Exhibit 4.1
AMENDED AND RESTATED TRUST AGREEMENT
between
DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION,
as Depositor,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Owner Trustee
Dated as of March 1, 1999
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms.................................1
SECTION 1.02. Other Definitional Provisions.....................1
ARTICLE II
Organization
SECTION 2.01. Name..............................................2
SECTION 2.02. Office............................................2
SECTION 2.03. Purposes and Powers...............................2
SECTION 2.04. Appointment of Owner Trustee......................3
SECTION 2.05. Initial Capital Contribution of Owner
Trust Estate......................................3
SECTION 2.06. Declaration of Trust..............................3
SECTION 2.07. Liability of Owners...............................3
SECTION 2.08. Title to Trust Property...........................3
SECTION 2.09. Situs of Trust....................................4
SECTION 2.10. Representations and Warranties of the Depositor...4
SECTION 2.11. [Reserved]........................................5
SECTION 2.12. Federal Income Tax Allocations; Tax Treatment.....5
SECTION 2.13. Administrative Duties.............................6
SECTION 2.14. [Reserved]........................................7
ARTICLE III
Residual Interest
SECTION 3.01. Ownership.........................................7
SECTION 3.02. Maintenance of Office or Agency...................7
ARTICLE IV
Actions by Owner Trustee
SECTION 4.01. Prior Notice to the Residual Interestholder
with Respect to Certain Matters............8
SECTION 4.02. Action by the Residual Interestholder with
Respect to Certain Matters.................8
SECTION 4.03. [Reserved]........................................8
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SECTION 4.04. Restrictions on the Residual
Interestholder's Power.....................9
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Residual Interest Distribution Account............9
SECTION 5.02. Application of Trust Funds........................9
SECTION 5.03. Method of Payment................................10
SECTION 5.04. No Segregation of Moneys; No Interest............10
SECTION 5.05. Accounting and Reports to the Residual
Interestholder, Internal
Revenue Service and Others................10
SECTION 5.06. Signature on Returns; Tax Matters Partner........11
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01. General Authority................................11
SECTION 6.02. General Duties...................................11
SECTION 6.03. Action upon Instruction..........................11
SECTION 6.04. No Duties Except as Specified in this
Agreement or in Instructions..............12
SECTION 6.05. No Action Except Under Specified Documents
or Instructions...........................13
SECTION 6.06. Restrictions.....................................13
ARTICLE VII
Concerning Owner Trustee
SECTION 7.01. Acceptance of Trusts and Duties..................13
SECTION 7.02. Furnishing of Documents..........................14
SECTION 7.03. Representations and Warranties...................14
SECTION 7.04. Reliance; Advice of Counsel......................15
SECTION 7.05. Not Acting in Individual Capacity................16
SECTION 7.06. Owner Trustee Not Liable for Residual
Interest or Receivables...................16
SECTION 7.07. Owner Trustee May Own Notes......................16
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses................17
SECTION 8.02. Indemnification..................................17
SECTION 8.03. Payments to Owner Trustee........................17
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ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement...................18
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner Trustee......18
SECTION 10.02. Resignation or Removal of Owner Trustee.........18
SECTION 10.03. Successor Owner Trustee.........................19
SECTION 10.04. Merger or Consolidation of Owner Trustee........19
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee...19
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments......................20
SECTION 11.02. No Legal Title to Owner Trust Estate in
Residual Interestholder...................22
SECTION 11.03. Limitations on Rights of Others.................22
SECTION 11.04. Notices.........................................22
SECTION 11.05. Severability....................................22
SECTION 11.06. Separate Counterparts...........................22
SECTION 11.07. Successors and Assigns..........................23
SECTION 11.08. Covenants of the Depositor......................23
SECTION 11.09. No Petition.....................................23
SECTION 11.10. No Recourse.....................................23
SECTION 11.11. Headings........................................23
SECTION 11.12. GOVERNING LAW...................................23
SECTION 11.13. Benefit Plan.....................................24
SECTION 11.14. Submission to Jurisdiction......................24
iii
AMENDED AND RESTATED TRUST AGREEMENT dated as of March 1, 1999 (this
"Agreement"), between DEUTSCHE RECREATIONAL ASSET FUNDING CORPORATION, a Nevada
corporation, as depositor (the "Depositor"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association, as owner trustee (the
"Owner Trustee"). This Agreement amends and restates the Trust Agreement dated
as of February 25, 1999 between the parties hereto (the "Original Trust
Agreement").
