[Exhibit 4.1]
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[FORM OF TRUST AGREEMENT]
between
MITSUI VENDOR LEASING FUNDING CORP. II
as Trust Depositor,
and
________________________________________,
as Owner Trustee
Dated as of August 1, 1998
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Table of Contents
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms...........................................1
SECTION 1.02. Other Definitional Provisions...............................2
SECTION 1.03. Usage Of Terms..............................................2
SECTION 1.04. Section References..........................................2
SECTION 1.05. Accounting Terms............................................2
ARTICLE II
ORGANIZATION
SECTION 2.01. Name........................................................3
SECTION 2.02. Office......................................................3
SECTION 2.03. Purposes And Powers.........................................3
SECTION 2.04. Appointment Of Owner Trustee................................4
SECTION 2.05. Capital Contribution Of Owner Trust Estate..................4
SECTION 2.06. Declaration Of Trust........................................4
SECTION 2.07. Liability Of Trust Depositor................................4
SECTION 2.08. Title To Trust Property.....................................5
SECTION 2.09. Situs Of Trust..............................................5
SECTION 2.10. Representations And Warranties Of The Trust Depositor.......5
SECTION 2.11. Federal Income Tax Treatment................................6
ARTICLE III
[RESERVED]
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice To Trust Depositor With Respect
To Certain Matters........................................6
SECTION 4.02. Actions With Respect To Certain Matters.....................7
SECTION 4.03. Action By the Trust Depositor With Respect
To Bankruptcy.............................................7
SECTION 4.04. Restrictions On the Trust Depositor's and
the Administrator's Power.................................8
ARTICLE V
CERTAIN DUTIES
SECTION 5.01. [Reserved]..................................................8
SECTION 5.02. [Reserved]..................................................8
SECTION 5.03. [Reserved]..................................................8
SECTION 5.04. [Reserved]..................................................8
SECTION 5.05. The Internal Revenue Service And Others.....................8
SECTION 5.06. Signature On Returns; Tax Matters Partner...................8
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority...........................................9
SECTION 6.02. General Duties..............................................9
SECTION 6.03. Action Upon Instruction.....................................9
SECTION 6.04. No Duties Except As Specified In
This Agreement Or In Instructions........................11
SECTION 6.05. No Action Except Under Specified
Documents Or Instructions................................11
SECTION 6.06. Restrictions...............................................11
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance Of Trusts And Duties............................11
SECTION 7.02. Furnishing Of Documents....................................12
SECTION 7.03. Representations And Warranties.............................13
SECTION 7.04. Reliance; Advice Of Counsel................................13
SECTION 7.05. Not Acting In Individual Capacity..........................14
SECTION 7.06. Owner Trustee Not Liable For Notes Or Contracts............14
SECTION 7.07. Owner Trustee May Own Notes................................14
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees And Expenses..........................14
SECTION 8.02. Indemnification............................................15
SECTION 8.03. Payments To The Owner Trustee..............................15
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination Of Trust Agreement.............................15
SECTION 9.02. Dissolution Upon Bankruptcy Of Trust Depositor
Or Withdrawal Or Removal Of Trust Depositor..............16
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements For Owner Trustee.................16
SECTION 10.02. Resignation Or Removal Of Owner Trustee....................17
SECTION 10.03. Successor Owner Trustee....................................17
SECTION 10.04. Merger Or Consolidation Of Owner Trustee...................18
SECTION 10.05. Appointment Of Co-Trustee Or Separate Trustee..............18
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Supplements And Amendments.................................19
SECTION 11.02. No Legal Title To Trust Estate In the Trust Depositor......20
SECTION 11.03. Limitations On Rights Of Others............................20
SECTION 11.04. Notices....................................................20
SECTION 11.05. Severability Of Provisions.................................21
SECTION 11.06. Counterparts...............................................21
SECTION 11.07. Successors And Assigns.....................................21
SECTION 11.08. [Reserved].................................................22
SECTION 11.09. No Petition................................................22
SECTION 11.10. [Reserved].................................................22
SECTION 11.11. Headings...................................................22
SECTION 11.12. Governing Law..............................................22
SECTION 11.13. [Reserved].................................................22
SECTION 11.14. [Reserved].................................................22
EXHIBITS
Exhibit A - Form of Certificate of Trust.............................A-1
This Trust Agreement dated as of August 1, 1998 between Mitsui Vendor
Leasing Funding Corp. II, a Delaware corporation, as Trust Depositor (the "Trust
Depositor"), and ________________________________, a _________________________,
as owner trustee (the "Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. Except as otherwise provided in this
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Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Agreement: This Trust Agreement, as the same may be amended and
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supplemented from time to time pursuant to the terms hereof and the other Basic
Documents.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code,
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12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to time.
