the most recent
Record Date for payment of distributions to Certificateholders. If three or more
Certificateholders of a Class, or one or more Certificateholders holding not
less than 25% of the interests of the Certificateholders as a whole (hereinafter
referred to as "Applicants"), apply in writing to the Owner Trustee, and such
application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication that such
Applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such Applicants
access, during normal business hours, to the current list of Certificateholders.
Every Certificateholder, by receiving and holding a Certificate, agrees that
none of the Servicer or the Owner Trustee, nor any agent thereof, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders under this Agreement, regardless of the
source from which such information was derived.
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SECTION 3.8. Maintenance of Office or Agency. The Owner
Trustee shall maintain in Wilmington, Delaware, an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Owner Trustee in
respect of the Certificates and the Related Documents may be served. The Owner
Trustee initially designates Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as its principal corporate trust
office for such purposes. The Owner Trustee shall give prompt written notice to
the Depositor and to the Certificateholder of any change in the location of the
Owner Trustee of any such office or agency.
SECTION 3.9. Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Trust hereby
appoints Wilmington Trust Company as Paying Agent. Wilmington Trust Company
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Owner Trustee. In the event that Wilmington Trust Company shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee, and upon removal of
a Paying Agent, such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall
apply to the Owner Trustee also in its role as Paying Agent for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Restriction on Power of Certificateholders. The
Certificateholders shall not have any right to vote or in any manner otherwise
control the operation and management of the Trust except as expressly provided
in this Agreement.
SECTION 4.2. Prior Notice to Certificateholders with Respect
to Certain Matters. The Owner Trustee shall not take any of the following
actions, unless at least 30 days before the taking
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of such action, the Owner Trustee shall have notified the Certificateholders in
writing of the proposed action and the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice is
given that such Certificateholders has withheld consent or provided alternative
direction:
(a) the initiation of any material claim or lawsuit
by the Trust except claims or lawsuits brought in connection with the
collection of the Receivables and the compromise of any material
action, claim or lawsuit brought by or against the Trust (except with
respect to the aforementioned claims or lawsuits for collection of the
Receivables);
(b) the election by the Trust to file an amendment to
the Certificate of Trust unless such amendment is required to be filed
under the Business Trust Statute;
(c) the amendment of the Indenture by a supplemental
indenture (i) in circumstances where the consent of any Noteholder is
required or (ii) in circumstances where the consent of the Noteholders
is not required unless such amendment would not, based upon an Opinion
of Counsel on which the Owner Trustee may rely, materially and
adversely affect the interests of the Certificateholders; or
(d) the amendment, change or modification of the
Administration Agreement or the Sale and Servicing Agreement, unless
such amendment would not, based upon an Opinion of Counsel on which the
Owner Trustee may rely, materially and adversely affect the interests
of the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the prior written consent
of the Certificateholders and the delivery to the Owner Trustee by the
Certificateholders of a certificate certifying that the Certificateholders
reasonably believe that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Related
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to determine if a Certificateholder's direction violates this Section
4.4 or to follow any such direction, if given.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Trust Accounts.
(a) On or prior to the Closing Date, the Depositor
shall cause the Servicer to establish the Certificate Distribution
Account in the name of the Owner Trustee for the benefit of the
Certificateholders. The Certificate Distribution Account shall be an
Eligible Account and initially shall be a segregated trust account
established with the Owner Trustee and maintained with the Owner
Trustee.
(b) The Trust shall possess all right, title and
interest in all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Account, the
Owner Trustee shall within 5 Business Days (or such longer period, not
to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Certificate Distribution Account as an Eligible Account
and shall transfer any cash and/or any investments to such new
Certificate Distribution Account.
(c) All amounts held in the Certificate Distribution
Account shall, to the extent permitted by applicable laws, rules and
regulations, be invested by the Paying Agent in Eligible Investments
pursuant to the written instructions of the Administrator that mature
not later than one Business Day prior to the Distribution Date for the
Monthly Period to which such amounts relate. Investments in Eligible
Investments shall be made in the name of the Trust, and such
investments shall not be sold or disposed of prior to their maturity.