ARTICLE I
Definitions
SECTION 1.01. Capitalized Terms. For all purposes of this Agreement,
capitalized terms used herein and defined in Appendix A to the Transfer and
Servicing Agreement shall have the meanings set forth in such Appendix A. The
"Transfer and Servicing Agreement" means the Transfer and Servicing Agreement,
dated the same date as this Agreement, among Distribution Financial Services RV
Trust 1999-1 (the "Trust"), the Depositor, and Deutsche Financial Services
Corporation, as Servicer.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Article and Section
references contained in this Agreement are references to Articles and Sections
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
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(e) Any agreement, instrument or statute defined or referred to herein
(including the Transfer and Servicing Agreement referred to above) or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, amended and restated or
otherwise modified and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
SECTION 2.01. Name. The trust created under the Original Trust
Agreement shall be known as "Distribution Financial Services RV Trust 1999-1,"
in which name the Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be
sued.
SECTION 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address outside of
New York as the Owner Trustee may designate by written notice to the Residual
Interestholder and the Depositor.
SECTION 2.03. Purposes and Powers.
(a) The purpose of the Trust is to engage in the following
activities:
(i) to acquire the Receivables and other Depositor
Conveyed Property pursuant to the Transfer and Servicing Agreement;
(ii) to issue the Notes pursuant to the Indenture and to
sell the Notes;
(iii) with the proceeds of the sale of the Notes to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor;
(iv) to Grant the Trust Estate pursuant to the Indenture
and to hold, manage and distribute to the Residual Interestholder
pursuant to the terms of the Transfer and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to
the Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
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(vi) 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
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Residual Interestholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents.
SECTION 2.04. Appointment of Owner Trustee. The Depositor hereby
confirms the appointment of 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.
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate.
Pursuant to the Original Trust Agreement, the Depositor assigned, transferred,
conveyed and set over to the Owner Trustee, as of the date thereof, the sum of
$1. The Owner Trustee hereby acknowledges receipt in trust from the Depositor,
as of the date thereof, of the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Residual Interest
Distribution Account. The Depositor shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Residual
Interestholder, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
trust under the common law of the State of New York and that this Agreement
constitute the governing instrument of such trust.
SECTION 2.07. Liability of Owners. The Residual Interestholder shall
not have any personal liability for any liability or obligation of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust shall be located and
administered in the State of Minnesota. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall
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be located in the State of Minnesota. The Trust shall not have any employees in
any state other than Minnesota; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Minnesota. Payments shall be received by the Trust only in
Minnesota, and payments shall be made by the Trust only from Minnesota. The only
office of the Trust shall be determined in accordance with Section 2.02.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Nevada,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to transfer and assign the property to be
transferred and assigned to and deposited with the Trust and the
Depositor has duly authorized such transfer and assignment and deposit
to the Trust by all necessary corporate action; and the execution,
delivery and performance of this Agreement have been duly authorized by
the Depositor by all necessary corporate action.
(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, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(v) To the Depositor's best knowledge, there are no
proceedings or investigations pending or threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties: (A) asserting the invalidity of this Agreement, (B) seeking
to prevent the
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consummation of any of the transactions contemplated by this Agreement
or (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement.
SECTION 2.11. [Reserved]
SECTION 2.12. Federal Income Tax Allocations; Tax Treatment.
(a) If the Residual Interest is held by more than one Person or the
Trust is recharacterized as a separate entity the net income of the Trust for
any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall be
allocated:
(1) first, to the holder(s) of interests in the Residual
Interest as of the close of business on the last day of such month, in
proportion to their interests in the Residual Interest, any amounts of
income payable in respect of the Residual Interest for such month; and
(2) second, to the holder(s) of interests in the Residual
Interest, and to other holders of interests in the Reserve Account, to
the extent of any remaining net income, in accordance with their
respective interest therein.
