EXHIBIT 4.1
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AMENDED AND RESTATED TRUST AGREEMENT
by and between
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV
as Trust Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of ______________
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TABLE OF CONTENTS
ARTICLE ONE Page
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DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. CAPITALIZED TERMS. . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. . . . . . . . . . . . . . . 3
SECTION 1.03. USAGE OF TERMS . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.04. SECTION REFERENCES . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.05. ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.01. NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02. OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03. PURPOSES AND POWERS. . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE . . . . . . . . . . . . . . . 5
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE . . . . 6
SECTION 2.06. DECLARATION OF TRUST . . . . . . . . . . . . . . . . . . . 6
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR . . . . . . . . . . . . . . . 6
SECTION 2.08. TITLE TO TRUST PROPERTY. . . . . . . . . . . . . . . . . . 6
SECTION 2.09. SITUS OF TRUST . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR. . . 7
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS . . . . . . . . . . . . . . 7
ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTEREST . . . . . . . . . . . . . . .10
SECTION 3.01. INITIAL OWNERSHIP. . . . . . . . . . . . . . . . . . . . .10
SECTION 3.02. THE TRUST CERTIFICATES . . . . . . . . . . . . . . . . . .10
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATES. . . . .10
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES. .12
SECTION 3.06. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . .12
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.12
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . .12
SECTION 3.09. TEMPORARY TRUST CERTIFICATES . . . . . . . . . . . . . . .12
SECTION 3.10. APPOINTMENT OF PAYING AGENT. . . . . . . . . . . . . . . .13
SECTION 3.11. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATES . . . .13
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.01. Prior Notice to Owners with Respect to Certain Matters . .15
SECTION 4.02. ACTION BY OWNERS WITH RESPECT TO CERTAIN MATTERS . . . . .15
SECTION 4.03. ACTION BY OWNERS WITH RESPECT TO BANKRUPTCY. . . . . . . .15
SECTION 4.04. RESTRICTIONS ON OWNERS' POWER. . . . . . . . . . . . . . .15
SECTION 4.05. MAJORITY CONTROL . . . . . . . . . . . . . . . . . . . . .16
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT . . . . . . . . . . . . . .17
SECTION 5.02. APPLICATION OF TRUST FUNDS . . . . . . . . . . . . . . . .17
SECTION 5.03. METHOD OF PAYMENT. . . . . . . . . . . . . . . . . . . . .17
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST. . . . . . . . . . .17
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, OWNERS,
THE INTERNAL REVENUE SERVICE AND OTHERS. . . . . . . . . .17
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. . . . . . . . .18
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . .19
SECTION 6.01. GENERAL AUTHORITY. . . . . . . . . . . . . . . . . . . . .19
SECTION 6.02. GENERAL DUTIES . . . . . . . . . . . . . . . . . . . . . .19
SECTION 6.03. ACTION UPON INSTRUCTION. . . . . . . . . . . . . . . . . .19
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 6.06. RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . .21
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. . . . . . . . . . . . . .21
SECTION 7.02. FURNISHING OF DOCUMENTS. . . . . . . . . . . . . . . . . .22
SECTION 7.03. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . .22
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL. . . . . . . . . . . . . . . .22
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. . . . . . . . . . . . .22
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES, NOTES OR
CONTRACTS. . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES . . . .23
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . .24
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. . . . . . . . . . . . .24
SECTION 8.02. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . .24
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. . . . . . . . . . . . . . .24
ARTICLE NINE
TERMINATION OF AMENDED AND RESTATED TRUST AGREEMENT . . . . . . . . . . .25
SECTION 9.01. TERMINATION OF AMENDED AND RESTATED TRUST AGREEMENT. . . .25
SECTION 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR
WITHDRAWAL OR REMOVAL OF TRUST DEPOSITOR . . . . . . . . .25
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES. . . . . . . . . .26
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SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. . . . . . . .26
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE . . . . . . . . .26
SECTION 10.03. SUCCESSOR OWNER TRUSTEE . . . . . . . . . . . . . . . . .26
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. . . . . . . . .27
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE . . . . . .27
ARTICLE ELEVEN
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. . . . . . . . . . . . . . . .29
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNERS. . . . . . . . .29
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS . . . . . . . . . . . . .30
SECTION 11.04. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 11.05. SEVERABILITY OF PROVISIONS. . . . . . . . . . . . . . . .31
SECTION 11.06. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . .31
SECTION 11.07. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . .31
SECTION 11.09. NO PETITION . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 11.10. NO RECOURSE . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 11.11. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 11.12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .32
SECTION 11.13. TRUST CERTIFICATE TRANSFER RESTRICTIONS . . . . . . . . .32
SECTION 11.14. TRUST DEPOSITOR PAYMENT OBLIGATION. . . . . . . . . . . .32
EXHIBITS
Exhibit A - Form of Certificate of Trust . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Trust Certificate. . . . . . . . . . . . . . . . . . . . B-1
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AMENDED AND RESTATED TRUST AGREEMENT dated as of __________, between
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV, a Nevada corporation, as Trust
Depositor (the "TRUST DEPOSITOR"), and Wilmington Trust Company, a Delaware
banking corporation, as owner trustee (the "OWNER TRUSTEE").
WHEREAS, in connection herewith, the Trust Depositor is willing to assume
certain obligations pursuant hereto; and
WHEREAS, in connection herewith, the Trust Depositor is willing to purchase
the Trust Depositor Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CAPITALIZED TERMS. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"ADMINISTRATION AGREEMENT" means the administration agreement, dated as of
the date hereof, among the Trust, the Trust Depositor, the Indenture Trustee and
Eaglemark, as administrator.
"AGREEMENT" means this Amended and Restated Trust Agreement, as the same
may be amended and supplemented from time to time.
"APPLICANT" shall have the meaning set forth in Section 3.07.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity.
"BOOK-ENTRY TRUST CERTIFICATE" means a beneficial interest in the Trust
Certificates, the ownership of which shall be evidenced by, and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 3.12.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware Code,
12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to time.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement dated as of the
Closing Date, by and among the Trust, the Owner Trustee, the Administrator and
DTC, as the initial Clearing Agency, substituting, in the form attached hereto
as Exhibit A, relating to the Trust Certificates, other than the Trust Depositor
Certificate, as the same may be amended and supplemented from time to time.
"CERTIFICATE DISTRIBUTION ACCOUNT" means the account established and
maintained as such pursuant to Section 5.01.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of EXHIBIT A hereto.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the register (or any successor thereto) appointed pursuant to
Section 3.04.
"CERTIFICATEHOLDER" or "HOLDER" means with respect to Definitive Trust
Certificates the Person in whose name a Trust Certificate is registered in the
Certificate Register and with respect to a Book-Entry Trust Certificate, the
Person who is the owner of such Book-Entry Trust Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
either case, in accordance with the rules of such Clearing Agency), except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to this Agreement, the interest evidenced by any Trust Certificate
registered in the name of the Trust Depositor, Eaglemark or any of their
respective Affiliates shall not be taken into account in determining whether the
requisite percentage necessary to effect any such consent, waiver, request or
demand in respect of the Trust Certificate shall have been obtained.