Any investment of funds in the Certificate Distribution Account shall
be made in Eligible Investments held by a financial institution with
respect to which (a) such institution has noted the Trust's interest
therein by book entry or otherwise and (b) a confirmation of the
Trust's interest has been sent to the Owner Trustee by such
institution, provided that such Eligible Investments are (i) specific
certificated securities, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation in New
York or Delaware, registered in the name of such clearing corporation,
not endorsed for collection or surrender or any other purpose not
involving transfer, not containing any evidence of a right or interest
inconsistent with the Trust's security interest therein, and held by
such clearing corporation in an account of such institution. Subject to
the other provisions hereof, the Paying Agent shall have sole control
over each such investment and the income thereon, and any certificate
or other instrument evidencing any such investment, if any, shall be
delivered directly to the Trust or its agent, together with each
document of transfer, if any, necessary to transfer title to such
investment to the Trust in a manner which complies with this Section
5.1. All interest, dividends, gains upon sale and other income from, or
earnings on investment of funds in the Certificate Distribution Account
shall be distributed on the next Distribution Date pursuant to Section
5.2(a). The Servicer shall deposit
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in the Certificate Distribution Account an amount equal to any net loss
on such investments immediately as realized.
SECTION 5.2. Application of Funds in Certificate Distribution
Account.
(a) On each Distribution Date, the Paying Agent will,
based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 3.9 of
the Sale and Servicing Agreement, distribute to Certificateholders, on
a pro rata basis to the extent of the funds available, amounts and
deposited in the Certificate Distribution Account pursuant to the Sale
and Servicing Agreement.
(b) On the Distribution Date following the date on
which amounts received in respect of the Servicer's exercise of its
option to purchase the corpus of the Trust pursuant to Section 9.1(a)
of the Sale and Servicing Agreement are deposited in the Certificate
Distribution Account, the Paying Agent will distribute such amounts to
Certificateholders in the manner described in Section 5.2(a).
(c) On the Distribution Date following the date on
which the Indenture Trustee makes payments of money or property in
respect of liquidation of the Trust Property pursuant to Section 5.06
of the Indenture and deposits funds received in connection with such
liquidation in the Certificate Distribution Account, the Paying Agent
will distribute such funds to Certificateholders in the manner
described in Section 5.2(a).
(d) On each Distribution Date, the Owner Trustee
shall send or cause to be sent to each Certificateholder the statement
required pursuant to Section 4.8 of the Sale and Servicing Agreement.
(e) To the extent required by the Code, the Servicer
shall notify the Paying Agent of the amount, if any, to be withheld,
and the Paying Agent shall withhold from each payment due hereunder or
under any Certificate, United States withholding taxes at the
appropriate rate, and, on a timely basis, to deposit such amounts with
an authorized depository and make such returns, filings and other
reports in connection therewith as are required of it under the Code.
Any Certificateholder which is eligible for an exemption from or
reduction of withholding of United States federal income taxes shall,
from time to time, provide to the Servicer, the Owner Trustee and the
Paying Agent in a timely manner all appropriate and properly completed
forms indicating such eligibility, as may be necessary to permit the
Paying Agent not to withhold taxes from payments due to such
Certificateholder. In connection with the foregoing, upon request, the
Owner Trustee shall promptly furnish or cause to be furnished to each
Certificateholder in a timely fashion such U.S. Treasury forms as are
required by the Code to be furnished to such Certificateholder
indicating payment of any taxes withheld from any payments by the
Paying Agent to such Certificateholder. The Owner Trustee and the
Paying Agent shall be fully protected in relying upon, and each
Certificateholder by its acceptance of a Certificate hereunder agrees
to indemnify and hold the Owner Trustee, the Paying Agent and the
Servicer harmless against all claims or liability of any kind arising
in connection with or related to the Owner Trustee's or the Paying
Agent's reliance upon any documents, forms or information provided by
any Certificateholder to the Owner Trustee, the
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Paying Agent or the Owner Trustee. In addition, if the Paying Agent has
not withheld taxes on any payment made to any Certificateholder, and
the Paying Agent is subsequently required to remit to any taxing
authority any such amount not withheld, such Certificateholder shall
return such amount to the Paying Agent upon written demand by the
Paying Agent. In no event shall the Owner Trustee or the Paying Agent
be liable for consequential damages to any Certificateholder.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and such Holder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000, or, if not, by check mailed to such Certificateholder at
the address of such holder appearing in the Certificate Register.
