Exhibit 10.105(c)
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FIRST INVESTORS AUTO FUNDING CORPORATION,
as Depositor,
and
BANKERS TRUST (DELAWARE),
as Owner Trustee
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AMENDED AND RESTATED TRUST AGREEMENT
Dated as of January 29, 2002
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TABLE OF CONTENTS
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Article I Definitions..........................................................................................1
SECTION 1.1 DEFINITIONS.................................................................................1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS...............................................................4
Article II Organization of the Trust...........................................................................5
SECTION 2.1 NAME........................................................................................5
SECTION 2.2 OFFICE......................................................................................5
SECTION 2.3 PURPOSES AND POWERS.........................................................................5
SECTION 2.4 APPOINTMENT OF OWNER TRUSTEE................................................................6
SECTION 2.5 ORGANIZATIONAL MATTERS......................................................................6
SECTION 2.6 DECLARATION OF TRUST........................................................................6
SECTION 2.7 TITLE OF TRUST PROPERTY.....................................................................7
SECTION 2.8 SITUS OF TRUST..............................................................................7
SECTION 2.9 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.............................................7
SECTION 2.10 FEDERAL INCOME TAX MATTERS..................................................................8
Article III Trust Certificates and Transfer of Interests.......................................................9
SECTION 3.1 OWNERSHIP...................................................................................9
SECTION 3.2 THE DEPOSITOR'S CERTIFICATE.................................................................9
SECTION 3.3 AUTHENTICATION OF THE DEPOSITOR'S CERTIFICATE...............................................9
SECTION 3.4 REGISTRATION OF THE DEPOSITOR'S CERTIFICATE.................................................9
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN DEPOSITOR'S CERTIFICATE...............................10
SECTION 3.6 APPOINTMENT OF PAYING AGENT................................................................11
Article IV Actions by Owner Trustee...........................................................................11
SECTION 4.1 PRIOR NOTICE WITH RESPECT TO CERTAIN MATTERS...............................................11
SECTION 4.2 ACTION BY DEPOSITOR WITH RESPECT TO CERTAIN MATTERS........................................13
SECTION 4.3 ACTION BY OWNER TRUSTEE WITH RESPECT TO BANKRUPTCY.........................................13
SECTION 4.4 RESTRICTIONS ON INSURER'S POWER............................................................14
Article V Application of Trust Funds; Certain Duties..........................................................14
SECTION 5.1 ESTABLISHMENT OF DEPOSITOR ACCOUNT.........................................................14
SECTION 5.2 APPLICATION OF TRUST FUNDS.................................................................14
SECTION 5.3 METHOD OF PAYMENT..........................................................................15
SECTION 5.4 NO SEGREGATION OF MONIES; NO INTEREST......................................................15
Article VI Authority and Duties of Owner Trustee..............................................................15
SECTION 6.1 GENERAL AUTHORITY..........................................................................15
SECTION 6.2 GENERAL DUTIES.............................................................................16
SECTION 6.3 ACTION UPON INSTRUCTION....................................................................16
SECTION 6.4 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN INSTRUCTIONS.........................17
SECTION 6.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.................................17
SECTION 6.6 RESTRICTIONS...............................................................................18
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Article VII Regarding the Owner Trustee.......................................................................18
SECTION 7.1 ACCEPTANCE OF TRUSTS AND DUTIES............................................................18
SECTION 7.2 FURNISHING OF DOCUMENTS....................................................................20
SECTION 7.3 REPRESENTATIONS AND WARRANTIES.............................................................20
SECTION 7.4 RELIANCE; ADVICE OF COUNSEL................................................................20
SECTION 7.5 NOT ACTING IN INDIVIDUAL CAPACITY..........................................................21
SECTION 7.6 OWNER TRUSTEE NOT LIABLE FOR CONTRACTS.....................................................21
SECTION 7.7 OWNER TRUSTEE MAY OWN NOTES................................................................22
Article VIII Compensation of Owner Trustee....................................................................22
SECTION 8.1 OWNER TRUSTEE'S FEES AND EXPENSES..........................................................22
SECTION 8.2 INDEMNIFICATION............................................................................22
SECTION 8.3 PAYMENTS TO THE OWNER TRUSTEE..............................................................23
Article IX Termination........................................................................................23
SECTION 9.1 TERMINATION OF TRUST AGREEMENT.............................................................23
SECTION 9.2 NOTIFICATION REGARDING BANKRUPTCY OF THE DEPOSITOR.........................................24
SECTION 9.3 PREPAYMENT.................................................................................24
Article X Successor Owner Trustees and Additional Owner Trustees..............................................25
SECTION 10.1 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.................................................25
SECTION 10.2 RESIGNATION OR REMOVAL OF OWNER TRUSTEE....................................................26
SECTION 10.3 SUCCESSOR OWNER TRUSTEE....................................................................26
SECTION 10.4 MERGER OR CONSOLIDATION OF OWNER TRUSTEE...................................................27
SECTION 10.5 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..............................................27
Article XI Miscellaneous......................................................................................29
SECTION 11.1 SUPPLEMENTS AND AMENDMENTS.................................................................29
SECTION 11.2 NO LEGAL TITLE TO OWNER TRUST ESTATE IN THE DEPOSITOR......................................30
SECTION 11.3 LIMITATION ON RIGHTS OF OTHERS.............................................................31
SECTION 11.4 NOTICES....................................................................................31
SECTION 11.5 SEVERABILITY...............................................................................31
SECTION 11.6 SEPARATE COUNTERPARTS......................................................................32
SECTION 11.7 SUCCESSORS AND ASSIGNS.....................................................................32
SECTION 11.8 COVENANTS OF THE DEPOSITOR.................................................................32
SECTION 11.9 NO PETITION................................................................................32
SECTION 11.10 HEADINGS..................................................................................32
SECTION 11.11 GOVERNING LAW.............................................................................32
SECTION 11.12 AMENDMENT OF TRUST AGREEMENT..............................................................33
SECTION 11.13 OWNER TRUSTEE PRESUMPTION.................................................................33
EXHIBITS
Exhibit A Form of Depositor's Certificate
Exhibit B Certificate of Trust
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AMENDED AND RESTATED
TRUST AGREEMENT, dated as of January 29, 2002 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "AGREEMENT"), between FIRST INVESTORS AUTO FUNDING CORPORATION, a
Delaware
corporation, as depositor (the "DEPOSITOR"), and BANKERS TRUST (
DELAWARE), a
Delaware banking corporation, (in its capacity as owner trustee and not in its
individual capacity, the "OWNER TRUSTEE").
WHEREAS, the Depositor and the Owner Trustee have entered into a
Trust
Agreement, dated as of January 11, 2002 (the "ORIGINAL
TRUST AGREEMENT"); and
WHEREAS, the Depositor and Owner Trustee desire to amend and restate the
Original
Trust Agreement in its entirety as provided herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and between
the Depositor and the Owner Trustee that the Original
Trust Agreement be amended
and restated and replaced in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
Except as otherwise specified herein or as the context may otherwise
require, the following terms shall have the respective meanings set forth below
for all purposes of this Agreement.
ADMINISTRATOR: First Investors Financial Services, Inc., or any successor
administrator.
AFFILIATE: With respect to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common control with such
Person. For purposes of this definition, "control" when used with respect to any
Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
APPLICABLE TAX STATE: As defined in the Sale and Allocation Agreement.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a day on which banking
institutions or trust companies in New York, New York, Wilmington,
Delaware,
Houston, Texas or Atlanta, Georgia are authorized or obligated by law, executive
order or governmental decree to remain closed.
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, supplemented or otherwise
modified and in effect from time to time.
CERTIFICATE OF TRUST: The Certificate of Trust attached hereto as EXHIBIT B
filed with the Secretary of the State of
Delaware on January 11, 2002 for the
Trust pursuant to Section 3810(a) of the Business Trust Statute.
CERTIFICATE REGISTER: As defined in SECTION 3.4.
CERTIFICATE REGISTRAR: As defined in SECTION 3.4.