"CLEARING AGENCY" means an organization registered as a "CLEARING AGENCY"
pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"CLOSING DATE" means _______________.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DEFINITIVE TRUST CERTIFICATES" shall have the meaning set forth in
Section 3.12.
"EAGLEMARK" means Eaglemark, Inc., a Nevada Corporation.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" shall have the meaning assigned to such term in Section 8.02.
"INDEMNIFIED PARTIES" shall have the meaning assigned to such term in
Section 8.02.
"INDENTURE" means the Indenture dated as of the date hereof between the
Trust and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture Trustee.
"INITIAL CERTIFICATE BALANCE" means $[ ].
"INITIAL PURCHASER" means Salomon Brothers Inc.
"NOTE DEPOSITORY AGREEMENT" means the Agreement dated as of the Closing
Date among the Trust, the Indenture Trustee, the Administrator and DTC, as the
initial Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"NOTES" means the Class A-1 Notes and the Class A-2 Notes, in each case
issued pursuant to the Indenture.
"OWNER" means each Holder of a Trust Certificate.
"OWNER TRUSTEE" means Wilmington Trust Company, a Delaware corporation, not
in its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
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"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: Corporate Trust Administration, or such other office
at such other address as the Owner Trustee may designate from time to time by
notice to the Certificateholders, the Servicer, the Trust Depositor and
Eaglemark.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 3.10.
"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof) unincorporated organization or government or any agency or political
subdivision thereof.
"RECORD DATE" means, with respect to any Distribution Date, the last
Business Day of the preceding calendar month.
"SALE AND SERVICING AGREEMENT" means the sale and servicing agreement,
dated as of the date hereof, among the Trust, as Issuer, the Trust Depositor,
Eaglemark, as servicer, and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture Trustee
as the same may be amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
"TREASURY REGULATIONS" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the trust established by this Agreement.
"TRUST CERTIFICATES" means the trust certificates evidencing the beneficial
equity interest of an Owner in the Trust, substantially in the form of EXHIBIT B
hereto.
"TRUST DEPOSITOR" means Eaglemark Customer Funding Corporation-IV in its
capacity as Trust Depositor hereunder, and its successors.
"TRUST DEPOSITOR CERTIFICATE" means the Trust Certificate purchased by the
Trust Depositor on the Closing Date pursuant to Section 3.11, having an initial
principal balance equal to $[ ].
"TRUST ESTATE" means all right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of the Trust from time to time, including any rights of the Owner Trustee and
the Trust pursuant to the Sale and Servicing Agreement and the Administration
Agreement.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. Capitalized terms used that
are not otherwise defined herein shall have the meanings ascribed thereto in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
SECTION 1.03. USAGE OF TERMS. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "WRITING" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "INCLUDING" means "INCLUDING WITHOUT LIMITATION".
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SECTION 1.04. SECTION REFERENCES. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
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ARTICLE TWO
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as "HARLEY-
DAVIDSON EAGLEMARK OWNER TRUST 1997-1", in which name the Owner Trustee may
conduct the activities of the Trust, make and execute contracts and other
instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Owners and the Trust Depositor.
SECTION 2.03. PURPOSES AND POWERS.
(a) The sole purpose of the Trust is to conserve the Trust Estate and
collect and disburse the periodic income therefrom for the use and benefit of
the Owners, and in furtherance of such purpose to engage in the following
ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and the Trust
Certificates;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase the Contracts, to fund the Pre-Funding Account
and to pay the organizational, start-up and transactional expenses of the
Trust and to pay the balance to the Trust Depositor pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the Owners pursuant to the Sale and Servicing Agreement any portion of
the Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Owners and the Noteholders.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee to engage in any business operations or any activities other than those
set forth in the introductory sentence of this Section. Specifically, the Owner
Trustee shall have no authority to engage in any business operations, or acquire
any assets other than those specifically included in the Trust Estate under
Section 1.01, or otherwise vary the assets held by the Trust. Similarly, the
Owner Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of this Section.
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SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Trust Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Trust Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Trust Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Trust Estate
and shall be deposited in the Certificate Distribution Account. The Trust
Depositor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Estate and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Owners, subject to the obligations of the Trust under the Transaction
Documents. It is the intention of the parties hereto that the Trust constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets of the partnership
being the Contracts and other assets held by the Trust, the partners of the
partnership being the Certificateholders (including the Trust Depositor) and the
Notes being debt of the partnership. The parties agree that, unless otherwise
required by a final determination to the contrary, the Trust will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership, the partners
of the partnership being the Certificateholders (including the Trust Depositor)
and the Notes being debt of the partnership, for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute for the sole purpose
and to the extent necessary to accomplish the purpose of this Trust as set forth
in the introductory sentence of Section 2.03.
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the Trust
Depositor shall be liable directly to and will indemnify any injured party or
any other creditor of the Trust for all losses, claims, damages, liabilities and
expenses of the Trust to the extent that the Trust Depositor would be liable if
the Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which Trust Depositor were a general partner; PROVIDED,
HOWEVER, that Trust Depositor shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Trust Certificates or a
Noteholder in the capacity of an investor in the Notes. In addition, any third
party creditors of the Trust (other than in connection with the obligations
described in the immediately preceding sentence for which the Trust Depositor
shall not be liable) shall be deemed third party beneficiaries of this
paragraph. The obligations of the Trust Depositor under this paragraph shall be
evidenced by the Trust Certificates described in Section 3.11, which for
purposes of the Business Trust Statute shall be deemed to be a separate class of
Trust Certificates from all other Trust Certificates issued by the Trust;
provided that the rights and obligations evidenced by all Trust Certificates,
regardless of class, shall, except as provided in this Section, be identical.
(b) No Owner, other than to the extent set forth in Section 2.07(a), shall
have any personal liability for any liability or obligation of the Trust.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to the 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 Trust
Estate to be vested in an Owner Trustee or Owner 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 2.09. SITUS OF TRUST. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Illinois or the State of
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Delaware. The Trust shall not have any employees in any state other than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware and payments will be
made by the Trust only from Delaware. The only office of the Trust will be at
the Owner Trustee Corporate Trust Office.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Trust Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the laws of
the State of Nevada, with power and authority to own its properties and to
conduct its business and had at all relevant times, and has, power,
authority and legal right to acquire and own the Contracts.
(ii) The Trust 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.
(iii) The Trust Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; the Trust Depositor
has full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee on behalf of the Trust as
part of the Trust Estate and has duly authorized such sale and assignment
and deposit with the Owner Trustee on behalf of the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Agreement have been duly authorized by the Trust Depositor by all necessary
corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Trust Depositor, or any indenture, agreement
or other instrument to which the Trust Depositor is a party or by which it
is bound; nor result in the creation or imposition of any Lien upon any of
the properties of the Trust Depositor pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the
Transaction Documents); nor violate any law or any order, rule or
regulation applicable to the Trust Depositor of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trust Depositor or its
properties.