SECTION 5.4. No Segregation of Monies; No Interest. Any monies
received by the Owner Trustee or Paying Agent 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, and, except as provided
herein, the Paying Agent and the Owner Trustee shall not be liable for any
interest thereon.
SECTION 5.5. Accounting; Reports; Tax Returns.
(a) It is the intention of the parties that the Trust
will be treated as a partnership for tax purposes. Accordingly, the
Administrator has agreed pursuant to the Administration Agreement that
the Administrator shall, as appropriate: (i) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the
accrual method of accounting, (ii) upon request, deliver to each
Certificateholder, as may be required by the Code, such information as
may be required to enable each Certificateholder to prepare its federal
and state income tax returns, (iii) obtain a federal tax identification
number for the Trust, and file or cause to be filed such tax returns
relating to the Trust (once such returns are delivered to it in final
form), and direct the Owner Trustee to make such elections as may from
time to time be required or appropriate under any applicable state or
federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization as a partnership for federal income tax
purposes, (iv) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(f) with respect to
income or distributions to Certificateholders and (v) cooperate in the
filing of all documents required to be filed by the Trust with the
Securities and Exchange Commission and otherwise take or cause to be
taken all
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such actions as are notified by the Servicer to the Administrator as
being required for the Trust's compliance with all applicable
provisions of state and federal securities laws.
(b) The Owner Trustee shall sign on behalf of the
Trust the tax returns of the Trust provided it in execution form,
unless applicable law requires the Certificateholders to sign such
documents, in which case such documents shall be signed by the
Certificateholders.
(c) None of the parties hereto shall make the
election provided in Treasury Regulation Section 301.7701-3(c) to have
the Trust classified as an association taxable as a corporation.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Related Documents to which
the Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Related Documents to which the Trust is to be
a party and any amendment thereto, and on behalf of the Trust, to direct the
Indenture Trustee to authenticate and deliver the Class A-1 Notes in the
aggregate principal amount of $207,000,000, the Class A-2 Notes in the aggregate
principal amount of $92,000,000, the Class A-3 Notes in the aggregate principal
amount of $301,000,000, the Class M Notes in the aggregate principal amount of
$64,583,000, and the Class B Notes in the aggregate principal amount of
$85,417,000. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Related Documents. The Owner Trustee is further authorized, on behalf of the
Trust, to enter into the Administration Agreement, to appoint a successor
Administrator and to take from time to time such action as the Instructing Party
recommends with respect to the Related Documents so long as such actions are
consistent with the terms of the Related Documents.
SECTION 6.2. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed from time to time) all of its responsibilities
pursuant to the terms of this Agreement and the Related Documents and to
administer the Trust, subject to the Related Documents and in accordance with
the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Related Documents to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any Related Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement. Notwithstanding
anything herein or in any Related Document to the contrary, the Owner Trustee
shall discharge its obligations pursuant to Section 8.2 and Section 8.3 of the
Sale and Servicing Agreement directly and not through the Administrator or any
agent.
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SECTION 6.3. Action upon Instruction.
(a) Subject to Article IV, the Certificateholders shall have
the exclusive right to direct the actions of the Owner Trustee in the management
of the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Related Document. The Certificateholders shall
not instruct the Owner Trustee in a manner inconsistent with this Agreement or
the Related Documents. Notwithstanding the foregoing, the Owner Trustee shall,
upon due authorization and consent by the Seller, execute and deliver such
notices, consents to the service of process and other necessary registration
forms as may be required to qualify the Trust under the securities laws of any
jurisdiction in which the underwriters of the Trust's securities may seek to
qualify the securities for sale. The Trust is not hereby authorized
without the express consent of the Seller to qualify the Seller as a foreign
corporation or to execute on behalf of the Seller a general consent to service
of process in any jurisdiction.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Related Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is contrary to the terms hereof or of any Related Document or is otherwise
contrary to law.