CODE: The Internal Revenue Code of 1986, as amended from time to time, and the
Treasury Regulations promulgated thereunder.
COLLECTION ACCOUNT: As defined in the Sale and Allocation Agreement.
CONTRACTS: As defined in the Sale and Allocation Agreement.
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 date of execution of this Agreement is located at, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust, or
at such other address as the Owner Trustee may designate from time to time by
notice to the Depositor, or the principal corporate trust office of any
successor Owner Trustee at the address designated by such successor Owner
Trustee by notice to the Depositor.
CUTOFF DATE: As defined in the Sale and Allocation Agreement.
DEPOSITOR: First Investors Auto Funding Corporation, a
Delaware corporation, in
its capacity as depositor under this Agreement, and its successors.
DEPOSITOR ACCOUNT: As defined in SECTION 5.1.
DEPOSITOR'S CERTIFICATE: A physical certificate evidencing the beneficial
interest of the holder thereof in the Trust as specified therein, substantially
in the form of EXHIBIT A attached hereto.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXPENSES: As defined in SECTION 8.2 and shall include amounts in connection with
all liabilities, losses, damages, taxes, claims, actions and suits referred to
in such section.
FINAL NOTE PAYMENT DATE: December 15, 2008.
INDEMNIFIED PARTIES: As defined in SECTION 8.2.
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INDENTURE: The Indenture, dated as of January 1, 2002, between the Trust, the
Seller and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, a national banking
association, as indenture trustee, as amended, supplemented or otherwise
modified and in effect from time to time.
INDEPENDENT: As defined in the Indenture.
INITIAL POOL BALANCE: $135,643,108.96.
INSURER: MBIA Insurance Corporation, a New York stock insurance company, and its
successors.
NOTE PAYMENT ACCOUNTS: As defined in the Sale and Allocation Agreement.
NOTE RATE: As defined in the Sale and Allocation Agreement.
NOTES: As defined in the Indenture.
OWNER TRUST ESTATE: All right, title and interest of the Trust in, to and under
the property and rights assigned to the Trust pursuant to Article II of the Sale
and Allocation Agreement and all monies deposited from time to time in the
Collection Account, the Note Payment Accounts, the Prefunding Account and the
Reserve Account.
OWNER TRUSTEE: Bankers Trust (
Delaware), a
Delaware banking corporation, not in
its individual capacity but solely as Owner Trustee under this Agreement, and
any successor Owner Trustee under this Agreement.
PAYING AGENT: The Owner Trustee, Bankers Trust Company, or any other Person
appointed as Paying Agent in accordance with SECTION 3.6.
PERSON: As defined in the Sale and Allocation Agreement.
POOL BALANCE: As defined in the Sale and Allocation Agreement.
PREFUNDING ACCOUNT: As defined in the Sale and Allocation Agreement.
PREPAYMENT DATE: The Payment Date specified by the Servicer pursuant to SECTION
9.3(a).
RECORD DATE: With respect to any Payment Date or Prepayment Date, the close of
business on the Business Day immediately preceding such Payment Date or
Prepayment Date.
RESERVE ACCOUNT: As defined in the Sale and Allocation Agreement.
RESPONSIBLE OFFICER: As defined in the Indenture.
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SALE AND ALLOCATION AGREEMENT: The Sale and Allocation Agreement, dated as of
January 1, 2002, by and among the Depositor, the Indenture Trustee, the Trust,
the Seller and the Servicer, as amended, supplemented or otherwise modified and
in effect from time to time.
SECRETARY OF STATE: The Secretary of State of the State of Delaware.
SECURITIES ACT: The Securities Act of 1933, as amended.
TOTAL SERVICING FEE: As defined in the Sale and Allocation Agreement.
TRANSACTION DOCUMENTS: As defined in the Indenture.
TRANSFER: To sell, transfer, assign, participate, pledge or otherwise dispose
of.
TREASURY REGULATIONS: Regulations, including proposed or temporary regulations,
promulgated under the Code. All references herein to specific provisions of
proposed or temporary Treasury Regulations shall include analogous provisions of
final Treasury Regulations or other successor Treasury Regulations.
TRUST: The Delaware business trust established by this Agreement.
TRUST ACCOUNTS: As defined in the Indenture.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein and not otherwise defined herein have the
meanings assigned to them in the Sale and Allocation Agreement or, if not
defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other documents
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings assigned
to them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. Article, Section and Exhibit
references contained in this Agreement
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are references to Articles, Sections and Exhibits in or to this Agreement unless
otherwise specified. The term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1 NAME.
The name of the Trust shall be "First Investors Auto Owner Trust 2002-A,"
in which name the Trust and the Owner Trustee shall have power and authority and
each is hereby authorized and empowered to conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust 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 the State of 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 power and authority
and is hereby authorized and empowered, without the need for further action on
the part of the Trust, and the Owner Trustee shall have power and authority and
is hereby authorized and empowered, in the name and on behalf of the Trust, to
do or cause to be done all acts and things necessary, appropriate or convenient
to cause the Trust, to engage solely in the following activities:
(a) to execute, issue and deliver the Notes pursuant to the Indenture, to
execute, authenticate, issue and deliver the Depositor's Certificate pursuant to
this Agreement, and to sell the Notes and issue the Depositor's Certificate to
the Depositor;
(b) to use the proceeds of the sale of the Notes to fund the Reserve
Account and the Prefunding 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 Allocation Agreement in consideration for the purchase
of Contracts;
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(c) to pay interest on (with respect to the Class A Notes) and principal of
the Notes and amounts distributable with respect to the Depositor's Certificate;
(d) to assign, grant, transfer, pledge, mortgage and convey the Collateral
to the Indenture Trustee pursuant to the Indenture;
(e) to enter into, execute, deliver and perform its obligations under the
Transaction Documents to which it is to be a party;
(f) subject to compliance with the Transaction Documents, to engage in such
other activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Noteholders and the
Depositor; and
(g) 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.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Transaction 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 authority
set forth herein and in the Business Trust Statute.
SECTION 2.5 ORGANIZATIONAL MATTERS.
The Depositor shall pay from amounts payable to it pursuant to
Section 3.5(d)(xii) of the Sale and Allocation Agreement, the organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee, in its individual capacity, for
any such expenses paid by the Owner Trustee, in its individual capacity. The net
proceeds from the sale of the Notes shall be used to purchase Contracts and
related property from the Seller in accordance with Section 2.1 of the Sale and
Allocation Agreement and to fund the Reserve Account in the amounts required by
the Sale and Allocation Agreement and to fund the Prefunding Account.
SECTION 2.6 DECLARATION OF TRUST.
The Owner Trustee hereby declares that it will hold the Owner Trust Estate
in trust upon and subject to the conditions set forth herein for the use and
benefit of the Depositor, subject to the obligations of the Trust under the
Transaction Documents. It is the intention of the parties hereto that (a) the
Trust constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust and
(b) solely for income and franchise tax purposes, the Trust shall be treated as
a trust. Unless otherwise required by the
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appropriate tax authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a trust for such tax purposes. Effective as of
the date hereof, the Owner Trustee shall have all rights, powers and authority
set forth herein and in the Business Trust Statute with respect to accomplishing
the purposes of the Trust. The Owner Trustee shall have power and authority and
is hereby authorized and empowered to execute and file any certificate to be
filed under the Business Trust Statute.
SECTION 2.7 TITLE OF TRUST PROPERTY.
Legal title to the entirety of the Owner Trust Estate shall be vested at
all times in the Trust as a separate legal entity, except where applicable law
in any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case
may be.
SECTION 2.8 SITUS OF TRUST.
The Trust shall be located and administered in the State of Delaware. All
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the State of Delaware or the State of New York. The Trust shall not
have any employees in any state other than the State of Delaware; PROVIDED,
HOWEVER, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments will be
received by the Trust only in the State of Delaware or the State of New York,
and payments will be made by the Trust only from the State of Delaware or the
State of New York. The only office of the Trust will be at the Corporate Trust
Office in the State of Delaware.