(v) There are no proceedings or investigations pending, or to the
Trust Depositor's best knowledge threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Trust Depositor or its properties: (A) asserting the
invalidity of this Agreement, any of the other Transaction Documents or the
Trust Certificates, (B) seeking to prevent the issuance of the Trust
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any of the other Transaction Documents, (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Trust Depositor of its obligations under, or the
validity or enforceability of, this Agreement, any of the other Transaction
Documents or the Trust Certificates or (D) involving the Trust Depositor
and which might adversely affect the federal income tax or other federal,
state or local tax attributes of the Trust Certificates.
(vi) The Trust Depositor will maintain a net worth, exclusive of its
interest in the Trust and any accounts or notes receivable from the Trust,
in excess of 10% the principal balance of the Certificates and the Reserve
Fund Initial Deposit and the Certificate Reserve Amount.
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SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS.
(a) Trust items of income, gain, loss and deduction for any month as
determined for federal income tax purposes shall be allocated as follows:
(i) The Certificateholders, as of the first Record Date following
the end of such month, shall be allocated the following items in proportion
to their ownership of the principal amount of Trust Certificates on such
date: (A) interest equal to the Certificate Interest Distributable Amount
for such month, (B) accrued interest on the excess, if any, of the
Certificate Interest Distributable Amount for the preceding Distribution
Date over the amount in respect of interest that is actually deposited in
the Certificate Distribution Account on such preceding Distribution Date,
to the extent permitted by law, at the Pass-Through Rate from such
preceding Distribution Date through the current Distribution Date, (C) the
portion of the market discount on the Contracts accrued during such quarter
that is allocable to the excess, if any, of the initial aggregate principal
amount of the Trust Certificates over their initial aggregate issue price
and (D) any other items of income and gain payable to the
Certificateholders for such month; such sum to be reduced by any
amortization deduction by the Trust of premium on Contracts that
corresponds to any excess of the issue price of Trust Certificates over
their principal amount; and
(ii) to the Trust Depositor to the extent of any remaining items of
income, gain, loss and deduction.
If the items of income or gain of the Trust for any calendar quarter are
insufficient for the allocations described in Section 2.11(a)(i), subsequent
items of income or gain shall first be allocated to make up such shortfall
before being allocated as provided in Section 2.11(a)(ii).
(b) To the extent that the Trust Depositor would be allocated cumulative
items of loss and deduction in excess of the sum of (A) the cumulative items of
income and gain, if any, allocated to the Trust Depositor, PLUS (B) the
cumulative contributions made by the Trust Depositor to the Trust, PLUS (C) the
amount of Trust liabilities or claims, if any, for which the Trust Depositor is
liable pursuant to Section 2.07 or otherwise allocated under Section 752 of the
Code, LESS (D) the cumulative distributions made to the Trust Depositor pursuant
to Section 5.02 hereof, then such excess items of loss and deduction shall
instead be allocated among the Certificateholders (other than the Trust
Depositor) as of the first Record Date following the end of such quarter in
proportion to their ownership of the principal amount of Trust Certificates on
such Record Date until the cumulative items of loss and deduction allocated to
such Certificateholders equal the sum of (I) the cumulative items of income and
gain allocated to such Certificateholders, PLUS (II) the cumulative
contributions made by such Certificateholders to the Trust, PLUS (III) the
amount of Trust liabilities allocated to such Certificateholders under
Section 752 of the Code, LESS (IV) the cumulative distributions made to the
Trust Depositor pursuant to Section 5.02 hereof. Thereafter, any such excess
items of loss and deduction shall be allocated among the Trust Depositor and the
other Certificateholders in accordance with how such Persons are reasonably
expected to bear the economic burden of such items.
(c) The provisions of this Agreement relating to the allocations are
intended to comply with Treasury Regulation Sections 1.704-1 and 1.704-2. The
Trust Depositor and Eaglemark are authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Trust
Depositor or to the Certificateholders, or as otherwise to cause such
allocations to have substantial economic effect within the meaning of
Regulations Section 1.704-1(b)(2) or to be deemed to be in accordance with the
interests in the Trust under such Treasury Regulations.
SECTION 2.12. CHECK-THE-BOX PROPOSAL. If Treasury Regulations
Sections 301.7701-1 through Section 301.7701-3 are amended such that the Trust
would not be classified as an association taxable as a corporation if the
requirements of Sections 2.07(a), 2.10(vi) and 9.02 hereof (collectively, the
"Partnership Qualification Provisions") were no longer applicable and the Trust
made any necessary elections to avoid classification as an association taxable
as a
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corporation required by such regulations (such an amendment, a "Tax
Characterization Amendment"), the Partnership Qualification Provisions shall no
longer be applicable or part of this Agreement; provided, however, that the
Partnership Qualification Provisions shall no longer be applicable or part of
this Agreement only if the Owner Trustee first obtains an Opinion of Counsel
stating that (i) a Tax Characterization Amendment has been adopted and (ii) the
deletion of the Partnership Qualification Provisions will not cause the Trust to
be classified as an association taxable as a corporation. To the extent the Tax
Characterization Amendment requires the Trust to affirmatively elect to be
treated as a partnership, the Trust Depositor, the Certificateholders and the
Owner Trustee at the discretion and expense of the Trust Depositor, shall take
all actions necessary under such regulations for the Trust to be treated as a
partnership for federal income tax purposes.
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ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Trust Depositor pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Trust Depositor shall be the sole
beneficiary of the Trust.
SECTION 3.02. THE TRUST CERTIFICATES. The Trust Certificates shall be
substantially in the form of EXHIBIT B hereto. The Trust Certificates shall be
issuable in minimum denominations of $500,000 and integral multiples of $1,000
in excess thereof; PROVIDED, HOWEVER, that the Trust Certificates issued to the
Trust Depositor pursuant to Section 3.11 may be issued in such denomination as
required to include any residual amount. The Trust Certificates shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and shall be deemed to
have been validly issued when so executed. Trust Certificates bearing the
manual or facsimile signature of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Owner Trustee shall
be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Trust Certificates or did not hold such
offices at the date of such Trust Certificates. All Trust Certificates shall be
dated the date of their authentication.