(c) No provision of this Agreement shall require the Owner
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) In accepting the trusts hereby created, the Owner Trustee
acts solely as trustee hereunder and not in its individual capacity. The Owner
Trustee agrees to disburse any monies actually received by it constituting part
of the Trust Property upon the terms of this Agreement. Notwithstanding anything
in this Agreement to the contrary, the Owner Trustee, when acting in such
capacity, shall not be personally liable or accountable to any Person, under any
circumstances, except by reason of its gross negligence, willful misconduct or
breach of its representations, warranties or covenants.
(e) The Owner Trustee shall be under no liability (except as
provided in (d) above) for any action taken by the Owner Trustee in good faith
in reliance upon any paper, order, list, demand, request, consent, affidavit,
notice, opinion, direction, endorsement, assignment, resolution, draft or other
document believed by it to be genuine and to have been signed by the proper
party or parties or for the disposition of monies or Trust Property pursuant to
this Agreement. As to any fact or matter, the manner of ascertainment 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 officer of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
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(f) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Related Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction received from the Certificateholders, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Related Documents, as it shall deem to
be in the best interests of the Certificateholders, and shall have no liability
to any Person for such action or inaction.
(g) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Related Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Property, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Trust is a party, except as expressly provided by the terms of this
Agreement (including as provided in Section 6.2) or in any written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any Related Document against
the Owner Trustee. The Owner Trustee shall have no responsibility for preparing,
monitoring or filing any financing or continuation statements in any public
office at any time or otherwise to perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement or
any Related Document; however, the Owner Trustee will from time to time execute
and deliver such financing or continuation statements as are prepared by the
Servicer and delivered to the Owner Trustee for its execution on behalf of the
Trust for the purpose of perfecting or maintaining the perfection of such a
security interest or lien or effecting such a recording. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense (and not at the
expense of the Trust), promptly take all action as may be necessary to discharge
any liens on any part of the Trust Property
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that are attributable to claims against the Owner Trustee in its individual
capacity that are not related to the ownership or the administration of the
Trust Property.
SECTION 6.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of, the Trust Property except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Related Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take
any action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (ii) 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.
SECTION 6.7. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of
the Trust all documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Trust to prepare, file or deliver
pursuant to the Related Documents. Upon written request, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator its agent and attorney-in-fact to execute all such documents,
reports, filings, instruments, certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant
to the terms of the Administration Agreement, the Owner Trustee may, and is
hereby authorized and empowered to, appoint or consent to the appointment of a
successor Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner
Trustee may, and is hereby authorized and empowered to, with the consent of the
Certificateholders, appoint or consent to the appointment of a Person to perform
substantially the same duties as are assigned to the Administrator in the
Administration Agreement pursuant to an agreement containing substantially the
same provisions as are contained in the Administration Agreement.
(d) The Owner Trustee shall promptly notify the Depositor of
any default by or misconduct of the Administrator under the Administration
Agreement of which the Owner Trustee has received written notice or of which a
Responsible Officer has actual knowledge.