SECTION 2.9 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants to the Owner Trustee (as such
and in its individual capacity) that:
(a) the Depositor is duly organized and validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted;
(b) the Depositor is duly qualified to do business as a foreign corporation
in good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualifications;
(c) the Depositor has the power and authority to execute and deliver this
Agreement and each other Transaction Document to which it is a party and to
carry out their respective terms, and the Depositor has full power and authority
to sell and assign the property to be sold and assigned to, and deposited with,
the Trust; the Depositor has duly authorized such sale and
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assignment and deposit to the Trust by all necessary action and the execution,
delivery and performance of this Agreement and each other Transaction Document
to which it is a party has been duly authorized by the Depositor by all
necessary action;
(d) the consummation by the Depositor of the transactions contemplated by
this Agreement and each other Transaction Document to which it is a party and
the fulfillment of the terms hereof and thereof do not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the certificate of
incorporation or bylaws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound do not
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Transaction Documents) and do not violate any law
or, to the knowledge of the Depositor, any order, rule or regulation applicable
to the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties;
(e) there are no proceedings or investigations pending or, to the knowledge
of the Depositor, threatened before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Depositor or its properties (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Transaction Documents or the Notes, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other Transaction
Documents, (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement or any other Transaction
Document to which the Depositor is a party or (iv) which might adversely affect
the federal income tax attributes, or Applicable Tax State franchise or income
tax attributes, of the Notes; and
(f) the representations and warranties of the Seller in Section 2.2 of the
Sale and Allocation Agreement are true and correct.
SECTION 2.10 FEDERAL INCOME TAX MATTERS.
It is the intent of the Depositor and the Servicer that, for purposes of
federal income, state and local income and franchise tax and any other income
taxes, the Trust will be treated as a trust under Treas. Reg. Section
301.7701-4. The Depositor, by acceptance of its interest in the Depositor's
Certificate, agrees to such treatment and agrees to take no action inconsistent
with such treatment and except as authorized by the succeeding sentence shall
not sell or suffer to be transferred the ownership of the Class B Notes unless
the Depositor shall first have either received an opinion of counsel to the
effect that such sale or transfer would not cause the Trust no longer to be
treated as a trust under such regulations or provided the Trust indemnification
satisfactory to the Owner Trustee with respect to any such tax or other expense
that might be imposed on or incurred by the Trust as a result of such action.
Notwithstanding the foregoing, the Depositor (and any transferee thereof) may
sell or transfer or cause the Class B Notes to be sold or transferred
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provided that following such transfer all of the outstanding Class B Notes are
owned by not more than four (4) Persons.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 OWNERSHIP.
The Depositor shall be the sole beneficial owner of the Trust.
SECTION 3.2 THE DEPOSITOR'S CERTIFICATE.
The Depositor's Certificate shall be issued to the Depositor as a
registered, definitive, physical certificate, substantially in the form set
forth in EXHIBIT A attached hereto. The Depositor's Certificate shall not be
Transferred by the Depositor to any other Person.
The Depositor's Certificate may be in printed or typewritten form and shall
be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. If the Depositor's Certificate bears
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, it shall be validly issued and entitled to the benefits of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of the
Depositor's Certificate or did not hold such offices at the date of
authentication and delivery of the Depositor's Certificate.
SECTION 3.3 AUTHENTICATION OF THE DEPOSITOR'S CERTIFICATE.
As of the date hereof, the Owner Trustee shall cause the Depositor's
Certificate to be executed on behalf of the Trust, authenticated, issued and
delivered upon written order of the Depositor signed by its manager, its
president, any vice president, its secretary or its treasurer, without further
action by the Depositor. Thereupon, such Depositor's Certificate shall be duly
authorized, validly issued and entitled to the benefits of this Agreement. The
Depositor's Certificate shall not entitle its holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such
Depositor's Certificate a certificate of authentication substantially in the
form set forth in EXHIBIT A executed by the Owner Trustee or Bankers Trust
Company, as the Owner Trustee's authenticating agent, by manual signature, which
authentication shall constitute conclusive evidence that the Depositor's
Certificate is entitled to the benefits of this Agreement and has been duly
authenticated, duly authorized, validly issued and delivered hereunder. The
Depositor's Certificate shall be dated the date of its authentication.
SECTION 3.4 REGISTRATION OF THE DEPOSITOR'S CERTIFICATE.
The Certificate Registrar (defined below) shall cause to be kept, at its
Corporate Trust Office (as defined in the Sale and Allocation Agreement) a
register (the "CERTIFICATE REGISTER") in
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which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of the Depositor's
Certificate. The Indenture Trustee initially shall be the registrar (the
"CERTIFICATE REGISTRAR") for the purpose of registering the Depositor's
Certificate as herein provided. The Certificate Registrar shall, promptly upon
request, furnish to the Owner Trustee information regarding the Certificate
Register, including a copy thereof. Upon any resignation of any Certificate
Registrar, the Owner Trustee shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Certificate Registrar.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN DEPOSITOR'S CERTIFICATE.
(a) If (i) a mutilated Depositor's Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of the Depositor's Certificate,
and (ii) there is delivered to the Certificate Registrar and Owner Trustee (as
such and in its individual capacity) such security or indemnity as may be
required by them to hold each of the Trust, the Certificate Registrar and the
Owner Trustee (as such and in its individual capacity) harmless, then, in the
absence of notice to the Trust, the Certificate Registrar or the Owner Trustee
that the Depositor's Certificate has been acquired by a protected purchaser, the
Owner Trustee shall execute and the Owner Trustee or Bankers Trust Company, as
the Owner Trustee's authenticating agent, shall authenticate and deliver, in
exchange for, or in lieu of, such mutilated, destroyed, lost or stolen
Depositor's Certificate, a replacement Depositor's Certificate of like tenor and
denomination. If, after the delivery of such replacement Depositor's
Certificate, a protected purchaser of the original Depositor's Certificate in
lieu of which such replacement Depositor's Certificate was issued presents for
payment such original Depositor's Certificate, the Trust shall be entitled to
recover such replacement Depositor's Certificate (or such payment) from the
Person to whom such replacement Depositor's Certificate was delivered or any
Person taking such replacement Depositor's Certificate from such Person to whom
such replacement Depositor's Certificate was delivered or any assignee of such
Person, except a protected purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Trust or the Owner Trustee (as such or in its
individual capacity) in connection therewith.
(b) Upon the issuance of any replacement Depositor's Certificate under this
SECTION 3.5, the Trust may require the payment by the Depositor of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with such issuance and any other reasonable expenses (including the
fees and expenses of the Owner Trustee (as such and in its individual capacity))
related thereto.
(c) Any replacement Depositor's Certificate issued pursuant to this
SECTION 3.5 in replacement of the mutilated, destroyed, lost or stolen
Depositor's Certificate shall constitute an original additional contractual
obligation of the Trust, whether or not the mutilated, destroyed, lost or stolen
Depositor's Certificate shall be at any time enforceable by anyone, and shall be
duly authorized, validly issued and entitled to all the benefits of this
Agreement.
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(d) The provisions of this SECTION 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of any mutilated, destroyed, lost or stolen Depositor's Certificate.
SECTION 3.6 APPOINTMENT OF PAYING AGENT.
The Paying Agent shall initially be Bankers Trust Company, and any
co-paying agent chosen by the Owner Trustee. Bankers Trust Company shall be
permitted to resign as Paying Agent upon thirty (30) days' written notice to the
Owner Trustee. In the event that Bankers Trust Company shall no longer be the
Paying Agent, the Owner Trustee, with the consent of the Insurer, shall appoint
a successor to act as Paying Agent (which shall be a bank or trust company). 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 rights, benefits, protections, privileges
and immunities of the Owner Trustee (as such or in its individual capacity)
under this Agreement 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 PRIOR NOTICE WITH RESPECT TO CERTAIN MATTERS.
With respect to the following matters, the Trust shall not take action
unless (a) at least thirty (30) days before the taking of such action, the Owner
Trustee shall have notified the Insurer and the Rating Agencies in writing of
the proposed action and (b) the Insurer, if an Insurer Default shall not have
occurred and be continuing, shall have previously consented in writing thereto
and the Depositor shall not have (i) notified the Owner Trustee in writing prior
to the 30th day after such notice is given that it has withheld consent or (ii)
provided alternative written direction prior to the 30th day after such notice
is given:
(A) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought by the Servicer in connection with the
collection of the Contracts) and the settlement of any action, claim
or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection by the Servicer of
the Contracts);
(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);
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(C) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(D) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent for the Notes or Indenture Trustee or pursuant
to this Agreement of a successor Certificate Registrar, or the consent
to the assignment by the Note Registrar, Paying Agent for the Notes or
Indenture Trustee or Certificate Registrar of its obligations under
the Indenture or this Agreement, as applicable;
(E) the consent to the calling or waiver of any default of any
Transaction Document;
(F) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Transaction
Document, unless permitted in the Transaction Documents;
(G) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the Transaction
Documents;
(H) possess Trust assets, or assign the Trust's right to
property, for other than a Trust purpose;
(I) cause the Trust to lend any funds to any entity, unless
permitted in this Agreement or the Transaction Documents;
(J) except as provided in ARTICLE IX hereof, dissolve, terminate
or liquidate the Trust in whole or in part;
(K) merge or consolidate the Trust with or into any other entity,
or convey or transfer all or substantially all of the Trust's assets
to any other entity;
(L) do any act that conflicts with any other Transaction
Document;
(M) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in SECTION 2.3 hereof;
(N) confess a judgment against the Trust; or
(O) change the Trust's purpose and powers from those set forth in
this Agreement.
In addition, the Trust shall not commingle its assets with those of any
other entity. The Trust shall maintain its financial and accounting books and
records separately from those of any other entity. Except as expressly set forth
herein, the Trust shall not pay any indebtedness, operating expenses or
liabilities of any other entity. The Trust shall maintain appropriate
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minutes or other records of all appropriate actions and shall maintain its
offices separate from the offices of the Depositor and the Servicer.
SECTION 4.2 ACTION BY DEPOSITOR WITH RESPECT TO CERTAIN MATTERS.
The Owner Trustee may not, except upon the occurrence of an Event of
Servicing Termination subsequent to the payment in full of the Notes and in
accordance with the written direction of the Insurer, if an Insurer Default
shall not have occurred and be continuing, or the Depositor (with the consent of
the Insurer, provided that an Insurer Default shall not have occurred and be
continuing) (a) remove the Servicer pursuant to 5.2 of the Servicing Agreement,
(b) appoint a successor Servicer pursuant to 5.2 of the Servicing Agreement,
(c) remove the Administrator pursuant to Section 9 of the Administration
Agreement, (d) appoint a successor Administrator pursuant to Section 9 of the
Administration Agreement or (e) sell the Contracts after the termination of the
Indenture, except as expressly provided in the Transaction Documents.
SECTION 4.3 ACTION BY OWNER TRUSTEE WITH RESPECT TO BANKRUPTCY.
(a) The Trust shall not, without the prior written consent of the Owner
Trustee, (i) institute any proceedings to adjudicate the Trust as bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency
proceedings against the Trust, (iii) file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy with respect to the Trust, (iv) 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, (v) make any
assignment for the benefit of the Trust's creditors, (vi) admit in writing its
inability to pay its debts generally as they become due, or (vii) take any
action in furtherance of any of the foregoing (any of the above foregoing
actions, a "BANKRUPTCY ACTION"). In considering whether to give or withhold
written consent to any Bankruptcy Action by the Trust, the Owner Trustee, with
the consent of the Depositor (hereby given, which consent the Depositor believes
to be in the Trust's and its best interests), shall consider the interest of the
Noteholders and the Insurer in addition to the interests of the Trust and
whether the Trust is insolvent. The Owner Trustee shall have no duty to give
such written consent to Bankruptcy Action by the Trust if the Owner Trustee
shall not have been furnished (at the expense of the Person that requested that
such letter be furnished to the Owner Trustee) a letter from an independent
accounting firm of national reputation stating that in the opinion of such firm
the Trust is then insolvent.
The Owner Trustee (as such and in its individual capacity) shall not be
personally liable to any Person on account of the Owner Trustee's good faith
reliance on the provisions of this Section or in connection with the Owner
Trustee's giving prior written consent to Bankruptcy Action by the Trust in
accordance herewith, or withholding such consent, in good faith, and neither the
Trust nor the Depositor shall have any claim for breach of fiduciary duty or
otherwise against the Owner Trustee (as such and in its individual capacity) for
giving or withholding its consent to any such Bankruptcy Action.
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(b) The parties hereto stipulate and agree that the Depositor has no power
to commence any Bankruptcy Action on the part of the Trust or to direct the
Owner Trustee to take any Bankruptcy Action on the part of the Trust. To the
extent permitted by applicable law, the consent of the Insurer (provided that no
Insurer Default has occurred and is continuing) and the Indenture Trustee shall
be obtained prior to taking any Bankruptcy Action by the Trust.
(c) The provisions of this Section do not constitute an acknowledgment or
admission by the Trust, the Owner Trustee, or any creditor of the Trust that the
Trust is eligible to be a debtor under the United States Bankruptcy Code, 11
U.S.C. Section 101 et. Seq., as amended.
SECTION 4.4 RESTRICTIONS ON INSURER'S POWER.
Neither the Insurer nor the Depositor shall direct the Owner Trustee to
take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the other Transaction Documents or would be contrary to
SECTION 2.3, nor shall the Owner Trustee be obligated to follow any such
direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 ESTABLISHMENT OF DEPOSITOR ACCOUNT.
Pursuant to Section 3.1(c) of the Sale and Allocation Agreement, there
shall be maintained in the name of the Trust at an Eligible Institution a
segregated trust account designated as the Depositor Account (the "DEPOSITOR
ACCOUNT"). The Depositor Account shall be held in trust for the benefit of the
Depositor. Except as expressly provided in Section 3.1(c) of the Sale and
Allocation Agreement, the Depositor Account shall be under the sole dominion and
control of the Trust. All monies deposited from time to time in the Depositor
Account pursuant to the Sale and Allocation Agreement or the Indenture shall be
applied as provided in this Agreement, the Sale and Allocation Agreement and the
Indenture.
SECTION 5.2 APPLICATION OF TRUST FUNDS.
(a) On each Payment Date the Paying Agent shall, after payment of all
liabilities of the Trust, including any amounts owing to the Owner Trustee and
the Insurer under the Transaction Documents, distribute all amounts on deposit
in the Depositor Account to the Depositor.
In addition, the Paying Agent shall, after payment of all liabilities of
the Trust, including any amounts owing to the Owner Trustee and the Insurer
under the Transaction Documents, promptly remit to the Depositor any amounts
received from the Indenture Trustee for the benefit of the Depositor in respect
of excess amounts from the Reserve Account pursuant to Section 3.6(d) of the
Sale and Allocation Agreement.
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(b) In the event that any withholding tax is imposed on any payment (or
allocations of income) by the Trust to the Depositor, such tax shall reduce the
amount otherwise distributable to the Depositor in accordance with this SECTION
5.2. The Owner Trustee and each Paying Agent is hereby authorized and directed
to retain (as directed in writing by the Administrator) from amounts otherwise
distributable to the Depositor sufficient funds for the payment of any such
withholding tax that is legally owed by the Trust (but such authorization shall
not prevent the Trust from contesting any such tax in appropriate proceedings,
and withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to the
Depositor shall be treated as cash distributed to the Depositor at the time it
is withheld by the Trust and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution, the Owner Trustee or the Paying Agent may, in its sole discretion,
withhold such amounts in accordance with this SECTION 5.2. If the Depositor
wishes to apply for a refund of any such withholding tax, the Owner Trustee
shall reasonably cooperate with the Depositor in making such claim so long as
the Depositor agrees to reimburse the Owner Trustee, as such and in its
individual capacity, for any expenses incurred.
SECTION 5.3 METHOD OF PAYMENT.
Subject to SECTION 9.1(c), distributions required to be made to the
Depositor on any Payment Date shall be made to the Depositor by wire transfer,
in immediately available funds, to the account (reasonably identified to the
Paying Agent in writing) of the Depositor at a bank or other entity having
appropriate facilities therefor. Notwithstanding the foregoing, the final
distribution in respect of the Depositor's Certificate (whether on the Final
Note Payment Date or otherwise) will be payable only upon presentation and
surrender of the Depositor's Certificate at the office of the Paying Agent.
SECTION 5.4 NO SEGREGATION OF MONIES; NO INTEREST.
Subject to SECTIONS 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law, the Indenture or the Sale and Allocation Agreement and may be deposited
under such general conditions as may be prescribed by law, and the Owner Trustee
shall not be personally liable for any interest thereon.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 GENERAL AUTHORITY.
The Owner Trustee shall have power and authority and is hereby authorized
and empowered in the name and on behalf of the Trust to execute and deliver the
Transaction 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 Transaction
Documents to which the Trust is to be a party and any amendment or other
agreement, in each case in such form as the Depositor shall
15
approve, as evidenced conclusively by the Owner Trustee's execution thereof and
the Depositor's execution of this Agreement, and to direct the Indenture Trustee
to authenticate and deliver Class A Notes and Class B Notes in the aggregate
principal amount of $159,036,000 and $4,819,000, respectively. In addition to
the foregoing, the Owner Trustee shall have power and authority and is hereby
authorized and empowered in the name and on behalf of the Trust to take all
actions required of or permitted to be taken by the Trust pursuant to the
Transaction Documents. The Owner Trustee shall have power and authority and is
hereby authorized and empowered in the name and on behalf of the Trust from time
to time to take such action on behalf of the Trust as is permitted by the
Transaction Documents and which the Servicer or the Administrator recommends
with respect to the Transaction Documents.
SECTION 6.2 GENERAL DUTIES.
It shall be the duty of the Owner Trustee to perform (or cause to be
performed) all of the duties expressly required to be performed by the Owner
Trustee under this Agreement and the other Transaction Documents to which the
Trust is a party. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Transaction Documents to the extent the Administrator or any other Person is
required in the Administration Agreement or any other Transaction Document to
perform any act or to discharge such duty of the Owner Trustee or the Trust
hereunder or under any other Transaction Document, and the Owner Trustee shall
not be held personally liable for the default or failure of the Administrator or
any other Person to carry out its obligations under the Administration Agreement
or any other Transaction Document.
SECTION 6.3 ACTION UPON INSTRUCTION.
(a) Subject to ARTICLE IV, and in accordance with the terms of the
Transaction Documents, the Depositor may, by written instruction, direct the
Owner Trustee in the management of the Trust.
(b) Notwithstanding any other provision herein or in any other Transaction
Document, the Owner Trustee shall not be required to take any action hereunder
or under any Transaction Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in personal liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any other Transaction Document or is otherwise contrary
to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the Insurer (so
long as no Insurer Default has occurred and is continuing) and the Depositor
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Insurer or the Depositor received, the Owner Trustee shall
not be personally liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate written instruction within
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ten (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 as it shall deem to be in the best interests of the Depositor
and shall have no personal liability to any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other Transaction 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 or
permitted 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 Insurer (so long as no Insurer Default has occurred and is continuing)
and the Depositor 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 personally liable, on
account of such action or inaction, to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten (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 as it shall deem to be in
the best interests of the Depositor and shall have no personal 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 Owner Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, this Agreement or any document contemplated
hereby, except the duties expressly required to be performed by the Owner
Trustee by the terms of this Agreement or in any document or written instruction
received by the Owner Trustee pursuant to SECTION 6.3, and no implied duties or
obligations shall be read into this Agreement or any other Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or otherwise to perfect or maintain the perfection of any security interest or
lien or to prepare or file any Securities and Exchange Commission filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee, in its individual capacity, shall, however, at its own cost and
expense, promptly take all action as may be necessary to discharge any lien
(other than the lien of the Indenture) on any part of the Owner Trust Estate
that results from actions by, or claims against, the Owner Trustee, in its
individual capacity, that are not related to the ownership or the administration
of the Owner Trust Estate or the Trust or the Owner Trustee's serving as trustee
of the Trust.
SECTION 6.5 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Owner Trust Estate except (a) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (b) in accordance with
17
the other Transaction Documents to which the Trust or the Owner Trust is a party
and (c) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to SECTION 6.3.
SECTION 6.6 RESTRICTIONS.
The Owner Trustee shall not take any action (a) that is inconsistent with
the purposes of the Trust set forth in SECTION 2.3 or (b) that, to the actual
knowledge of the Owner Trustee, would (i) adversely affect the treatment of the
Class A Notes as indebtedness for federal income or Delaware income or franchise
tax purposes, (ii) be deemed to cause a taxable exchange of the Class A Notes
for federal income or Delaware income or franchise tax purposes or (iii) cause
the Trust or any portion thereof to be taxable as an association or publicly
traded partnership taxable as a corporation for federal income or Delaware
income or franchise tax purposes.
The Depositor shall not direct the Owner Trustee to take action that would
violate the provisions of this SECTION 6.6.
ARTICLE VII
REGARDING THE OWNER TRUSTEE
SECTION 7.1 ACCEPTANCE OF TRUSTS AND DUTIES.
The Owner Trustee accepts the trusts hereby created and agrees to perform
the duties expressly required to be performed by the Owner Trustee hereunder.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement and
the other Transaction Documents to which the Trust is a party. The Owner Trustee
shall not be personally answerable or accountable hereunder or under any other
Transaction Document under any circumstances, except for liability to the Trust
and the Depositor (a) for its own willful misconduct, bad faith or gross
negligence or (b) in the case of the breach of any representation or warranty
contained in SECTION 7.3 expressly made by the Owner Trustee in its individual
capacity. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(i) the Owner Trustee shall not be personally liable for any error
of judgment made in good faith by the Owner Trustee unless it is proved
that the Owner Trustee was grossly negligent in ascertaining the pertinent
facts;
(ii) the Owner Trustee shall not be personally liable with respect
to any action taken or omitted to be taken in good faith by it in
accordance with the provisions of this Agreement at the instructions of the
Indenture Trustee, the Insurer, the Depositor, the Administrator or the
Servicer or other instructions given in accordance with this Agreement or
any other Transaction Document;
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(iii) no provision of this Agreement or any other Transaction
Document shall require the Owner Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder or
under any other Transaction Document if the Owner Trustee shall have
reasonable grounds to believe that repayment of such funds or indemnity
satisfactory to it in its individual capacity against such risk or
liability is not reasonably assured or provided to it in its individual
capacity;
(iv) under no circumstances shall the Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the
Transaction Documents, the Depositor's Certificate, the Notes or other
indebtedness of the Trust, including the principal of and interest on the
Notes;
(v) the Owner Trustee shall not be responsible or personally liable
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 Owner Trust
Estate or Transaction Documents and the Owner Trustee shall in no event
assume or incur any personal liability, duty, or obligation to any
Noteholder, the Depositor or any other Person other than as expressly
provided for herein;
(vi) the Owner Trustee shall not be personally liable for the
default or misconduct of the Servicer, the Administrator, the Depositor,
the Indenture Trustee or any other Person under any of the Transaction
Documents or otherwise, and the Owner Trustee shall have no duty to monitor
or supervise any other trustee hereunder, if any, the Certificate Registrar
(if other than the Owner Trustee), the Administrator, the Paying Agent (if
other than the Owner Trustee), any agent or independent contractor of the
Trust, any delegatee of any trustee or any other Person and the Owner
Trustee (as such in its individual capacity) shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or
the other Transaction Documents that are not expressly required to be
performed by the Owner Trustee or that are required to be performed by the
Administrator under the Administration Agreement, the Servicer under the
Sale and Allocation Agreement or the Indenture Trustee under the Indenture;
(vii) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any other
Transaction Document or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this Agreement or any
other Transaction Document at the request, order or direction of the
Depositor or otherwise, unless the Owner Trustee (as such and in its
individual capacity) has been offered 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 any other Transaction
Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable or liable in its individual capacity except to the Trust or
the Depositor for its own willful misconduct, bad faith or gross negligence
in the performance of any such act;
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(viii) under no circumstances shall the Owner Trustee be personally
liable for any representation, warranty, covenant, agreement or
indebtedness of the Trust; and
(ix) in any capacity in which it may act (or refrain from acting)
pursuant to this Agreement or the other Transaction Documents, the Owner
Trustee (as such and in its individual capacity) shall be entitled to the
benefits of the
Trust Agreement.