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATES. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Trust Depositor, in exchange for the Contracts and the other assets of the
Trust, simultaneously with the sale, assignment and transfer to the Trust of the
Contracts, and the constructive delivery to the Owner Trustee of the Contract
Files and the other assets of the Trust, Trust Certificates duly authenticated
by the Owner Trustee, in authorized denominations equaling in the aggregate the
Initial Certificate Balance evidencing the entire ownership of the Trust and
Notes issued by the Owner Trustee and authenticated by the Indenture Trustee in
aggregate principal amount of, in the case of (i) Class A-1 Notes, $[ ],
and (ii) Class A-2 Notes, $[ ]. No Trust Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Trust Certificate a certificate of authentication
substantially in the form set forth in the form of Trust Certificate attached
hereto as EXHIBIT B, executed by the Owner Trustee or its authenticating agent,
by manual signature, and such certificate upon any Trust Certificate shall be
conclusive evidence, and the only evidence, that such Trust Certificate has been
duly authenticated and delivered hereunder. Upon issuance, authorization and
delivery pursuant to the terms hereof, the Trust Certificates will be entitled
to the benefits of this Agreement.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of Trust
Certificates and transfers and exchanges of Trust Certificates as provided
herein. The Owner Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering Trust Certificates and transfers and exchanges of
Trust Certificates as herein provided. In the event that, subsequent to the
Closing Date, the Owner Trustee notifies the Servicer that it is unable to act
as Certificate Registrar, the Servicer shall appoint another bank or trust
company, having an office or agency located in the City of Chicago, Illinois,
agreeing to act in accordance with the provisions of this Agreement applicable
to it, and otherwise acceptable to the Owner Trustee, to act as successor
Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of any Trust Certificate
at the Owner Trustee Corporate Trust Office, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of a
like aggregate principal amount.
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(c) At the option of a Certificateholder, Trust Certificates may be
exchanged for other Trust Certificates in authorized denominations of a like
aggregate principal amount, upon surrender of the Trust Certificates to be
exchanged at any such office or agency. Whenever any Trust Certificates are so
surrendered for exchange, the Owner Trustee on behalf of the Trust shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver) the Trust Certificates that the Certificateholder
making the exchange is entitled to receive. Every Trust Certificate presented
or surrendered for registration of transfer or exchange shall be accompanied by
a written instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Trust Certificates.
(e) All Trust Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Owner Trustee.
(f) The Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless (i) such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or (ii) (A) such transfer is exempt from the registration
requirements under the Securities Act and such state securities laws and (B) the
Certificate Registrar either (x) is notified by such transferee that such
Certificate shall be registered in the name of the Clearing Agency or its
nominee and shall be held by such transferee in book-entry form through the
Clearing Agency or (y) receives written certification from such Holder and such
Holder's prospective transferee, substantially in the form of Exhibits C and D,
setting forth the basis of the exemption from such registration requirements.
The Trust Depositor and the Servicer hereby agree to provide to any Holder of a
Certificate and any prospective transferee designated by any such Holder
information regarding the Certificates and the Contracts and such other
information as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. Each Holder of a Certificate desiring to
effect such a transfer shall, and does by its acceptance of a Certificate or of
a beneficial interest therein, agree to indemnify the Trust Depositor, the
Trustee and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with federal and state securities
laws. If an election is made to hold a Certificate in book-entry form, the
Certificate shall be registered in the name of a nominee designated by the
Clearing Agency (and may be aggregated as to denominations with other
Certificates held by the Clearing Agency). With respect to Certificates held in
book-entry form:
(i) the Certificate Registrar and the Owner Trustee will be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement (including the payment of principal of and interest on the
Certificates and the giving of instructions or directions hereunder) as
the sole holder of the Certificates, and shall have no obligation to the
Certificate Owners;
(ii) the rights of Certificate Owners will be exercised only through
the Clearing Agency and will be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
Clearing Agency Participants pursuant to the Certificate Depository
Agreement;
(iii) whenever this Trust Agreement requires or permits actions to
be taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Outstanding Amount of the
Certificates, the Clearing Agency will be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants owning
or representing, respectively, such required percentage of the beneficial
interest in the Certificates and has delivered such instructions to the
Owner Trustee; and
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(iv) without the consent of the Issuer and the Owner Trustee, no
such Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold such Certificate for the account of the
Owners or except upon the election of the Owner thereof or a subsequent
transferee to hold such Certificate in physical form.
Neither the Owner Trustee nor the Certificate Registrar shall have any
responsibility to monitor or restrict the transfer of beneficial ownership in
any Certificate an interest in which is transferable through the facilities of
the Depository.
The Issuer shall cause each Certificate to contain a legend stating that
transfer of the Certificates is subject to certain restrictions and referring
prospective purchasers of the Certificates to this Section 2.04 with respect to
such restrictions.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES. If
(i) any mutilated Trust Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Trust Certificate, and (ii) there is delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice that such Trust Certificate has been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee or
its authenticating agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new
Trust Certificate of like tenor and fractional undivided interest. In
connection with the issuance of any new Trust Certificate under this Section,
the Owner Trustee may require the payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto. Any duplicate Trust Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and any of their respective agents may treat the Person in whose name
any Trust Certificate is registered as the owner of such Trust Certificate for
the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar, any Paying Agent or any of their respective agents shall be affected
by any notice of the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Trust Depositor, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer or the Trust Depositor, a list, in
such form as the Servicer or the Trust Depositor may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date.
If three or more Certificateholders, or one or more Certificateholders of Trust
Certificates evidencing not less than 25% of the percentage interests of the
Trust Certificates (hereinafter referred to as "APPLICANTS"), apply in writing
to the Owner Trustee, and such application states that the Applicants desire to
communicate with other Certificateholders with respect to their rights hereunder
or under the Trust Certificates and such application is accompanied by a copy of
the communication that such Applicants propose to transmit, then the Owner
Trustee shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current list
of Certificateholders. Every Certificateholder, by receiving and holding a
Trust Certificate, agrees with the Servicer, the Trust Depositor and the Owner
Trustee that none of the Servicer, the Trust Depositor or the Owner Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in Wilmington, Delaware, an office or offices or agency or agencies
where Trust Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Trust Certificates and this Agreement may be served. The Owner Trustee
hereby designates the Owner Trustee Corporate Trust Office
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as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Trust Depositor, the Servicer and to Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
SECTION 3.09. TEMPORARY TRUST CERTIFICATES. Pending the preparation of
definitive Trust Certificates, the Owner Trustee, on behalf of the Trust, may
execute, authenticate and deliver, temporary Trust Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Trust
Certificates in lieu of which they are issued. If temporary Trust Certificates
are issued, the Trust Depositor will cause definitive Trust Certificates to be
prepared without unreasonable delay. After the preparation of definitive Trust
Certificates, the temporary Trust Certificates shall be exchangeable for
definitive Trust Certificates upon surrender of the temporary Trust Certificates
at the office or agency to be maintained as provided in Section 3.08, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Trust Certificates, the Owner Trustee shall execute and authenticate
and deliver in exchange therefor a like principal amount of definitive Trust
Certificates in authorized denominations. Until so exchanged, the temporary
Trust Certificates shall in all respects be entitled to the same benefits
hereunder as definitive Trust Certificates.
SECTION 3.10. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.02(a) and shall report the amounts of such distributions
to the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent initially shall
be ▇▇▇▇▇▇ Trust and Savings Bank, and any co-paying agent chosen by the Paying
Agent that is acceptable to the Owner Trustee. Each Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that ▇▇▇▇▇▇ Trust and Savings Bank shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01
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.