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ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trustee and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Property upon the terms of the Related Documents
and this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Related Document under any circumstances, except (i) for
its own willful misconduct or gross negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3, (iii) for
liabilities arising from the failure of the Owner Trustee to perform obligations
expressly undertaken by it in the last sentence of Section 6.4 hereof, (iv) for
any investments issued by the Owner Trustee or any branch or affiliate thereof
in its commercial capacity or (v) for taxes, fees or other charges on, based on
or measured by, any fees, commissions or compensation received by the Owner
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Owner Trustee;
(b) the Owner Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the instructions of the Instructing Party;
(c) no provision of this Agreement or any Related
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of
its rights or powers hereunder or under any Related Document if the
Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under this Agreement or
any of the Related Documents, including the principal of and interest
on the Notes;
(e) the Owner Trustee shall not be responsible for or
in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust
Property or for or in respect of the validity or sufficiency of the
Related Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur
any liability, duty, or obligation to the Custodian, the Indenture
Trustee, any Noteholder or any Certificateholder, other than as
expressly provided for herein and in the Related Documents;
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(f) the Owner Trustee shall not be liable for the
default or misconduct of the Administrator, the Paying Agent, the
Custodian, the Indenture Trustee or the Servicer under any of the
Related Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under
this Agreement or the Related Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Custodian under the Custodian Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Sale and Servicing Agreement;
and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or
to institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Related Document, at
the request, order or direction of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Related Document shall not
be construed as a duty, and the Owner Trustee shall not be answerable
for other than its gross negligence or willful misconduct in the
performance of any such act.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Related Documents unless the Certificateholders have
previously received such items.
SECTION 7.3. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Depositor and the Certificateholders that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and perform
its obligations under this Agreement and each Related Document to which
the Trust is a party.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement and each
Related Document to which the Trust is a party, and this Agreement and
each Related Document will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement
on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms or
provisions hereof will contravene any Federal or Delaware law,
governmental rule or regulation governing the banking or trust powers
of the Owner Trustee or any judgment or
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order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may
be bound or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Property resulting from actions by or claims
against the Owner Trustee individually which are unrelated to this
Agreement or the Related Documents.
SECTION 7.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Related Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and not contrary to this Agreement or
any Related Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Related Document shall
look only to the Trust Property for payment or satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates, Notes
or Receivables. The recitals contained herein and in the Certificates (other
than the signature and counter-signature of the Owner Trustee on the
Certificates) shall be taken as the statements of the Depositor (other than the
signature or counter-signature of the Owner Trustee on the Notes), and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement, of
any Related Document or of the Certificates (other than the signature and
counter-signature of the Owner Trustee on the Certificates) or the Notes (other
than the
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signature or counter-signature of the Owner Trustee on the Notes), or of any
Receivable or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any security
interest created by any Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority of any security interest created by any
Receivable in any Financed Vehicle or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Property or its
ability to generate the payments to be distributed to Noteholders under the
Indenture or any payments to Certificateholders under this Agreement, including,
without limitation: the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable or any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Seller or the Servicer with
any warranty or representation made under any Related Document or in any Related
Document, or the accuracy of any such warranty or representation or any action
of the Paying Agent, the Indenture Trustee, the Custodian or the Servicer taken
in the name of the Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the Seller,
the Indenture Trustee and the Servicer in banking or other transactions with the
same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between AFL and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by AFL
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder; provided,
however, that the Owner Trustee shall only be entitled to reimbursement for
expenses hereunder to the extent such expenses (i) are fees of outside counsel
engaged by the Owner Trustee in respect of the performance of its obligations
hereunder or (ii) relate to the performance of its obligations pursuant to
Section 5.5 hereof.
SECTION 8.2. Indemnification. AFL shall be liable as primary
obligor for, and shall indemnify the Owner Trustee in its individual capacity
and its successors, assigns, agents and servants, and any co-trustee
(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
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against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the Related Documents, the Trust Property, the
administration of the Trust Property or the action or inaction of the Owner
Trustee hereunder, except only that AFL shall not be liable for or required to
indemnify the Owner Trustee from and against Expenses arising or resulting from
any of the matters described in the third sentence of Section 7.1. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement.
SECTION 8.3. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Related Document, the Owner Trustee agrees in
its individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Trust Property only.
ARTICLE IX
TERMINATION
SECTION 9.1. Termination of the Trust.