SECTION 7.2 FURNISHING OF DOCUMENTS.
The Owner Trustee shall furnish to the Depositor 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 Transaction Documents.
SECTION 7.3 REPRESENTATIONS AND WARRANTIES.
The Owner Trustee, in its individual capacity, hereby represents and
warrants to the Depositor that:
(a) it is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement;
(b) it has taken all necessary action to authorize the execution and
delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf; and
(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 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.
SECTION 7.4 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee may rely upon, shall be fully protected in relying
upon, and shall incur no personal 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 an appropriate Person. The Owner Trustee may
conclusively rely (and shall be fully protected in relying) upon an Opinion of
Counsel. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any Person 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
20
president or by the treasurer or other authorized officer of an appropriate
Person, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee (as such and in its individual capacity) 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 other
Transactions 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 personally 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 personally 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.
SECTION 7.5 NOT ACTING IN INDIVIDUAL CAPACITY.
Except as provided in this ARTICLE VII, in accepting the trusts hereby
created, Bankers Trust (Delaware), acts solely as Owner Trustee hereunder and
not in its individual capacity, and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by this Agreement or
any other Transaction Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
SECTION 7.6 OWNER TRUSTEE NOT LIABLE FOR CONTRACTS.
The recitals contained herein and in the Depositor's Certificate (other
than the signature and countersignature of the Owner Trustee on the Depositor's
Certificate) shall be taken as the statements of the Depositor, and the Owner
Trustee assumes no personal responsibility for the correctness thereof. The
Owner Trustee (as such or in its individual capacity) makes no representations
as to the validity or sufficiency of this Agreement, any other Transaction
Document or the Depositor's Certificate (other than the signature and
countersignature of the Owner Trustee on the Depositor's Certificate) or the
Notes, or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or personal liability for or with respect to the
legality, validity and enforceability of any Contract, or the perfection and
priority of any security interest created by any Contract in any Financed
Vehicle or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to the Depositor under this Agreement or the
Noteholders under the Indenture, 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
Contract on any computer or other record thereof, the validity of the assignment
of any Contract to the Trust or any intervening assignment, the completeness of
any Contract, the performance or enforcement of any Contract, the compliance by
the Depositor or the Servicer with any warranty or representation made under any
Transaction Document or in any related document, or the accuracy of any such
warranty or
21
representation or any action of the Indenture Trustee, the Administrator or the
Servicer or any subservicer or any other Person taken in the name of the Owner
Trustee.
SECTION 7.7 OWNER TRUSTEE MAY OWN NOTES.
The Owner Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may deal with the Depositor, the Servicer, the
Administrator and the Indenture Trustee in banking transactions with the same
rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 OWNER TRUSTEE'S FEES AND EXPENSES.
The Owner Trustee in its individual capacity shall receive as compensation
for its services hereunder such fees as have been separately agreed upon before
the date hereof between the Depositor and the Owner Trustee in its individual
capacity in accordance with the priorities set forth in Section 3.5(d) of the
Sale and Allocation Agreement, and the Owner Trustee shall be reimbursed in its
individual capacity by the Depositor in accordance with the priorities set forth
in Section 3.5(d) of the Sale and Allocation Agreement 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, powers, authorities and duties.
SECTION 8.2 INDEMNIFICATION.
The Depositor shall be liable as prime obligor for, and shall indemnify,
from funds available to it pursuant to Section 3.5(d)(xii) of the Sale and
Allocation Agreement, the Owner Trustee in its individual capacity and its
successors, assigns, directors, officers, employees, agents and servants
(collectively, the "INDEMNIFIED PARTIES") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"EXPENSES") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee in its individual capacity or any other Indemnified
Party in any way relating to or arising out of this Agreement, the other
Transaction Documents, the Owner Trust Estate, the administration of the Owner
Trust Estate or the action or inaction of the Owner Trustee hereunder; PROVIDED,
HOWEVER, that the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from any of the
matters described in CLAUSES (a) and (b) of the third sentence of SECTION 7.1.
Neither the Owner Trustee nor the Depositor will in any event be entitled to
make any claim upon the Trust Property for the payment or reimbursement of any
Expenses except in accordance with the Transaction Documents. The indemnities
contained in this SECTION 8.2 and the other benefits, protections and immunities
of the Owner Trustee (as such and in its individual capacity)
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under this Agreement shall survive the resignation or removal of the Owner
Trustee and the termination of this Agreement. Notwithstanding the foregoing
SECTION 8.2, Expenses shall be paid pursuant to this SECTION 8.2 solely from
amounts in excess of funds necessary to pay all outstanding interest and
principal due to the Noteholders in accordance with the priorities set forth in
Sections 3.5(d) of the Sale and Allocation Agreement and shall in any case be
nonrecourse to the Depositor and, to the extent funds are not so available to
pay any Expenses when due and owing, the claims relating thereto shall not
constitute a claim (as defined in Section 101 of Title 11 of the United States
Bankruptcy Code) against the Depositor but shall continue to accrue. Each party
hereto agrees that the payment of any claim of any such party in respect of
Expenses shall be subordinated to the payment in full of all outstanding
interest and principal due to the Noteholders.
SECTION 8.3 PAYMENTS TO THE OWNER TRUSTEE.
Any amounts paid to the Owner Trustee in its individual capacity pursuant
to this ARTICLE VIII shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
ARTICLE IX
TERMINATION
SECTION 9.1 TERMINATION OF
TRUST AGREEMENT.
(a) The Trust shall dissolve at the earlier of (i) the payment to the
Noteholders, the Depositor and the Insurer of all amounts required to be paid to
them pursuant to the terms of the Indenture, the Sale and Allocation Agreement,
the Insurance Agreement and ARTICLE V herein or (ii) the Payment Date next
succeeding the month which is one year after the maturity or other liquidation
of the last Contract and the disposition of any amounts received upon
liquidation of any property remaining in the Trust; PROVIDED, HOWEVER, in each
case, that the Policy shall have been terminated in accordance with its terms
and returned to the Insurer for cancellation. The bankruptcy, liquidation,
dissolution, death or incapacity of the Depositor shall not operate to terminate
or dissolve this Agreement or the Trust, entitle the Depositor'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 Owner Trust Estate or otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) The Depositor shall not be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment Date
upon which the Depositor shall surrender the Depositor's Certificate to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to the Depositor mailed within five (5)
Business Days of receipt by the Owner Trustee of written notice of such
dissolution from the Servicer, stating (i) the Payment Date upon or with respect
to which final payment of the Depositor's Certificate shall be made upon
presentation and surrender of the Depositor's Certificate at the office of the
Paying Agent therein specified, (ii) the amount of any
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such final payment and (iii) that the Record Date otherwise applicable to such
Payment Date is not applicable, payments being made only upon presentation and
surrender of the Depositor's Certificate at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to the Depositor. Upon presentation and surrender of the
Depositor's Certificate, the Paying Agent shall cause to be distributed to the
Depositor amounts distributable on such Payment Date pursuant to SECTION 5.2. In
the event that the Depositor shall not surrender the Depositor's Certificate for
cancellation within six (6) months after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the Depositor to surrender the Depositor's Certificate for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice the Depositor's Certificate shall not have been surrendered
for cancellation, the Owner Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the Depositor concerning
surrender of the Depositor's Certificate and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement.
Subject to applicable escheat laws, any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Paying Agent to the
Depositor.
(d) Upon the completion of the winding up of the Trust, the Owner Trustee,
at the written direction of the Administrator, shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 of the Business Trust
Statute, and thereupon, this Agreement shall terminate.
SECTION 9.2 NOTIFICATION REGARDING BANKRUPTCY OF THE DEPOSITOR.
Promptly after the occurrence of any Insolvency Event with respect to the
Depositor, (a) the Depositor shall give the Owner Trustee, the Indenture Trustee
and the Insurer written notice of such Insolvency Event, (b) the Owner Trustee
shall, upon receipt of such written notice from the Depositor, give prompt
written notice to the Indenture Trustee of the occurrence of such event and
(c) the Indenture Trustee shall, upon receipt of such written notice from the
Depositor or the Owner Trustee, give prompt written notice to the Noteholders of
the occurrence of such event.
SECTION 9.3 PREPAYMENT.
(a) If, as of the last day of any Collection Period, the Pool Balance shall
be less than or equal to 15% of the sum of (a) the aggregate Principal Balances
of all of the Contracts as of the Initial Cutoff Date and (b) the sum, for each
Additional Contract Cutoff Date, of the Aggregate Principal Balances of all
Contracts that became Additional Contracts on such Additional Contract Cutoff
Date, the Depositor shall have the option to purchase on the following Payment
Date the Owner Trust Estate, other than the Collection Account, the Class A Note
Payment Account, the Class B Note Payment Account, the Prefunding Account and
the Reserve Account. To exercise such option, the Depositor shall notify in
writing the Owner Trustee, the Indenture Trustee and the Insurer no later than
fifteen (15) days prior to the Payment Date on which such repurchase is to be
effected (the "PREPAYMENT DATE") and shall deposit into
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the Collection Account on the Business Day preceding such Payment Date an amount
equal to the aggregate Purchase Amount for the Contracts, PLUS the appraised
value of any other Trust Property, other than the Collection Account, the
Class A Note Payment Account, the Class B Note Payment Account, the Prefunding
Account or the Reserve Account, such value to be determined by an appraiser
mutually agreed upon by the Servicer, the Trust, the Indenture Trustee and the
Insurer; PROVIDED, HOWEVER, that the Depositor shall not be permitted to
exercise such option unless the amount to be deposited in the Collection Account
pursuant to this SECTION 9.3(A) is at least equal to the sum of the Class A Note
Balance and the Class B Note Balance PLUS all accrued but unpaid interest
(including any overdue interest) on the Class A Notes PLUS all amounts due the
Insurer under the Insurance Agreement and the Policy. Upon such payment, the
Depositor shall succeed to and own all interests in and to the Owner Trust
Estate other than the Collection Account, the Class A Note Payment Account, the
Class B Note Payment, the Prefunding Account and the Reserve Account. Such
payment amount, PLUS, to the extent necessary, all amounts in the Collection
Account, the Class A Note Payment Account, the Class B Note Payment Account, the
Prefunding Account and the Reserve Account, shall be used to make payments in
full to the Noteholders and the Insurer in the manner set forth in Article III
of the Sale and Allocation Agreement.
(b) If, at the time the Depositor exercises its purchase option hereunder,
the Depositor's long-term unsecured debt has a rating lower than investment
grade by the Rating Agencies, the Depositor shall deliver to the Owner Trustee
and the Indenture Trustee on such Payment Date (i) a letter from an Independent
investment bank or an Independent public accountant to the effect that the price
paid by the Depositor for the Owner Trust Estate other than the Collection
Account, the Class A Note Payment Account, the Class B Note Payment Account, the
Prefunding Account and the Reserve Account at the time of transfer pursuant to
such purchase option represented a fair market price for such assets or (ii) a
letter from the Rating Agencies to the effect that no such letter is required.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.
The Owner Trustee shall at all times (a) be a Person satisfying the
provisions of Section 3807(a) of the Business Trust Statute, (b) be authorized
to exercise corporate trust powers, (c) have a combined capital, surplus and
undivided profits of at least $50,000,000 and be subject to supervision or
examination by federal or state authorities and (d) have (or have a parent that
has) a long-term debt rating of investment grade by each of the Rating Agencies
or otherwise be acceptable to each of the Rating Agencies and the Insurer
(provided that no Insurer Default shall have occurred and be continuing). If
such Person 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 10.1 the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Owner
Trustee shall cease to be eligible in
25
accordance with the provisions of this SECTION 10.1, 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 Administrator and the
Insurer. Upon receiving such notice of resignation, the Administrator shall
promptly appoint a successor Owner Trustee, with the consent of the Insurer, 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 thirty (30) days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction at the expense of the Administrator 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 Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee, with the consent of the Insurer, by written instrument,
in duplicate, one copy of which instrument shall be delivered to the removed
Owner Trustee and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to this SECTION 10.2 shall not become effective
until either (a) acceptance of appointment by the successor Owner Trustee
pursuant to SECTION 10.3 and payment of all amounts owed to the outgoing Owner
Trustee in its individual capacity or (b) the Trust has been dissolved pursuant
to SECTION 9.1 hereof and all amounts received, if any, in connection with the
liquidation of the Trust shall have been distributed to the Noteholders and the
Depositor and all amounts owing to the Insurer have been paid. The Administrator
shall provide notice of such resignation or removal of the Owner Trustee to the
Indenture Trustee, the Depositor, the Noteholders and 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 Administrator 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
26
if originally named as Owner Trustee. The predecessor Owner Trustee shall, upon
payment of amounts owing to it in its individual capacity, deliver to the
successor Owner Trustee all documents, statements and monies held by it under
this Agreement, and the Administrator 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 10.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to SECTION 10.1.
Any successor Owner Trustee appointed pursuant to this SECTION 10.3 shall
file an amendment to the Certificate of Trust with the Secretary of State
reflecting the name and principal place of business of such successor in the
State of Delaware.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this SECTION 10.3, the Administrator shall mail notice of such appointment to
the Depositor, the Indenture Trustee, the Noteholders and the Rating Agencies.
If the Administrator shall fail to mail such notice within ten (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
Administrator.
SECTION 10.4 MERGER OR CONSOLIDATION OF OWNER TRUSTEE.
(a) If the Owner Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another Person, the resulting, surviving or transferee Person without any
further act shall be the successor Owner Trustee; PROVIDED, HOWEVER, that such
Person must be otherwise qualified and eligible under SECTION 10.1. The Owner
Trustee shall provide the Rating Agencies with prior written notice of any such
transaction.
(b) If at the time such successor or successors by consolidation, merger or
conversion to the Owner Trustee shall succeed to the trusts created by this
Agreement a Depositor's Certificate shall have been authenticated but not
delivered, any such successor to the Owner Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver the Depositor's
Certificate so authenticated, and in case at that time the Depositor's
Certificate shall not have been authenticated, such successor to the Owner
Trustee may authenticate the Depositor's Certificate either in the name of any
predecessor trustee or in the name of the successor to the Owner Trustee. In all
such cases such certificate shall have the full force which the Depositor's
Certificate or this Agreement provide that the certificate of the Owner Trustee
shall have.
SECTION 10.5 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
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(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and authority (with the consent of the Insurer, provided that no Insurer
Default shall have occurred and be continuing) and may execute and deliver an
instrument to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee or co-trustees, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person or Persons, in such capacity and for the benefit of the
Depositor, such title to the Owner Trust Estate, or any part thereof, and,
subject to the other provisions of this SECTION 10.5, such powers, authority,
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 fifteen (15) days after the receipt by it of a
request so to do, the Owner Trustee alone 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 under SECTION
10.1 and no notice of the appointment of any co-trustee or separate trustee
shall be required under SECTION 10.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred or imposed 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 shall
not be 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 Owner Trust Estate 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.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this ARTICLE X. 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
28
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.
(d) Any separate trustee or co-trustee may at any time constitute the Owner
Trustee its agent or attorney-in-fact with full power and authority, to the
extent permitted by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement may be amended from time to time by the Depositor and
the Owner Trustee in its individual capacity, with prior written notice to the
Rating Agencies and the Insurer, without the consent of any of the Noteholders,
and with the prior written consent of the Insurer (if no Insurer Default shall
have occurred and be continuing) to cure any ambiguity, to correct or supplement
any provision herein that may be inconsistent with any other provision herein or
in the offering document used in connection with the initial sale of the Notes
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement; PROVIDED, HOWEVER, that
(i) such action shall not, as evidenced by an Opinion of Counsel satisfactory to
the Owner Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder and (ii) an Opinion of Counsel shall be
furnished to the Owner Trustee and the Indenture Trustee to the effect that such
amendment (A) will not materially adversely affect the federal or any Applicable
Tax State income or franchise taxation of any outstanding Note or any Noteholder
and (B) will not cause the Trust to be taxable as a corporation for federal or
any Applicable Tax State income or franchise tax purposes.
(b) This Agreement may be amended from time to time by the Depositor and
the Owner Trustee in its individual capacity, with prior written notice to the
Rating Agencies and the Insurer, with the prior written consent of the Insurer
(if no Insurer Default shall have occurred and be continuing) and with the
consent of the Holders (as defined in the Indenture) of Class A Notes evidencing
not less than 51% of the Class A Note Balance, for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Agreement or modifying in any manner the rights of the Noteholders;
PROVIDED, HOWEVER, that, subject to the express rights of the Insurer under the
Transaction Documents, no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, or change the
allocation or priority of, collections of payments on the Contracts or
distributions that are required to be made on any Note, or change any Note Rate,
or (ii) reduce the aforesaid percentage of the Class A Note Balance required to
consent to any such amendment, without the
29
consent of all the Noteholders affected thereby or (iii) adversely affect the
ratings of the Notes by the Rating Agencies without the consent of the Holders
(as defined in the Indenture) of Class A Notes evidencing not less than 66 2/3%
of the aggregate principal amount of the then outstanding Notes; and, PROVIDED
FURTHER, that (A) such action shall not, as evidenced by an Opinion of Counsel
satisfactory to the Owner Trustee, the Insurer and the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder and
(B) an Opinion of Counsel shall be furnished to the Indenture Trustee, the
Insurer and the Owner Trustee to the effect that such amendment (1) will not
materially adversely affect the federal or any Applicable Tax State income or
franchise taxation of any outstanding Note or any Noteholder and (2) will not
cause the Trust to be taxable as a corporation for federal or any Applicable Tax
State income or franchise tax purposes.
(c) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish, at the expense of the Depositor, written
notification of the substance of such amendment or consent to the Indenture
Trustee and each of the Rating Agencies.
(d) It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this SECTION 11.1 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 provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall file such amendment or cause such amendment to be
filed with the Secretary of State.
(f) The Owner Trustee may, but shall not be obligated to, enter into any
such amendment that affects the Owner Trustee's own rights, duties, liabilities
or immunities (as such or in its individual capacity) under this Agreement or
otherwise.
(g) Prior to the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Trust is a party, the Owner
Trustee shall be entitled to receive and shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent in
this Agreement to the execution and delivery of such amendment have been
satisfied. Notwithstanding any other provision herein or elsewhere, no
amendment, supplement, waiver or consent of or with respect to any other
Transaction Document that affects any right, power, authority, duty, benefit,
protection, privilege, immunity or indemnity of the Owner Trustee (as such or in
its individual capacity) shall be binding on the Owner Trustee (as such or in
its individual capacity) unless the Owner Trustee (as such and in its individual
capacity) shall have expressly consented thereto in writing.
SECTION 11.2 NO LEGAL TITLE TO OWNER TRUST ESTATE IN THE DEPOSITOR.
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The Depositor shall not have legal title to any part of the Owner Trust
Estate. The Depositor shall be entitled to receive distributions with respect to
its undivided beneficial interest therein only in accordance with ARTICLES V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Depositor in and to its beneficial interest in the Owner Trust
Estate shall operate to terminate or dissolve this Agreement, the Trust, 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 Owner Trust Estate.
SECTION 11.3 LIMITATION ON RIGHTS OF OTHERS.
The provisions of this Agreement are solely for the benefit of the Owner
Trustee (as such and in its individual capacity), the Insurer, the Depositor,
the Administrator, the Servicer, the Indemnified Parties and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement or the Depositor's Certificate, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4 NOTICES.
All demands, requests, directions, instructions, notices and other
communications under this Agreement shall be in writing, personally delivered,
sent by telecopier, overnight courier 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 Owner Trustee, at the Corporate Trust Office, with a copy
to Bankers Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance Group (b) in the case of the Depositor, at the
following address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (c) in the
case of the Indenture Trustee, at the following address: Sixth Street and
Marquette Avenue MAC N9311-161, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services - Asset-Backed Administration, (d) in the case of
Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service, Inc., ABS
Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (e) in the
case of S&P, at the following address: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department, and
(f) in the case of the Insurer, at the following address: MBIA Insurance
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insured
Portfolio Management, Structured Finance.
SECTION 11.5 SEVERABILITY.
If any provision of this Agreement or the Depositor's Certificate shall be
held for any reason whatsoever invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement and
the Depositor's Certificate shall not in any way be affected or impaired
thereby.
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SECTION 11.6 SEPARATE COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
counterparts when so executed shall be deemed to be an original, and all of
which counterparts shall together constitute but one and the same instrument.
SECTION 11.7 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement shall be binding upon, and
inure to the benefit of the Depositor, the Insurer and the Owner Trustee (as
such and in its individual capacity) and its successors as herein provided.
SECTION 11.8 COVENANTS OF THE DEPOSITOR.
The Depositor shall not at any time institute against the Trust, or join in
any institution against the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Agreement or any of the other
Transaction Documents.
SECTION 11.9 NO PETITION.
The Owner Trustee (not in its individual capacity but solely as Owner
Trustee), by entering into this Agreement and the Depositor, the Indenture
Trustee and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree and shall be deemed to covenant and agree that they will not
at any time institute against or knowingly or intentionally cooperate or
encourage any other Person in instituting against, the Depositor or the Trust,
in 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
Notes, this Agreement or any of the other Transaction Documents.
SECTION 11.10 HEADINGS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not define or limit any of the terms or provisions
hereof.
SECTION 11.11 GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Delaware and the obligations, rights and remedies of the parties under this
Agreement shall be determined in accordance with such laws.
32
SECTION 11.12 AMENDMENT OF TRUST AGREEMENT.
This Agreement amends, restates and replaces in its entirety the Original
Trust Agreement.
SECTION 11.13 OWNER TRUSTEE PRESUMPTION.
For all purposes, the Owner Trustee shall be entitled to presume (and shall
be fully protected in presuming) that no Insurer Default has occurred or exists
unless a Responsible Officer of the Owner Trustee has obtained actual knowledge
or received written notice to the contrary.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers, thereunto duly authorized and
duly attested, all as of the day and year first above written.
FIRST INVESTORS AUTO FUNDING CORPORATION,
as Depositor
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANKERS TRUST (DELAWARE),
as Owner Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
STATE OF NORTH CAROLINA )
) ss. :
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
January, 2002, by ▇▇▇▇▇▇ ▇. Duck, as Vice President - Treasurer of FIRST
INVESTORS AUTO FUNDING CORPORATION.
----------------------------------------------------
Notary Public in and for the State of North Carolina
[SEAL]
My commission expires: August 29, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) ss. :
COUNTY OFUNION )
The foregoing instrument was acknowledged before me this ____ day of
January, 2002, by ____________________, as ____________________ of BANKERS TRUST
(DELAWARE), a Delaware banking corporation.
----------------------------------------------------
Notary Public in and for the State of
--------------
[SEAL]
My commission expires: ____________
Exhibit A
Form of Depositor's Certificate
(to be attached)
Exhibit B
Certificate of Trust
(Please see attached.)