SECTION 3.11. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATES. Trust
Depositor shall on the Closing Date purchase from the Initial Purchaser Trust
Certificates representing at least 1% of the Initial Certificate Balance and
shall thereafter retain beneficial and record ownership of Trust Certificates
representing at least 1% of the Certificate Balance. Any attempted transfer of
any Trust Certificate that would reduce such interest of the Trust Depositor
below 1% of the Certificate Balance shall be void. The Owner Trustee shall
cause any Trust Certificate issued to the Trust Depositor on the Closing Date
(and any Trust Certificate issued in exchange therefor) to contain a legend
stating "THIS CERTIFICATE IS NON-TRANSFERABLE".
SECTION 3.12. BOOK-ENTRY CERTIFICATES. The Trust Certificates upon
original issuance will be issued in the form of one or more typewritten
certificates representing the Book-Entry Trust Certificates, to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Trust; provided,
however, that one definitive Trust Certificate (as defined below) may be issued
to the Trust Depositor pursuant to Section 3.11. The certificate or
certificates delivered to DTC evidencing such Trust Certificates shall initially
be registered on the Certificate Register in the name of CEDE & CO., the nominee
of the initial Clearing Agency, and no Certificateholder (other than the
Company) will receive a definitive certificate representing such
Certificateholders' interest in the Trust Certificates, except as provided in
Section
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3.14. Unless and until definitive, fully registered Trust Certificates (the
"DEFINITIVE TRUST CERTIFICATES") have been issued to Certificateholders pursuant
to section 3.14:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Trust Depositor, the Servicer, the Certificate Registrar and the
Owner Trustee, subject to the provisions and limitations of Sections 2.03
and 2.06, may deal with the Clearing Agency for all purposes (including the
making of distributions on the Trust Certificates) as the authorized
representative of the Certificateholders;
(iii) to the extent that the provisions of this section conflict with
any other provisions of this agreement, the provisions of this Section
shall control;
(iv) the rights of Certificateholder shall be exercised only through the
Clearing Agency (or through procedures established by the Clearing agency)
and shall be limited to those established by law and agreements between the
Holder and the Clearing Agency and/or the Clearing Agency Participants;
pursuant to the Certificate Depository Agreement, unless and until
Definitive Trust Certificates are issued pursuant to Section 3.14, the
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Trust Certificates to such Clearing Agency Participants;
and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders evidencing a
specified percentage of the percentage interests thereof, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Certificateholders and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in Trust Certificates and
has delivered such instructions to the Owner Trustee.
SECTION 3.13. NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required hereunder, unless and until
Definitive Trust Certificates shall have been issued to Certificateholders
pursuant to Section 3.14, the Owner Trustee and the Master Servicer shall give
all such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency.
SECTION 3.14. DEFINITIVE TRUST CERTIFICATES. If (i)(A) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities as described in the
Certificate Depository Agreement and (B) the Owner Trustee or the Administrator
is unable to locate a qualified successor, (ii) the Administrator, at its
option, advises the Owner Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) after the occurrence of
an Event of Default or a Termination Event, Certificateholders representing
beneficial interests aggregating not less than 51% of the Certificate Balance
advise the Owner Trustee and the Clearing Agency through the Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Trust, then the
Clearing Agency shall notify all Certificateholders and the Owner Trustee of the
occurrence of any such event and of the availability of Definitive Trust
Certificates to Certificateholders requesting the same. Upon surrender to the
Owner Trustee by the Clearing Agency of the certificates evidencing the Book-
Entry Trust Certificates, accompanied by registration instructions from the
Clearing Agency for registration, the Owner Trustee shall issue the Definitive
Trust Certificates and deliver such Definitive Trust Certificates in accordance
with the instructions of the Clearing Agency. Neither the Trust Depositor, the
Certificate Registrar nor the Owner Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Trust Certificates, the Owner Trustee shall recognize the Certificateholders of
the Definitive Trust Certificates as Certificateholders hereunder. The Owner
Trustee shall not be liable if the Owner Trustee or the Administrator is unable
to locate a qualified successor Clearing Agency. The Definitive Trust
Certificates shall be
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printed, lithographed or engraved or may be produced in any manner as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO OWNERS WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitation of Section 4.04, with respect to the
following matters, the Owner Trustee shall not take action unless at least 30
days before the taking of such action, the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action, the Indenture Trustee
shall have consented to such action in the event any Notes are outstanding and
the Owners shall not have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Owners have withheld consent or
provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the 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);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Owners;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially and
adversely affect the interests of the Owners; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent top the assignment by
the Note Registrar, Paying Agent, Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or the Agreement, as
applicable.
SECTION 4.02. ACTION BY OWNERS WITH RESPECT TO CERTAIN MATTERS. Subject
to the provisions and limitations of Section 4.04, the Owner Trustee shall not
have the power, except upon the direction of the Owners, to (a) remove the
Administrator pursuant to Section 8 of the Administration Agreement, (b) appoint
a successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Servicer pursuant to Section 8.01 of the Sale and Servicing
Agreement, (d) except as expressly provided in the Transaction Documents, sell
the Contracts after the termination of the Indenture, (e) initiate any claim,
suit or proceeding by the Trust or compromise any claim, suit or proceeding
brought by or against the Trust, (f) authorize the merger or consolidation of
the Trust with or into any other business trust or entity (other than in
accordance with Section 3.10 of the Indenture) or (g) amend the Certificate of
Trust. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions assigned by the Owners.
SECTION 4.03. ACTION BY OWNERS WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the unanimous prior approval of all
Owners and the delivery to the Owner Trustee by each such Owner of a certificate
certifying that such Owner reasonably believes that the Trust is insolvent.
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SECTION 4.04. RESTRICTIONS ON OWNERS' POWER. The Owners shall not direct
the Owner Trustee to take or to refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Transaction Documents or would be contrary to
the purpose of this Trust as set forth in Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.05. MAJORITY CONTROL. Except as expressly provided herein, any
action that may be taken by the Owners under this Agreement may be taken by the
Holder of Trust Certificates evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice of
the Owners delivered pursuant to this Agreement shall be effective if signed by
Holder of Trust Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Account (the "CERTIFICATE DISTRIBUTION ACCOUNT"), bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Certificate Distribution Account and in all
proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholders. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Account, the Owner
Trustee (or the Trust Depositor on behalf of the Owner Trustee, if the
Certificate Distribution Account is not then held by the Owner Trustee or an
Affiliate thereof) shall within ten Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may consent) establish a
new Certificate Distribution Account as an Eligible Account and shall transfer
any cash and/or any investments to such new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee will distribute to
Certificateholders, on a pro rata basis, amounts deposited in the Certificate
Distribution Account pursuant to Section 7.05 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement or statements provided to the Owner Trustee by
the Servicer pursuant to Section 9.06 of the Sale and Servicing Agreement with
respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocation of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Owners sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed
with respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Owner Trustee may in its sole
discretion withhold such amounts in accordance with the paragraph (c).
SECTION 5.03. METHOD OF PAYMENT. Subject to Section 9.01(c) respecting
the final payment upon retirement of each Certificate, distributions required to
be made to each Certificateholder of record on the related Record Date shall be
made by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register the amount to be distributed to such
Certificateholder pursuant to such Holder's Certificates.
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, OWNERS,
THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis
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and the accrual method of accounting, (b) deliver to each Owner, as may be
required by the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1) to enable each Owner to prepare its
federal and state income tax returns, (c) file such tax returns relating to the
Trust (including a partnership information return, IRS Form 1065) and make such
elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.02(c) with respect to income or distributions to
Owners. The Owner Trustee shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Contracts. The Owner Trustee shall not make the election provided under
Section 754 or Section 761 of the Code.
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Trust Depositor shall sign on behalf of the Trust the tax returns
of the Trust.
(b) The Trust Depositor shall be designated the "TAX MATTERS PARTNER" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed 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, as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Transaction Documents. The Owner Trustee is further
authorized form time to time to take such action as the Administrator recommends
with respect to the Transaction Documents.
SECTION 6.02. GENERAL DUTIES. Subject to the provisions and limitations
of Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge (or cause to be discharged through the Administrator all of its
responsibilities pursuant to the terms of this Agreement and the Transaction
Documents to which the Trust is a party and to administer the Trust in the
interest of the Owners, subject to the Transaction Documents and in accordance
with the provisions of this Agreement. Without limiting the foregoing, the
Owner Trustee shall on behalf of the Trust file and prove any claim or claims
that may exist against Eaglemark in connection with any claims paying procedure
as part of an insolvency or receivership proceeding involving Eaglemark.
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 has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Transaction Document, and the Owner Trustee shall not be
held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article Four, in accordance with the terms of the
Transaction Documents the Owners may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any other 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 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 under
any other Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the Owners
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Owners received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement and the
other Transaction Documents, as it shall deem to be in the best interests of the
Owners, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the applicability
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 in
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Owners
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting
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in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Transaction
Documents, as it shall deem to be in the best interests of the Owners, and shall
have no liability to any Person for such action or inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; 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 to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Estate that result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of the Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the other Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for federal or state
income tax purposes. The Owners shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
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ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder
or under any other Transaction Document under any circumstances, except (i) for
its own willful misconduct or negligence or (ii) in the case of the inaccuracy
of any representation or warranty contained in Section 7.03 expressly made by
the Owner Trustee. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Administrator or any Owner;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate, or for or in
respect of the validity or sufficiency of the Transaction Documents, other
than the certificate of authentication on the Trust Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Owner, other than as expressly
provided for herein or expressly agreed to in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee
or the Servicer under any of the Transaction Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Transaction
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Servicer, or the Trust Depositor under the Sale and Servicing Agreement;
and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by the Agreement, 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 Owners, unless such Owners have offered
to the Owner Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any other Transaction
Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act.
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SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish to
the Owner 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 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Trust Depositor and the Owners that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution an delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
bylaws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound or
result in the creation or imposition of any lien, charge or encumbrance on
the Trust Estate resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the other
Transaction Documents.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into by any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not
be liable for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel, accountants
or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article Seven, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Transaction
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES, NOTES OR
CONTRACTS. The recitals contained herein and in the Trust Certificates (other
than the signature and countersignature of the Owner Trustee and the
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certificate of authentication on the Trust Certificates) shall be taken as the
statements of the Trust Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Transaction Document or the Trust Certificates (other than the signature and
countersignature of the Owner Trustee and the certificate of authentication on
the Trust Certificates) or the Notes, or of any Contract or related documents.
The Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Contract, or
the perfection and priority of any security interest created by any Contract in
any Motorcycle or the maintenance of any such perfection and priority, or for or
with respect to the sufficiency of the Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Motorcycle; 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 of any intervening assignment; the completeness of any Contract;
the performance or enforcement of any Contract; the compliance by the Trust
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 representation; or any action of the Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Owner
Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Trust Depositor,
the Administrator, the Indenture Trustee and the Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon and which shall be paid consistent with Section 7.05(a)
of the Sale and Servicing Agreement. Additionally, the Owner Trustee shall be
entitled to be reimbursed by the Trust Depositor for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
SECTION 8.02. INDEMNIFICATION. The Trust Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns 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 or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Trust Depositor, which
approval shall not be unreasonably withheld.
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF AMENDED AND RESTATED TRUST AGREEMENT
SECTION 9.01. TERMINATION OF AMENDED AND RESTATED TRUST AGREEMENT.
(a) This Agreement (other than Article Eight) and the Trust shall
terminate and be of no further force or effect upon the earlier of (i) final
distribution by the Owner Trustee of all moneys or other property or proceeds of
the Trust Estate in accordance with terms of the Indenture, the Sale and
Servicing Agreement and Article Five, (ii) the expiration of 21 years from the
death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof and (iii) the time provided in Section 9.02. The bankruptcy,
liquidation, dissolution, death or incapacity of any Owner, other than the Trust
Depositor as described in Section 9.02, shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Owner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust Depositor,
nor any Holder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to Section 10.01 of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Trust Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Trust Certificates, the Paying Agent shall cause to be
distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.02.
(d) In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Trust Depositor.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 9.02. DISSOLUTION UPON BANKRUPTCY OF TRUST DEPOSITOR OR WITHDRAWAL
OR REMOVAL OF TRUST DEPOSITOR. In the event that an Insolvency Event shall
occur with respect to the Trust Depositor or the Trust Depositor shall withdraw,
liquidate or be removed from the Trust, this Agreement shall be terminated in
accordance with Section 9.01 90 days after the date of such event.
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ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $[ ]
and subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's. If
such corporation shall publish reports of condition at least annually pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator. Upon receiving such notice
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 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 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 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 if originally named as Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the 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 unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
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Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED, that such corporation shall be eligible pursuant to Section 10.01 and,
PROVIDED, FURTHER, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency.
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any financed Motorcycle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee 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
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
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;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-
trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct
-28-
of, affecting the liability of or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a copy thereof
given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
-29-
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) The Agreement may be amended by the Trust Depositor, and the Owner
Trustee, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; PROVIDED, HOWEVER, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the Trust
Depositor, and the Owner Trustee, with the consent of the Holders (as such term
is defined in the Indenture) of Notes evidencing not less than 66 2/3% of the
Outstanding Amount of the Notes, each voting as a separate Class and the
consent of the Holders of Trust Certificates evidencing not less than 66 2/3%
of the Certificate Balance (which consent of any Holder of a Note or Trust
Certificate given pursuant to this Section or pursuant to any other provision of
this Agreement shall be conclusive and binding on such Holders and on all future
Holder of such Note or Trust Certificate, as the case may be, issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made thereon), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that no such amendment shall increase
or reduce in any manner the amount of, or accelerate or delay the timing of, (i)
collections of payments on Contracts or distributions that shall be required to
be made for the benefit of the Noteholders or the Certificateholders or any
Interest Rate or the Pass-Through Rate or (ii) reduce the aforesaid percentage
of the Outstanding Amount of the Notes and the Certificate Balance required to
consent to any such amendment, without the consent of the Holders of all
outstanding Notes and Trust Certificates.
(c) Prior to the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent, together with a copy thereof, to the Indenture Trustee, the
Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders, Noteholders or the Indenture Trustee pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNERS. The Owners shall
not have legal title to any part of the Trust Estate. The Owners shall be
entitled to receive distributions with respect to their undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title
-30-
or interest of the Owners to and in their ownership interest in the Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Trust Depositor, the Owners, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Servicer or Seller:
Eaglemark, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trust Depositor:
Eaglemark Customer Funding Corporation-IV
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Administration
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Owner Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-31-
Attention: Corporate Trust Administration
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(v) If to Moody's:
Moody's Investor's Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Services, A
Division of The McGraw Hill Companies
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vii) If to the Initial Purchaser:
Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Securities Group
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Trust
Certificates or the rights of the Holders thereof.
SECTION 11.06. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Trust Depositor, and the Owner Trustee and their respective successors and
permitted assigns and each Owner and its successors and permitted assigns, all
as herein provided. Any request, notice,
-32-
direction, consent, waiver or other instrument or action by an Owner shall bind
the successors and assigns of such Owner.
SECTION 11.08. COVENANTS OF THE TRUST DEPOSITOR. In the event that (a)
the Certificate Balance shall be reduced by Realized Losses and (b) any
litigation with claims in excess of $1,000,000 to which the Trust Depositor is a
party which shall be reasonably likely to result in a material judgment against
the Trust Depositor that the Trust Depositor will not be able to satisfy shall
be commenced, during the period beginning immediately following the commencement
of such litigation and continuing until such litigation is dismissed or
otherwise terminated (and, if such litigation has resulted in a final judgment
against the Trust Depositor, such judgment has been satisfied), the Trust
Depositor shall not pay any dividend to the Servicer, or make any distribution
on or in respect of its capital stock to the Servicer, or repay the principal
amount of any indebtedness of the Trust Depositor held by the Servicer, unless
(i) after giving effect to such payment, distribution or repayment, the Trust
Depositor's liquid assets shall not be less than the amount of actual damages
claimed in such litigation or (ii) the Rating Agencies shall not downgrade the
then existing rating on the Certificates with respect to any such payment,
distribution or repayment. The Trust Depositor will not at any time institute
against the Trust any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Certificates, the Notes, the Trust Agreement or any of the Transaction
Documents.
SECTION 11.09. NO PETITION.
(a) The Trust Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States federal or state bankruptcy
or similar law in connection with any obligations relating to the Trust
Certificates, the Notes, this Agreement or any of the other Transaction
Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Trust
Depositor or the Trust, or join in any institution against the Trust Depositor,
or the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, this Agreement or any of the other
Transaction Documents.
SECTION 11.10. NO RECOURSE. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Trust Depositor,, the Servicer, the Seller, the
Administrator, the Owner Trustee, the Indenture Trustee or any of the respective
Affiliates and no recourse may be had against such parties or their assets,
except as my be expressly set forth or contemplated in this Agreement, the Trust
Certificates or the other Transaction Documents.
SECTION 11.11. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13. TRUST CERTIFICATE TRANSFER RESTRICTIONS. The Trust
Certificates may not be acquired by or for the account of a Benefit Plan. By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan nor will it hold
such Trust Certificate for the account of a Benefit Plan.
-33-
SECTION 11.14. TRUST DEPOSITOR PAYMENT OBLIGATION. The Trust Depositor
shall be responsible for payment of the Administrator's compensation pursuant to
Section 3 of the Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder.
-34-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV,
as Trust Depositor
By: ________________________________________________________
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
WILMINGTON TRUST COMPANY, as Owner Trustee
By: ________________________________________________________
Printed Name:_______________________________________
Title:______________________________________________
-35-
EXHIBIT A
CERTIFICATE OF TRUST OF
HARLEY-DAVIDSON EAGLEMARK OWNER TRUST ______
This Certificate of Trust of Harley-Davidson Eaglemark Owner Trust 1997-1
(the "TRUST"), dated _____________, is being duly executed and filed by
Wilmington Trust Company, a Delaware corporation, as Owner Trustee, to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE, Section 3801
ET SEQ.).
1. NAME. The name of the business trust formed hereby is Harley-Davidson
Eaglemark Owner Trust 1997-1.
2. DELAWARE TRUSTEE. The name and business address of the Owner Trustee
of the Trust in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: ______________________________________________
Printed Name:___________________________
Title:__________________________________
A-1
EXHIBIT B
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE
EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT AND INDENTURE REFERRED TO
HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV, EAGLEMARK, INC. OR ANY AFFILIATE
THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE AMENDED AND RESTATED TRUST
AGREEMENT. THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN UNLESS THE CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST
AGREEMENT HAVE BEEN COMPLIED WITH.
[TO BE INSERTED ON COMPANY CERTIFICATE--
THIS CERTIFICATE IS NON-TRANSFERABLE]
HARLEY-DAVIDSON EAGLEMARK OWNER TRUST 1997-1 CERTIFICATE
NO. ___________ Initial Trust Certificate
Principal Balance $______________
Fractional Interest _________%
THIS CERTIFIES THAT _____________ is the registered owner of equity $______
_____ nonassessable, fully-paid, fractional undivided interest in the
Harley-Davidson Eaglemark Owner Trust 1997-1 (the "TRUST") formed by Eaglemark
Customer Funding Corporation-IV, a Nevada corporation (the "TRUST DEPOSITOR").
The Trust was created pursuant to a Amended and Restated Trust Agreement,
dated as of April 1, 1997 (as amended and supplemented from time to time, the
"AMENDED AND RESTATED TRUST AGREEMENT"), among Eaglemark Customer Funding
Corporation-IV, as Trust Depositor (the "TRUST DEPOSITOR"), Eaglemark, Inc. (the
"SELLER") and Wilmington Trust Company, as owner trustee (the "OWNER TRUSTEE"),
a summary of certain of the pertinent provisions of which is set forth below.
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in (i) the Amended and Restated Trust
Agreement, (ii) the Sale and Servicing Agreement, dated as of April 1, 1997 (the
"SALE AND SERVICING AGREEMENT"), among the Trust, Eaglemark Customer Funding
Corporation-IV, as depositor (the "TRUST DEPOSITOR"), Eaglemark, Inc.