(a) The respective obligations and responsibilities
of the Depositor and the Owner Trustee created by this Agreement and
the Trust created by this Agreement shall terminate upon the later of
(i) the maturity or other liquidation of the last Receivable (including
the purchase as of any Accounting Date by the Seller or the Servicer at
its option of the corpus of the Trust as described in Section 9.1 of
the Sale and Servicing Agreement) and the subsequent distribution of
amounts in respect of such Receivables as provided in the Related
Documents, (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Agreement and (iii) the
written consent of 100% of the Noteholders and 100% of the
Certificateholders. In any case, there shall be delivered to the Owner
Trustee, the Indenture Trustee and the Rating Agencies an Opinion of
Counsel that all applicable preference periods under federal, state and
local bankruptcy, insolvency and similar laws have expired with respect
to the payments pursuant to clause (ii); provided, however, that in no
event shall the trust created by this Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants living on the date of this Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇ of the
Commonwealth of Massachusetts; and provided, further, that the rights
to indemnification under Section 8.2 shall survive the termination of
the Trust. The Servicer shall promptly notify the Owner Trustee of any
prospective termination pursuant to this Section 9.1. Except as
provided in Section 9.2, the bankruptcy, liquidation, dissolution,
termination, resignation, expulsion, withdrawal, death or incapacity of
any Owner, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Owner's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust
Property nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
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(b) Except as provided in Section 9.1(a), the
Depositor shall not be entitled to revoke or terminate the Trust.
(c) Within five Business Days of receipt of notice of
termination of the Trust given pursuant to Section 9.1(b) of the Sale
and Servicing Agreement, to the extent such information has been
provided to the Owner Trustee, the Owner Trustee shall mail written
notice to each Certificateholder specifying (i) the Distribution Date
upon which final payment of the Certificates shall be made upon
presentation and surrender of Certificates at the office of the Paying
Agent therein specified, (ii) the amount of any such final payment, and
(iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders. In
the event such notice is given, (i) the Indenture Trustee shall make
deposits into the Certificate Distribution Account in accordance with
Section 4.6 of the Sale and Servicing Agreement, or, (ii) in the case
of an optional purchase of Receivables pursuant to Section 9.1 of the
Sale and Servicing Agreement, the Indenture Trustee shall deposit the
amount specified in Section 9.1 of the Sale and Servicing Agreement.
Upon presentation and surrender of the Certificates, the Paying Agent
shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
(d) In the event that all of the Certificateholders
shall not surrender their Certificates for cancellation within six
months after the date specified in the above-mentioned written notice,
the Owner Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive the final distribution with respect thereto. If within one year
after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and
other assets that remain subject to this Agreement. Any funds which are
payable to Certificateholders remaining in the Trust after 18 months
following the initial notice shall be distributed by the Owner Trustee
or the Paying Agent, as the case may be, to The United Way (but only
upon termination of this Agreement), and the Certificateholders, by
acceptance of their Certificates, hereby waive any rights with respect
to such funds.
(e) Upon the winding up of the Trust and its
termination, the Owner Trustee shall cause the Certificate of Trust to
be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 of the
Business Trust Statute.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation (i) satisfying the provisions
of Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers; (iii) having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities; and (iv) having (or having a parent which has) a rating of at least
Baa3 by Moody's or A-1 by Standard & Poor's or is otherwise acceptable to the
Rating Agencies. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor and the Servicer at
least 30 days before the date specified in such instrument. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor Owner
Trustee meeting the qualifications set forth in Section 10.1 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Depositor or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the immediately preceding
sentence, the Depositor shall promptly appoint a successor Owner Trustee meeting
the qualification requirements of Section 10.1 by written instrument, in
triplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed, and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until all fees and expenses, including
any indemnity payments, due to the outgoing Owner Trustee have been paid and
until acceptance of appointment by the successor Owner Trustee pursuant to
Section 10.3. The
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Depositor shall provide notice of such resignation or removal of the Owner
Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Depositor and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the Depositor and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Depositor shall mail notice of the successor of
such Owner Trustee to the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Depositor shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Depositor. To
the extent required by the Delaware Business Trust Statute, any successor Owner
Trustee appointed hereunder shall promptly file an amendment to the Certificate
of Trust.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
and provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Property or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of
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the Trust Property, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee, shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.1.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations
conferred or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust Property
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other trustee
under this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties,
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rights, remedies and trusts shall vest in and be exercised by the Owner Trustee,
to the extent permitted by law, without the appointment of a new or successor
trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Amendment.