Certificate of Trust: The Certificate of Trust filed for the Trust
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pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of Exhibit A hereto.
Expenses: As defined in Section 8.02.
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Indemnified Parties: As defined in Section 8.02.
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Owner Trustee: ____________________, a ____________________, not in
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its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
Owner Trustee Corporate Trust Office: The office of the Owner Trustee
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at which its corporate trust business shall be administered, which initially
shall be _________________________________, or such other office at such other
address as the Owner Trustee may designate from time to time by notice to the
Owner, the Seller, the Servicer, the Indenture Trustee and the Trust Depositor.
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated
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as of the date hereof, among the Trust, the Trust Depositor, the Seller, the
Servicer, the Indenture Trustee and the Back-up Servicer.
Secretary of State: The Secretary of State of the State of Delaware.
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Treasury Regulations: The regulations, including proposed or temporary
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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: The trust established by this Agreement.
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Trust Depositor: Mitsui Vendor Leasing Funding Corp. II in its
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capacity as Trust Depositor hereunder, and its successors.
Trust Estate: All right, title and interest of the Trust in and to the
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Trust Assets.
SECTION 1.02. Other Definitional Provisions. Capitalized terms used
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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,
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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".
SECTION 1.04. Section References. All section references, unless otherwise
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indicated, shall be to Sections in this Agreement.
SECTION 1.05. Accounting Terms. All accounting terms used but not
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specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION
SECTION 2.01. Name. The Trust created hereby shall be known as "Mitsui
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Vendor Leasing Asset Trust 1998-1," 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
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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
Trust Depositor, the Indenture Trustee and the Administrator.
SECTION 2.03. Purposes And Powers.
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(a) The sole purpose of the Trust is to manage the Trust Estate and
collect and disburse the periodic income therefrom for use in accordance with
this Agreement and the other Basic Documents, and in furtherance of such purpose
to engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and to sell the
Notes;
(ii) with the proceeds of the sale of the Notes, to purchase the
Contracts and other Trust Assets, 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
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 Basic
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 Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Trust Estate and the making of distributions in accordance with the Sale
and Servicing Agreement and other Basic Documents.
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 this Section 2.03. 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
this Section 2.03.
SECTION 2.04. Appointment Of Owner Trustee. The Trust Depositor hereby
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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. Capital Contribution Of Owner Trust Estate. The Trust
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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
(prior to giving effect to the conveyances described in the Sale and Servicing
Agreement). 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
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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, subject to the obligations of the
Trust under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Statute and that
this Agreement constitute the governing instrument of such business trust. It is
the intention of the parties hereto that the Trust be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulation Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The parties
agree not to take any action inconsistent with such intended federal income tax
treatment. 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 purposes of this
Trust as set forth in Section 2.03.
SECTION 2.07. Liability Of Trust Depositor.
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(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 (including any
personal property replacement tax that is imposed on the Trust as a
partnership); provided that the Trust Depositor shall not be liable for any
losses incurred by 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.
SECTION 2.08. Title To Trust Property. Legal title to the Trust Estate
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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
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in the State of Delaware or the State of New York. The Trust shall not have any
employees in any state other than Delaware; provided that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of 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
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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 Delaware, 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 material breach of any of the material terms and provisions
of, nor constitute (with or without notice or lapse of time) a material
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 any
branch of any of the terms and provisions of or constitute (with or without
notice or lapse of time, or both) a default under any indenture, agreement,
mortgage, deed of trust or other instrument to which the Trust Depositor is
a party or by which it is bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument, other
than the Basic Documents, or violate any law, 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 any of its
properties, except in each case to the extent it would not have a material
adverse effect on the validity or enforceability of, or its performance
under, the Basic Documents.
(v) The Trust Depositor holds all necessary licenses, certificates and
permits from all Government Authorities necessary for conducting its
business as it is presently conducted, and is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any Governmental
Authority, bureau or agency in connection with the delivery, performance,
validity or enforceability of the Basic Documents, to which it is a party,
except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as the
case may be, prior to the Closing Date.
(vi) 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 or any of the other Basic Documents, (B)
seeking to prevent the issuance of the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic
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 or
any of the other Basic Documents 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.
SECTION 2.11. Federal Income Tax Treatment.
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(a) It is the intention of the Trust Depositor that the Trust be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) as in effect for periods after
January 1, 1997. The Trust Depositor agrees not to take any action inconsistent
with such intended federal income tax treatment. Because for federal income tax
purposes the Trust will be disregarded as a separate entity, items of income,
gain, loss and deduction for any month as determined for federal income tax
purposes shall be allocated entirely to the Trust Depositor as the sole
beneficiary of the Trust.