("EAGLEMARK"), as Servicer (in such capacity, the "SERVICER") and ▇▇▇▇▇▇ Trust
and Savings Bank, as Indenture Trustee (the "Indenture Trustee") or (iii) the
Indenture, dated as of April 1, 1997 (the "INDENTURE"), between the Trust and
the Indenture Trustee.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "6.85% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED CERTIFICATES"
(the "TRUST CERTIFICATES"). Also issued under the Indenture are two classes of
notes designated as "6.00% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES,
CLASS A-1" and "6.35% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES,
CLASS A-2" (collectively, the "NOTES"). This Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Amended and
Restated Trust Agreement, to which Amended and Restated Trust Agreement the
Holder of this Trust Certificate by virtue of its acceptance hereof assents and
by which such Holder is bound. The property of the Trust includes, among other
things, (i) all the right, title and interest of the Trust Depositor in and to
the Initial Contracts listed on the initial List of Contracts delivered on the
Closing Date (including, without limitation, all security interests and all
rights to receive payments which are collected pursuant thereto on or after the
Initial Cutoff Date, including any liquidation proceeds therefrom, but excluding
any
B-1
rights to receive payments which were collected pursuant thereto prior to the
Initial Cutoff Date), (ii) all rights of the Trust Depositor under any physical
damage or other individual insurance policy (and rights under a "FORCED PLACED"
policy, if any) relating to any such Contract, an Obligor or a Motorcycle
securing such Contract, (iii) all security interests in each such Motorcycle,
(iv) all documents contained in the related Contract Files, (v) all rights (but
not the obligations) of the Trust Depositor under any related motorcycle dealer
agreements between dealers (i.e., the originators of such Contracts) and the
Trust Depositor, (vi) all rights of the Trust Depositor in the Lockbox, the
Lockbox Account and related Lockbox Agreement to the extent they relate to such
Contracts, (vii) all rights (but not the obligations) of the Trust Depositor
under the Transfer and Sale Agreement, including but not limited to the Trust
Depositor's rights under Article V thereof, (viii) the remittances, deposits and
payments made into the Trust Accounts from time to time and amounts in the Trust
Accounts from time to time (and any investments of such amounts), and (ix) all
proceeds and products of the foregoing (the property in clauses (i)-(viii)
above.
Under the Amended and Restated Trust Agreement, there will be distributed
on the fifteenth day of each month or if such day is not a Business Day the next
succeeding Business Day commencing May 15, 1997 (each, a "DISTRIBUTION DATE"),
commencing on May 15, 1997 and ending no later than the Distribution Date in
April 2001 to the person in whose name this Trust Certificate is registered at
the close of business on the last calendar day immediately preceding the related
Distribution Date or if Definitive Trust Certificates are issued, the 1st day of
the immediately preceding calendar month (each, a "RECORD DATE"), such
Certificateholder's fractional undivided interest in the amount to be
distributed to Certificateholders on such Distribution Date.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer, the Trust Depositor, Owner
Trustee, Indenture Trustee and the Certificateholders that, for purposes of
federal income, state and local income and single business tax and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholders (including the Trust Depositor) will be treated as partners
in that partnership. The Trust Depositor and the other Certificateholders, by
acceptance of a Trust Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Trust Certificates for such tax purposes
as partnership interests in the Trust and the Certificateholders (including the
Trust Depositor) as partners in that partnership.
Each Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the Trust
Depositor, or join in any institution against the Trust or the Trust Depositor,
Eaglemark or the Servicer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, the Amended and
Restated Trust Agreement or any of the other Transaction Documents.
Distributions on this Trust Certificate will be made as provided in the
Amended and Restated Trust Agreement by the Owner Trustee or its Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Trust Certificate or the
making of any notation hereon, except that with respect to Trust Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Except as otherwise provided in the Amended and Restated Trust
Agreement and notwithstanding the above, the final distribution on this Trust
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this Trust
Certificate at the office or agency maintained for that purpose by the Owner
Trustee in the City of Wilmington, Delaware.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
B-2
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Amended
and Restated Trust Agreement or any other Transaction Document or be valid for
any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an interest
in the Trust Depositor, Eaglemark, as the Seller or Servicer, the Owner Trustee,
the Indenture Trustee or any of their respective Affiliates and no recourse may
be had against such parties or their assets, except as expressly set forth or
contemplated herein or in the Amended and Restated Trust Agreement or the other
Transaction Documents. In addition, this Trust Certificate is not guaranteed by
any governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Contracts and certain
other amounts, in each case as more specifically set forth herein and in the
Sale and Servicing Agreement. A copy of each of the Sale and Servicing
Agreement and the Amended and Restated Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor.
The Amended and Restated Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Certificateholders
under the Amended and Restated Trust Agreement at any time by the Trust
Depositor and the Owner Trustee with the consent of the Holders of the Trust
Certificates and the Notes, each voting as a separate class, evidencing not less
than 66 2/3% of the Certificate Balance and 66 2/3% of the Outstanding Amount of
the Notes. Any such consent by the Holder of this Trust Certificate shall be
conclusive and binding on such Holder and on all future Holders of this Trust
Certificate and of any Trust Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent is
made upon this Trust Certificate. The Amended and Restated Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Trust Certificates.
As provided in the Amended and Restated Trust Agreement and subject to
certain limitations therein set forth, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in Wilmington, Delaware,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar in Chicago, Illinois executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Trust Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Amended and Restated Trust Agreement is ▇▇▇▇▇▇ Trust and Savings Bank.
Except as provided in the Amended and Restated Trust Agreement, the Trust
Certificates are issuable only as registered Trust Certificates without coupons
in denominations of $500,000 and in integral multiples of $1,000 in excess
thereof. As provided in the Amended and Restated Trust Agreement and subject to
certain limitations therein set forth, Trust Certificates are exchangeable for
new Trust Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Trust Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Amended and Restated
Trust Agreement and the Trust created thereby shall terminate upon the payment
to Certificateholders of all amounts required to be paid to them pursuant to the
Amended and Restated Trust Agreement and the Sale and Servicing Agreement and
the deposition of all property held as part of the Trust Estate. The Trust
Depositor may at its option purchase the Trust Estate at a price specified in
the Sale and Servicing Agreement, and such purchase of the Contracts and other
property of the Trust will
B-5
affect early retirement of the Trust Certificates; however, such right of
purchase is exercisable only as of any Distribution Date on which the Pool
Balance has declined to less than 10% of the Initial Pool Balance.
The Trust Certificates may not be acquired by a Benefit Plan. By accepting
and holding this Trust Certificate, the Holder hereof or, in the case of Book-
Entry Trust Certificate, by accepting a beneficial interest in this Trust
Certificate, the related Certificate Owner, shall be deemed to have represented
and warranted that it is not a Benefit Plan and is not acquiring this Trust
Certificate or an interest therein for the account of such an entity.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly executed.
Dated: ___________ HARLEY-DAVIDSON EAGLEMARK OWNER TRUST _______
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By: ________________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Amended and Restated Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity but solely not in its individual capacity
as Owner Trustee but or solely as Owner Trustee
By: ______________________, as
By: __________________________, Authorized Signatory
Authorized Signatory
By: __________________________
Authorized Signatory
B-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
to transfer said Trust Certificate on the books of the Certificate Registrar,
will full power of substitution in the premises.
Dated: _________________
Signature Guaranteed:
______________________________________ _____________________________________
NOTICE: Signature(s) must be NOTICE: The signature to this
guaranteed by an eligible guarantor assignment must correspond
institution. with the name of the registered
owner as it appears on the face
of the within Trust Certificate
in every particular, without
alteration or enlargement or any
change whatever.
B-8