(a) This Agreement may be amended by the Depositor and the
Owner Trustee (on behalf of the Certificateholders) but without the consent of
any of the Noteholders (i) to cure any ambiguity, or (ii) to correct, supplement
or modify any provisions in this Agreement; provided, however, that such
provisions or revisions: (A) only amend items that are administrative in nature,
(B) cannot change the substantive provisions effecting the terms of the Trust,
collecting cash proceeds from assets held, reinvesting proceeds from
collections, otherwise servicing the assets and distribution proceeds to the
Noteholders and (C) cannot be contrary to powers that are allowed for GAAP sales
treatment under existing accounting literature; and that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder; provided, further, that any amendment within
the scope of Section 11.1(b)(i) or (ii) shall be deemed to materially and
adversely affect the interests of the Noteholders or the Certificateholders.
(b) This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee and, if such amendment materially and
adversely affects the interests of Noteholders, the consent of a Note Majority
(which consent of any Holder of a Note given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Holder and on all future Holders of such Note and of any Note
issued upon the transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Note) for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Holders of Notes; provided, however, that, no such amendment shall (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made on any Note or the Class A-1 Interest Rate, the Class A-2 Interest
Rate, the Class A-3 Interest Rate, the Class M Interest Rate or the Class B
Interest Rate, or (ii) reduce the aforesaid percentage required to consent to
any such amendment or any waiver hereunder, without the consent of the Holders
of all Notes then outstanding.
(c) Prior to the execution of any such amendment or consent,
the Depositor shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to the Certificateholders and the Indenture Trustee
unless such parties have previously received such notification.
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(e) It shall not be necessary for the consent of
Certificateholders and Noteholders pursuant to Section 11.1(b) to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders and Noteholders
provided for in this Agreement) shall be subject to such reasonable requirements
as the Owner Trustee may prescribe, including the establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent to the execution and
delivery of such amendment have been satisfied. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. No Recourse. The Certificateholders by accepting
a Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the assets of the Trust only and do not represent
interests in or obligations of the Seller, the Servicer, the Owner Trustee, the
Indenture Trustee, the Administrator or any Affiliate of any of the foregoing
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated in this Agreement, the Certificates or
the Related Documents.
SECTION 11.3. No Petition. To the extent permitted by law, the
Owner Trustee, by entering into this Trust Agreement, and each
Certificateholder, by accepting a Certificate, hereby covenant and agree that
they will not at any time institute against the Seller, the Issuer or the
Certificateholder, or join in or consent to any institution against the Seller,
the Issuer or the Certificateholder, 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 Certificates, this Trust Agreement or any of the
Related Documents.
SECTION 11.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to the principles of conflicts of laws thereof and the obligations,
rights and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
SECTION 11.5. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 11.6. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust,
the fractional undivided beneficial interests in the
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Trust represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and Certificates upon
execution thereof by the Owner Trustee pursuant to Section 3.3 are and shall be
deemed fully paid; provided, however, that this Section 11.6 shall not affect in
any way the terms set forth in Article VIII hereof.
SECTION 11.7. Third-Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. Except as otherwise provided in
this Agreement, no other Person shall have any right or obligation hereunder.
SECTION 11.8. Counterparts. For the purpose of facilitating
its execution and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
SECTION 11.9. Notices. All demands, notices and communications
under this Agreement shall be in writing, personally delivered or mailed by
certified mail-return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Depositor, at the following address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 7 ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
General Counsel, with copies to Arcadia Financial Ltd., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President, and Associates Corporation
of North America, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Senior Vice President - Corporate Finance, (b) in the case of the Owner Trustee,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, (c) in the case of each Rating
Agency, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (for Moody's), and ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset-Backed Surveillance (for
Standard & Poor's), or at such other address as shall be designated by any such
party in a written notice to the other parties.
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IN WITNESS WHEREOF, the Depositor and the Owner Trustee have
caused this Trust Agreement to be duly executed by their respective officers as
of the day and year first above written.
ARCADIA RECEIVABLES FINANCE CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Financial Services Officer