ARTICLE III
[RESERVED]
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice To Trust Depositor With Respect To Certain
------------------------------------------------------------
Matters. Subject to the provisions and limitation of Section 4.04, with respect
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to the following matters, the Owner Trustee shall not take any of the following
actions unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Trust Depositor in writing of the proposed
action, the Indenture Trustee shall have consented to such action in the event
any Notes are outstanding and the Trust Depositor shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
the Trust Depositor 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 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) [Reserved];
(e) [Reserved]; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, or the consent to the assignment
by the Note Registrar, Paying Agent or Indenture Trustee of its obligations
under the Indenture.
SECTION 4.02. Actions 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 Trust Depositor, 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 8.2 of the Sale and Servicing
Agreement, (d) except as expressly provided in the Basic Documents, sell the
Contracts or other Trust Assets 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 Trust
Depositor.
SECTION 4.03. Action By the Trust Depositor With Respect To Bankruptcy.
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The Owner Trustee shall not have the power to commence a voluntary proceeding in
a bankruptcy relating to the Trust without the prior approval of the Trust
Depositor and the delivery to the Owner Trustee by the Trust Depositor of a
certificate certifying that the Trust Depositor reasonably believes that the
Trust is insolvent.
SECTION 4.04. Restrictions On the Trust Depositor's and the
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Administrator's Power. Neither the Administrator nor the Trust Depositor shall
----------------------
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Agreement or any of the Basic Documents or would be contrary
to 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.
ARTICLE V
CERTAIN DUTIES
SECTION 5.01. [Reserved]
SECTION 5.02. [Reserved]
SECTION 5.03. [Reserved]
SECTION 5.04. [Reserved]
SECTION 5.05. The Internal Revenue Service And Others. The Owner Trustee
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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) deliver to the
Trust Depositor, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable the Trust Depositor
to prepare its federal and state income tax returns, (c) file such tax returns
relating to the Trust 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 federal income tax treatment
for the Trust as set forth in Section 2.11, (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. 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. If applicable, 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) If Subchapter K of the Code should be applicable to the Trust, 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.
ARTICLE VI
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 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 any
amendment or other agreement (in each case, in such form as approved by the
Trust Depositor), 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 Administrator recommends with respect to the Basic
Documents.
SECTION 6.02. General Duties. It shall be the duty of the Owner Trustee
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to discharge (or cause to be discharged through the Administrator) all of its
responsibilities pursuant to the terms of this Agreement and the Basic Documents
to which the Trust is a party and to administer the Trust, subject to the Basic
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 Mitsui Vendor Leasing (U.S.A.)
Inc. in connection with any claims paying procedure as part of an insolvency or
receivership proceeding involving Mitsui Vendor Leasing U.S.A. (Inc.).
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic 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.
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(a) Subject to Article IV hereof, in accordance with the terms of the
Basic Documents, the Trust Depositor 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 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.
(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 Trust Depositor
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Trust Depositor 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 Basic Documents, as it shall deem to be in the best interests of the
Noteholders, 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 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
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 Owner
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 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 Basic
Documents, as it shall deem to be in the best interests of the Noteholders, and
shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will
(i) require the registration with, licensing by or the taking of any
other similar action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware by
or with respect to the Owner Trustee;
(ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence
on the date hereof other than the State of Delaware being payable by the
Owner Trustee; or
(iii) subject the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by the Owner
Trustee contemplated in this Agreement. In the event that the Owner Trustee
has determined that any action set forth in clauses (i)-(iii) will result
in the consequences stated therein, the Administrator and the Owner Trustee
shall appoint one or more Persons to act as co-trustee pursuant to Section
10.05.
SECTION 6.04. No Duties Except As Specified In This Agreement Or In
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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 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 Commission filing for the Trust or to record
this Agreement or any other Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust 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 Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any action
------------
(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. Neither the Administrator nor the Owner shall direct the Owner Trustee
to take actions that would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance Of Trusts And Duties. The Owner Trustee accepts
-------------------------------
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the 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 responsible officer of the Owner Trustee which did not result from
gross negligence on the part of such responsible officer;
(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 the Owner;
(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 Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) 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 Basic Documents, and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to the
Owner, 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 Administrator, the Trust 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 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/or the Transfer and Sale 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 Basic Document, at the request, order or direction of the
Trust Depositor, unless the Trust Depositor 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 Trust Depositor promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 7.03. Representations And Warranties. The Owner Trustee hereby
--------------------------------
represents and warrants to the Trust Depositor that:
(a) It is a _______________ duly organized and validly existing in
good standing under the laws of the State of ___________. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution 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 Basic 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
Basic 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 as 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 VII, in accepting the trusts hereby created, ______________________
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 Trust Estate for payment or satisfaction thereof.