If the net income of the Trust for any month is insufficient for the allocations
described in subclause (a)(1), subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust, if any, for any month as determined for
federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor or
other holders of interests in the Reserve Account to the extent the Depositor or
other holders of interests in the Reserve Account are reasonably expected to
bear the economic burden of such net losses, and any remaining net losses shall
be allocated to any other holder of an interest in the Residual Interest as of
the close of business on the last day of such month in proportion to such
Person's interest in the Residual Interest on such day. The Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect the
economic income, gain or loss to the Depositor or other holders of interests in
the Reserve Account, or as otherwise required by the Code.
(b) All "excess nonrecourse liabilities" represented by all outstanding
Notes issued by the Trust, as well as the deductions attributable thereto, shall
be allocated one hundred percent to the Depositor in accordance with Treasury
Regulations section 1.752-3(a)(3). Notwithstanding any other provision of this
Agreement, if the Residual Interest is held solely by one Person or the Trust
has not been recharacterized as a separate entity, the application of clause (a)
and this clause (b) shall be disregarded.
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(c) It is the intent of the parties hereto that, solely for purposes of
federal income, state and local income, franchise and single business tax and
any other taxes measured in whole or in part by income, until the Residual
Interest is held by more than one Person or the Trust is recharacterized as a
separate entity, the Trust will be disregarded as an entity separate from its
beneficial owner and the Notes will be treated as debt. If the Residual Interest
is held by more than one Person or the Trust is recharacterized as a separate
entity, it is the intention of the parties hereto that, solely for purposes of
federal income, state and local income, franchise and single business tax and
any other taxes measured in whole or in part by income, the Trust shall be
treated as a partnership and the Residual Interestholder(s) and the Depositor
shall be treated as partners in that partnership with the assets of the
partnership being the Receivables and other assets held by the Trust, and the
Notes being debt of that partnership. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust shall file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes.
SECTION 2.13. Administrative Duties.
(a) Duties with Respect to the Specified Agreements. The Depositor
shall perform the duties of the Trust under the Indenture and the Note
Depository Agreement (collectively the "Specified Agreements"). In addition, the
Depositor shall consult with the Owner Trustee as the Depositor deems
appropriate regarding the duties of the Trust under the Specified Agreements.
The Depositor shall monitor the performance of the Trust's duties and shall
advise the Owner Trustee when action is necessary to comply with the Trust's
duties under the Specified Agreements. The Depositor shall prepare for execution
by the Owner Trustee or shall cause the preparation by other appropriate Persons
of all such documents, reports, filings, instruments, certificates and opinions
as it shall be the duty of the Trust to prepare, file or deliver pursuant to the
Specified Agreements. In furtherance of the foregoing, the Depositor shall take
all necessary action that is the duty of the Trust to take pursuant to Sections
3.04, 3.05, 3.06, 3.09, 3.14, 3.19, 6.08 and 7.03 of the Indenture.
(b) Duties with Respect to the Trust.
(i) In addition to the duties of the Depositor set forth in
the Basic Documents, but subject to the terms of the Basic Documents,
the Depositor shall perform such calculations and shall prepare for
execution by the Trust or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be
the duty of the Trust or the Owner Trustee to prepare, file or deliver
pursuant to state and federal tax and securities laws and shall take
all other appropriate action that it is the duty of the Trust or the
Owner Trustee to take pursuant to the Basic Documents relating to the
preparation and filing of tax returns, the furnishing of documents and
with respect to supplements and amendments of the Specified Agreements.
In accordance with the request of the Owner
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Trustee but subject to the terms of the Basic Documents, the Depositor
shall administer, perform or supervise the performance of such other
activities in connection with the Basic Documents as are not covered by
any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the
Depositor.
(ii) Notwithstanding anything in this Agreement or any of the
other Basic Documents to the contrary, the Depositor shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Trust's payments (or allocations
of income) to the Residual Interestholder. Any such notice shall be in
writing and specify the amount of any withholding tax required to be
withheld by the Owner Trustee.
(c) Records. The Depositor shall maintain appropriate books of account,
including capital accounts, and records relating to the Trust, which books of
account and records shall be accessible for inspection by the Owner Trustee at
any time during normal business hours.
(d) Additional Information to be Furnished to the Trust. The Depositor
shall furnish to the Owner Trustee from time to time such additional information
regarding the Trust or the Basic Documents as the Owner Trustee shall reasonably
request.
SECTION 2.14. [Reserved].
ARTICLE III
Residual Interest
SECTION 3.01. Ownership. The Residual Interest shall represent an
undivided ownership interest in the Trust. The Depositor shall be the only
holder of the Residual Interest. The Residual Interest shall not be
certificated, shall not have a principal balance and shall not bear interest.
The Depositor shall not sell, assign, pledge or otherwise transfer the Residual
Interest. Any amendment to this Agreement which would change the foregoing shall
be subject to the condition that the Depositor shall retain at least 1/10th of
1% of the Residual Interest.
SECTION 3.02. Maintenance of Office or Agency. The Owner Trustee
shall maintain an office or offices or agency or agencies outside of New York
where notices and demands to or upon the Owner Trustee in respect of the
Residual Interest and the Basic Documents may be served. The Owner Trustee
initially designates the Corporate Trust Office of the Owner Trustee
as its office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor, the Servicer and the Indenture Trustee of any change in
the location of any such office or agency.
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ARTICLE IV
Actions by Owner Trustee
SECTION 4.01. Prior Notice to the Residual Interestholder with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee
shall not take action unless, at least 30 days before the taking of such action,
the Owner Trustee shall have notified the Residual Interestholder in writing of
the proposed action and the Residual Interestholder shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
the Residual Interestholder has 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 collection of the Receivables) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits brought in
connection with collection of the Receivables);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the Residual
Interestholder; or
(d) the appointment pursuant to the Indenture of a successor Note
Registrar or Indenture Trustee, or the consent to the assignment by the Note
Registrar or Indenture Trustee of its obligations under the Indenture.
SECTION 4.02. Action by the Residual Interestholder with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
direction of the Residual Interestholder, to remove the Servicer under the
Transfer and Servicing Agreement pursuant to Section 8.01 thereof or, except as
expressly provided in the Basic Documents, to sell the Receivables after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Residual Interestholder.
SECTION 4.03. [Reserved].
SECTION 4.04. Restrictions on the Residual Interestholder's Power. The
Residual Interestholder 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
other Basic Documents or would be contrary to Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
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ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Residual Interest Distribution Account. The Owner
Trustee, for the benefit of the Residual Interestholder, shall establish and
maintain in the name of the Trust an Eligible Deposit Account (the "Residual
Interest Distribution Account" or "Residual Interestholder Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Residual Interestholder.
The Owner Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Residual Interest Distribution Account and in
all proceeds thereof. Except as otherwise provided herein or in the Transfer and
Servicing Agreement, the Residual Interest Distribution Account shall be under
the sole dominion and control of the Owner Trustee for the benefit of the
Residual Interestholder. If, at any time, the Residual Interest Distribution
Account ceases to be an Eligible Deposit Account, the Owner Trustee (or the
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 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Residual Interest
Distribution Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments to such new Residual Interest Distribution Account.
SECTION 5.02. Application of Trust Funds.
(a) On each Monthly Payment Date, the Owner Trustee shall distribute to
the Residual Interestholder, amounts, if any received from the Indenture Trustee
pursuant to Section 5.06(b) of the Transfer and Servicing Agreement with respect
to such Monthly Payment Date or received pursuant to Section 5.04 of the
Indenture.
(b) On each Monthly Payment Date, the Owner Trustee shall send to the
Residual Interestholder the statement or statements provided to the Owner
Trustee by the Servicer pursuant to Section 5.08 of the Transfer and Servicing
Agreement with respect to such Monthly Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Residual Interestholder, such tax shall
reduce the amount otherwise distributable to the Residual Interestholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the Residual
Interestholder's 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 Residual Interestholder
shall be treated as cash distributed to the Residual Interestholder at the
9
time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S. Residual
Interestholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this paragraph (c).
SECTION 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Residual Interestholder on any Monthly
Payment Date shall be made to the Residual Interestholder either by wire
transfer, in immediately available funds, to the account of such Residual
Interestholder at a bank or other entity having appropriate facilities therefor,
if the Residual Interestholder shall have provided to the Owner Trustee
appropriate written instructions at least five Business Days prior to such
Monthly Payment Date or, if not, by check mailed to the Residual Interestholder
at the address of the Residual Interestholder determined in accordance with
Section 11.04.
SECTION 5.04. No Segregation of Moneys; No Interest. Moneys received by
the Owner Trustee hereunder need not be segregated in any manner except to the
extent required by law or the Basic Documents 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 Residual Interestholder,
Internal Revenue Service and Others. Subject to Section 2.12, the Depositor
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis and the accrual method of accounting, (b) prepare and
deliver to the Residual Interestholder during such calendar year, as may be
required by the Code and applicable Treasury Regulations, and not later than the
latest date permitted by law, such information as may be required (including
Schedule K-1) to enable the Residual Interestholder to prepare its federal and
state income tax returns, (c) prepare and 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 disregarded entity if there is
only one Residual Interestholder, or, if there is more than one Residual
Interestholder, as a partnership for federal income tax purposes, (d) cause such
tax returns to be signed in the manner required by law and (e) collect or cause
to be collected any withholding tax as described in and in accordance with
Section 5.02(c) with respect to income or distributions to the Residual
Interestholder. The Owner Trustee shall elect under Section 1278 of the Code to
include in income currently any market discount that accrues with respect to the
Receivables. The Owner Trustee shall not make the election provided under
Section 754 of the Code.
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SECTION 5.06. Signature on Returns; Tax Matters Partner.
(a) Subject to Section 2.12, the Owner Trustee shall sign on behalf of
the Trust the tax returns of the Trust, unless applicable law requires the
Depositor to sign such documents, in which case such documents shall be signed
by the Depositor.
(b) The 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.
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and, in
each case, in such form as the Depositor shall approve, 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 Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Depositor recommends with respect to the Basic Documents.
SECTION 6.02. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents to which the Trust is
a party and to administer the Trust in the interest of the Residual
Interestholder, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties under the Basic Documents to the
extent the Depositor has agreed to perform them pursuant to Section 2.13 of this
Agreement.
SECTION 6.03. Action upon Instruction.
(a) Subject to Article IV and to the other terms of the Basic
Documents, the Residual Interestholder may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be exercised at
any time by written instruction of the Residual Interestholder pursuant to
Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law.
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(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 Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Residual
Interestholder 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 Residual Interestholder, the Owner Trustee shall not
be liable on account of such action to any Person. If the Owner Trustee shall
not have received appropriate instruction within 10 days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this Agreement
or the other Basic Documents, as it shall deem to be in the best interests of
the Residual Interestholder, and shall have no liability to any Person for such
action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Residual
Interestholder requesting instruction and, to the extent that the Owner Trustee
acts or refrains from acting in good faith in accordance with any such
instruction from the Residual Interestholder, the Owner Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Residual Interestholder, 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 Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement, any other Basic Document to which the Trust is a party or in
any written instruction received by the Owner Trustee as contemplated by Section
6.03; and no implied duties or obligations shall be read into this Agreement or
any other Basic Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to prepare or file any
Securities and Exchange Commission filing for the Trust or to record this
Agreement or any other Basic Document. The Owner Trustee nevertheless agrees
that it shall, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of
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the Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.
SECTION 6.05. 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 Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any instruction delivered to the Owner Trustee as
contemplated by Section 6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal income tax purposes.
The Residual Interestholder shall not direct the Owner Trustee to take action
that would violate the provisions of this Section.
ARTICLE VII
Concerning 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 Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic 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 Trust 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
Residual Interestholder.
(c) No provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it.
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(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes.
(e) The Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Noteholder or to the
Residual Interestholder, other than as expressly provided for herein or
expressly agreed to in the Basic Documents.
(f) The Owner Trustee shall not be liable for the default or misconduct
of the Depositor, the Indenture Trustee or the Servicer under any of the Basic
Documents or otherwise, and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or the
other Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture or the Servicer or the Depositor under the Transfer and
Servicing Agreement.
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Basic Document, at the request, order or direction of the
Residual Interestholder, unless the Residual Interestholder has 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 Basic 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.
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Residual Interestholder, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 7.03. Representations and Warranties. The Owner Trustee
hereby represents and warrants to the Depositor, for the benefit of the Residual
Interestholder, that:
(a) The Owner Trustee is a national banking association duly organized
and validly existing in good standing under the laws of the United States. The
Owner Trustee has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and each other Basic Document to
which it is a party.
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(b) The Owner Trustee has taken all action necessary to authorize the
execution and delivery by it of this Agreement and each of the other Basic
Documents to which it is a party, and this Agreement and each of the other Basic
Documents to which it is a party has been executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement and each
of the other Basic Documents to which it is a party on its behalf.
(c) This Agreement and each of the other Basic Documents to which it is
a party constitutes a legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
(d) Neither the execution or the delivery by the Owner Trustee of this
Agreement and each of the other Basic Documents to which it is a party, nor the
consummation by it of the transactions contemplated hereby and thereby, nor
compliance by it with any of the terms or provisions hereof and thereof, shall
contravene any federal or state 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.
(e) The Owner Trustee has received the Schedule of Receivables.
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
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
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Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this Agreement or
any other Basic Document.
SECTION 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Norwest Bank
Minnesota, National Association, 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 Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable for Residual Interest or
Receivables. The recitals contained herein shall be taken as the statements of
the 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, of any other Basic Document or of the
Residual Interest or the Notes, or of any Receivable or related documents. The
Owner Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to the Residual Interestholder under
this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Vehicle; the
existence and enforceability of any insurance thereon; the existence and
contents of any Receivable on any computer or other record thereof; the validity
of the transfer of any Receivable to the Trust or of any intervening transfer;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty or
representation made under any other Basic Document or in any related document or
the accuracy of any such warranty or representation, or any action of the
Indenture Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee.
SECTION 7.07. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Depositor, the 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 VIII
Compensation of Owner Trustee
SECTION 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder reasonable expenses
incurred before the date hereof and such fees as have been separately agreed
upon before the date hereof between the Depositor and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Depositor for its other
reasonable expenses hereunder incurred after the date hereof, 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 Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the 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 any event of any claim, action or proceeding for which
indemnity shall be sought pursuant to this Section, the Owner Trustee's choice
of legal counsel shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld.
SECTION 8.03. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution by
the Owner Trustee of all moneys or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture,
17
the Transfer and Servicing Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of the Residual Interestholder shall not (x)
operate to terminate this Agreement or the Trust or (y) entitle the Residual
Interestholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Owner Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), none of the Depositor or the
Residual Interestholder shall be entitled to revoke or terminate the Trust.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a bank authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) time deposits that are rated at least A-1
by Standard & Poor's and F1+ by Fitch. If such bank 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 bank shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Depositor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Owner Trustee. If the Depositor
shall remove the Owner Trustee under the authority of the
18
immediately preceding sentence, the Depositor shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositor shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Depositor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective, and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Depositor shall mail notice thereof to the Indenture Trustee,
the Noteholders and the Rating Agencies. If the Depositor shall fail to mail
such notice within 10 days after acceptance of such appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Depositor.
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
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shall be eligible pursuant to Section 10.01 and, provided, further, that the
Owner Trustee shall mail notice of such merger or consolidation to the Rating
Agencies.
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 Owner Trust Estate or any Financed Vehicle may at the time be located,
the Depositor 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 Depositor 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 Owner 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
Depositor and the Owner Trustee may consider necessary or desirable. If the
Depositor 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 Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(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 Depositor 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
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acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This Agreement may be
amended from time to time by the Depositor and the Owner Trustee, with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Residual Interestholder, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Residual Interestholder; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder or Residual Interestholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, without the consent of any of the Noteholders or the
Residual Interestholder, in order to enable all or a portion of the Trust to
qualify as a "financial asset securitization investment trust" under federal tax
laws and regulations (a "FASIT"), to permit a FASIT election to be made under
such laws and regulations and to make such modifications to this Agreement as
may be permitted by reason of the making of such election; provided that (i) the
Rating Agency Condition shall have been satisfied with respect thereto, (ii) an
Opinion of Counsel is rendered that such election will not have material adverse
consequences to any Noteholder or to the Residual Interestholder, and (iii) the
ability of the FASIT to add or remove assets shall be limited to the same extent
as "real estate mortgage investment conduits" ("REMICs") under applicable
federal tax laws and regulations.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Majority Noteholders and the consent of the Residual
Interestholder, for the purpose of adding any
21
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 Residual Interestholder; provided, however, that no such amendment shall:
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Residual
Interestholder; or (b) reduce the percentage of the Outstanding Amount of the
Notes required to consent to any such amendment to less than the percentage
contemplated by the definition of Majority Noteholders, without the consent of
the Holders of all the outstanding Notes.
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 Residual Interestholder, the Indenture Trustee and
each of the Rating Agencies.
It shall not be necessary for the consent of the Residual
Interestholder or the Noteholders pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Residual Interestholder provided for in
this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Residual Interestholder shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment that affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Owner Trustee shall be entitled to receive and conclusively rely upon
an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Issuer or the Owner
Trustee, as the case may be, have been satisfied.
The Owner Trustee shall comply with Section 3.07(g) of the Indenture
with respect to the amendments, modifications, supplements, terminations and
surrenders referred to therein.
SECTION 11.02. No Legal Title to Owner Trust Estate in Residual
Interestholder. The Residual Interestholder shall not have legal title to any
part of the Owner Trust Estate. The Residual Interestholder shall be entitled to
receive distributions with respect to its undivided ownership interest in the
Trust only in accordance with the terms of this Agreement and the other Basic
Documents. No transfer, by operation of law or otherwise, of any right, title or
interest of the Residual Interestholder to and in its undivided ownership
interest shall operate to
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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 Owner
Trust Estate.
SECTION 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Residual Interestholder and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.04. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee shall be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to Norwest Bank Minnesota, National
Association, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Services/Asset-Backed Administration; if to the Depositor or the
Residual Interestholder, addressed to Deutsche Recreational Asset Funding
Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Senior
Vice President/Treasurer or Chief Legal Counsel; or, as to each party, at such
other address as shall be designated by such party in a written notice to the
other party hereto.
SECTION 11.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor and its permitted assigns, the Owner Trustee and its successors and
the Residual Interestholder and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Residual Interestholder shall bind the successors
and assigns of the Residual Interestholder.
SECTION 11.08. Covenants of the Depositor. In the event that any
litigation with claims in excess of $1,000,000 to which the Depositor is a party
which shall be reasonably likely to result in a material judgment against the
Depositor that the Depositor shall not be able to satisfy shall be commenced by
the Residual Interestholder, during the period beginning nine
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months 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 Depositor, such judgment has been
satisfied), the Depositor shall not declare any dividend or make any other
distribution on or in respect of its shares to any of its equity holders, or
repay the principal amount of any indebtedness of the Depositor held by any
Affiliate of the Depositor, unless (i) after giving effect to such distribution
or repayment, the Depositor's liquid assets shall not be less than the amount of
actual damages claimed in such litigation or (ii) the Rating Agency Condition
shall have been satisfied with respect to any such distribution or repayment.
SECTION 11.09. No Petition. The Owner Trustee, by entering into this
Agreement, and each Noteholder and Note Owner, by accepting the benefits of this
Agreement, hereby covenant and agree that they shall not at any time, acquiesce,
petition or otherwise invoke or cause (or join with any other Person in
acquiescing, petitioning or otherwise invoking or causing) the Depositor or the
Trust to invoke the process of any court or government authority for the purpose
of commencing or sustaining a case against the Depositor or the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or the Trust or any substantial part of the
property of the Depositor or the Trust, or ordering the winding up or
liquidation of the affairs of the Depositor or the Trust.
SECTION 11.10. No Recourse. The Residual Interestholder acknowledges
that the Residual Interest represents an undivided ownership interest in the
Trust only and does not represent interests in or obligations of the Depositor,
the Transferor, DFS, the Servicer, the Owner Trustee, the Indenture Trustee or
any Affiliate thereof and no recourse may be had against such Persons or their
assets, except as may be expressly set forth or contemplated in this Agreement
or the Basic Documents.
SECTION 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, 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. Benefit Plan. The Residual Interestholder represents and
warrants that it is not a Benefit Plan. "Benefit Plan" means (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Code or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity.
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SECTION 11.14. Submission to Jurisdiction. Each of the parties
hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Basic Document or
for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address set forth in Section 11.04 or at
such other address notified to the other party to this Agreement
pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
DEUTSCHE RECREATIONAL ASSET FUNDING
CORPORATION, as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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