SECTION 7.06. Owner Trustee Not Liable For Notes Or Contracts. The
------------------------------------------------------
recitals contained herein 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, or any other Basic Document 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 Equipment 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 the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Equipment; 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
Basic 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 Notes. The Owner Trustee in its
-------------------------------
individual or any other capacity may become the owner or pledgee of 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.
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 such fees as have been
separately agreed upon and which shall be paid consistent with Section 9.15 of
the Sale and Servicing Agreement. Additionally, the Owner Trustee shall be
entitled to be reimbursed by the Trust or 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 Basic Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder; provided 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; provided further that the liability of the Trust Depositor under
this Section shall be limited to the assets of the Trust Depositor. 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.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination Of 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 the terms of the Indenture, the Sale and
Servicing Agreement and Article V hereof, (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 the Trust Depositor as described in Section
9.02, shall not (i) operate to terminate this Agreement or the Trust, (ii)
entitle the Trust Depositor's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or 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 shall be given by the Owner
Trustee by letter to the Trust Depositor mailed within five Business Days of
receipt of notice of such termination from the Servicer given pursuant to
Section 5.1(b) of the Sale and Servicing Agreement, stating the date of such
termination.
(d) [Reserved]
(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, unless within
such 90 day period, the Owner Trustee shall have received written instructions
from the Required Holders not to dissolve or terminate the Trust. Promptly after
the occurrence of any Insolvency Event with respect to the Trust Depositor, the
Trust Depositor shall give the Indenture Trustee and Owner Trustee written
notice thereof, and the Indenture Trustee shall give prompt written notice to
the Noteholders thereof. Upon a termination pursuant to this Section, the Owner
Trustee shall direct the Indenture Trustee promptly to sell the Trust Assets in
a commercially reasonable manner and on commercially reasonable terms. The
proceeds of such a sale of the Trust Assets shall be treated as Collections
under the Sale and Servicing Agreement.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND
ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements For Owner Trustee. The Owner
-----------------------------------------------
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; and (a) 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) a rating of at least Baa3 by ▇▇▇▇▇'▇; or
(b) which the Rating Agencies have otherwise indicated in writing is an entity
acceptable to act as Owner Trustee hereunder. 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. Upon acceptance of appointment by a
successor Owner Trustee pursuant to this Section, the Administrator shall mail
notice thereof to the Trust Depositor, 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; 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 Equipment 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 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.
ARTICLE XI
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 Indenture Trustee
on behalf of any Noteholder), 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 that any such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by the Trust
Depositor, and the Owner Trustee, with the consent of the Required Holders, 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; provided 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 (ii) reduce the aforesaid
percentage of the outstanding principal amount of the Notes required to consent
to any such amendment, without the consent of the Holders of all outstanding
Notes.
(c) Prior to the execution of any such amendment or consent, the Trust
Depositor 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) It shall not be necessary for the consent of the 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
of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall 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 and the other Basic Documents, and
that all conditions precedent to the execution and delivery of such amendment as
set forth in Basic Documents have been satisfied. 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 the Trust Depositor.
-------------------------------
The Trust Depositor shall not have legal title to any part of the Trust Estate.
No transfer, by operation of law or otherwise, of any right, title or interest
of the Trust Depositor of any beneficial 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 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 at the address specified in
the Sale and Servicing Agreement for such recipient.
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.
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, all as herein provided.
SECTION 11.08. [Reserved]
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
Notes, this Agreement or any of the other Basic Documents.
(b) The Owner Trustee, by entering into this Agreement, 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 Notes, this Agreement or any of the other Basic
Documents.
SECTION 11.10. [Reserved]
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. [Reserved]
SECTION 11.14. [Reserved]
--------
[remainder of this page intentionally left blank]
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.
MITSUI VENDOR LEASING FUNDING CORP II.
By: ________________________________________
Name: __________________________________
Title:__________________________________
_____________________________________________
not in its individual capacity but solely as
Owner Trustee
By: ________________________________________
Name: __________________________________
Title:__________________________________
EXHIBIT A
CERTIFICATE OF TRUST OF MITSUI VENDOR
LEASING ASSET TRUST 1998-1
This Certificate of Trust of Mitsui Vendor Leasing Asset Trust 1998-1
(the "TRUST"), dated August __, 1998, is being duly executed and filed by
________________, a ________________, 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 Mitsui Vendor
----
Leasing Asset Trust 1998-1.
2. Delaware Trustee. The name and business address of the Owner
------------------
Trustee of the Trust in the State of Delaware is ______________________________
_________________ (Attn: ____________________________).
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.
_____________________________________________
not in its individual capacity but solely as
Owner Trustee
By: ________________________________________
Printed Name: __________________________
Title:
