Exhibit 4.1(b)
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AMENDED AND RESTATED TRUST AGREEMENT
between
MITSUI VENDOR LEASING FUNDING CORP. II
as Trust Depositor,
MITSUI VENDOR LEASING (U.S.A.) INC.
as Servicer
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of October 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................................3
SECTION 1.03. Usage of Terms...............................................3
SECTION 1.04. Section References...........................................3
SECTION 1.05. Accounting Terms.............................................3
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...................5
SECTION 2.06. Declaration of Trust.........................................5
SECTION 2.07. Liability of Trust Depositor.................................5
SECTION 2.08. Title to Trust Property......................................5
SECTION 2.09. Situs of Trust...............................................6
SECTION 2.10. Representations And Warranties of the Trust Depositor........6
SECTION 2.11. Federal Income Tax Treatment.................................7
ARTICLE III
THE INVESTOR CERTIFICATES
SECTION 3.01. Initial Ownership............................................7
SECTION 3.02. The Investor Certificates....................................7
SECTION 3.03. Execution, Authentication and
Delivery of Investor Certificates............................8
SECTION 3.04. Registration of Transfer and
Exchange of Investor Certificates............................8
SECTION 3.05. Mutilated, Destroyed, Lost or
Stolen Investor Certificates.................................9
SECTION 3.06. Persons Deemed Owners........................................9
SECTION 3.07. Access to List of Owners' Names and Addresses................9
SECTION 3.08. Maintenance of Office or Agency.............................10
SECTION 3.09. Appointment of the IC Paying Agent..........................10
SECTION 3.10. Definitive Certificates.....................................10
SECTION 3.11. Restrictions on Transfer....................................11
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Trust Depositor
with Respect to Certain Matters.............................14
SECTION 4.02. [Reserved]..................................................15
SECTION 4.03. Action by the Trust Depositor
with Respect to Bankruptcy..................................15
SECTION 4.04. Restrictions on the Trust Depositor's and
the Administrator's Power...................................15
ARTICLE V
CERTAIN DUTIES
SECTION 5.01. [Reserved]..................................................15
SECTION 5.02. [Reserved]..................................................15
SECTION 5.03. [Reserved]..................................................15
SECTION 5.04. [Reserved]..................................................16
SECTION 5.05. The Internal Revenue Service and Others.....................16
SECTION 5.06. Signature on Returns; Tax Matters Partner...................16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. General Authority..........................................16
SECTION 6.02. General Duties.............................................16
SECTION 6.03. Action upon Instruction....................................17
SECTION 6.04. No Duties Except as Specified in
this Agreement or in Instructions..........................18
SECTION 6.05. No Action Except Under Specified
Documents or Instructions..................................18
SECTION 6.06. Restrictions...............................................19
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. Acceptance of Trusts and Duties............................19
SECTION 7.02. Furnishing of Documents....................................20
SECTION 7.03. Representations and Warranties.............................20
SECTION 7.04. Reliance; Advice of Counsel................................21
SECTION 7.05. Not Acting In Individual Capacity..........................21
SECTION 7.06. Owner Trustee Not Liable for Notes,
Investor Certificates or the Contracts.....................21
SECTION 7.07. Owner Trustee May Own Notes................................22
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. Owner Trustee's Fees and Expenses..........................22
SECTION 8.02. Indemnification............................................22
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement.............................23
SECTION 9.02. [Reserved].................................................23
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. Eligibility Requirements for Owner Trustee.................24
SECTION 10.02. Resignation or Removal of Owner Trustee....................24
SECTION 10.03. Successor Owner Trustee....................................25
SECTION 10.04. Merger or Consolidation of Owner Trustee...................25
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee..............25
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Supplements and Amendments.................................27
SECTION 11.02. No Legal Title to Trust Estate
In the Trust Depositor.....................................28
SECTION 11.03. Limitations on Rights of Others............................28
SECTION 11.04. Notices....................................................28
SECTION 11.05. Severability of Provisions.................................28
SECTION 11.06. Counterparts...............................................28
SECTION 11.07. Successors And Assigns.....................................29
SECTION 11.08. [Reserved].................................................29
SECTION 11.09. No Petition................................................29
SECTION 11.10. [Reserved].................................................29
SECTION 11.11. Headings...................................................29
SECTION 11.12. Governing Law..............................................29
SECTION 11.13. [Reserved].................................................29
SECTION 11.14. [Reserved].................................................29
[remainder of this page intentionally left blank]............................29
EXHIBITS
Exhibit A - Form of Certificate of Trust.............................A-1
Exhibit B - Form of Investor Certificate.............................B-1
Exhibit C - Form of Investment Letter................................C-1
This Amended and Restated Trust Agreement dated as of October 1, 1998
between Mitsui Vendor Leasing Funding Corp. II, a Delaware corporation, as Trust
Depositor (the "Trust Depositor"), Mitsui Vendor Leasing (U.S.A.) Inc., as
Servicer (the "Servicer") and Wilmington Trust Company, a Delaware banking
corporation, as owner trustee (the "Owner Trustee").
WHEREAS, a trust agreement dated as of October 1, 1998 between the
Depositor and the Owner Trustee (the "Original Trust Agreement") was entered
into on November 5, 1995; and
WHEREAS, this Trust Agreement is being entered into by the parties
hereto to amend and restate the Original Trust Agreement.
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Owner Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Agreement: This Amended and Restated Trust Agreement.
Business Trust Statute: Chapter 38 of Title 12 of the Delaware Code,
12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to time.
Certificate Register and Certificate Registrar: The register mentioned
and the registrar appointed pursuant to Section 3.04.
Certificate of Trust: The Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of Exhibit A hereto.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
Expenses: As defined in Section 8.02.
Holder: With respect to the Investor Certificate, a Person in whose
name an Investor Certificate is registered in the Certificate Register.
IC Paying Agent: The Indenture Trustee or any other paying agent or
co-paying agent appointed pursuant to Section 3.09 and authorized by the Issuer
to make payments to and distributions to the Holders of the Investor
Certificates as provided in subsections 4.10(a)(x) and (b)(ix) of the Sale and
Servicing Agreement.
Indemnified Parties: As defined in Section 8.02.
Investment Letter: An investment letter substantially in the form of
Exhibit C hereto.
Investor Certificate: An Investor Certificate substantially in the form
attached as Exhibit B hereto and issued pursuant to Article III hereof.
Non-U.S. Person: An individual, corporation, partnership or other person
other than a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof, or an estate or trust that
is subject to U.S. federal income tax regardless of the source of its income.
Owner Trustee: Wilmington Trust Company, a Delaware banking corporation,
not in 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 at
which its corporate trust business shall be administered, which initially shall
be Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, or such other office at such other
address as the Owner Trustee may designate from time to time by notice to the
Owner, the Seller, the Servicer, the Indenture Trustee, the Trust Depositor and
the Holders of the Investor Certificates.
Percentage Interest: With respect to any Investor Certificate, the
percentage portion of all of the Investor Certificates evidenced thereby as
stated on the face of such Investor Certificate.
Prospective Owner: The meaning set forth in Section 3.11(a).
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated 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.
Treasury Regulations: The regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Trust: The trust established by this Agreement.
Trust Depositor: Mitsui Vendor Leasing Funding Corp. II in its capacity as
Trust Depositor hereunder, and its successors.
Trust Estate: All right, title and interest of the Trust in and to the
Trust Assets.
U.S. Person: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any State (other than a partnership that is not treated as a
U.S. Person under any applicable Treasury Regulations), or an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more U.S. Persons
have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in Treasury
Regulations, certain trusts in existence on August 20, 1996 and treated as U.S.
Persons prior to such date that elect to continue to be treated as U.S. Persons,
also will be U.S. Persons.
SECTION 1.02. Other Definitional Provisions. Capitalized terms used that
are not otherwise defined herein shall have the meanings ascribed thereto in the
Sale and Servicing Agreement.
SECTION 1.03. Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation".
SECTION 1.04. Section References. All section references, unless otherwise
indicated, shall be to Sections in this Agreement.
SECTION 1.05. Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION
SECTION 2.01. Name. The Trust created hereby shall be known as "Mitsui
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 xxx and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of the Owner
Trustee at the Owner Trustee Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the Trust
Depositor, the Indenture Trustee, the Administrator and the Holders of the
Investor Certificates.
SECTION 2.03. Purposes and Powers.
(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
the Trust has the power and authority and is hereby authorized to engage in the
following ministerial activities:
(i) to execute, deliver and 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 execute, deliver and issue the Investor Certificates pursuant
to this Agreement;
(iv) 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;
(v) to enter into, execute, deliver and perform its obligations under
the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including, entering into,
executing, delivering and performing its obligations under 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 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 (which it is hereby authorized to perform) 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
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
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
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 Trust Depositor agrees not to take
(or cause the Trust or the Owner Trustee to take) (and the Owner Trustee shall
not otherwise 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, authority, authorization and duties set forth herein and in the
Business Trust Statute for the sole purpose and to the extent necessary,
convenient or incidental to accomplish the purposes of this Trust as set forth
in Section 2.03.
SECTION 2.07. Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute, the
Trust Depositor shall be liable directly to and will indemnify any injured party
or any other creditor of the Trust for all losses, claims, damages, liabilities
and expenses of the Trust to the extent that the Trust Depositor would be liable
if the Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which Trust Depositor were a general partner (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 or
any losses incurred by any Holder of an Investor Certificate in the capacity of
an investor in an Investor Certificate. 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
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in an owner trustee or owner trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located and administered in
the State of Delaware. 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
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.
(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
THE INVESTOR CERTIFICATES
SECTION 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Trust Depositor pursuant to Section 2.05 and until the
issuance of the Investor Certificates, the Trust Depositor shall be the sole
owner of the Trust.
SECTION 3.02. The Investor Certificates. Each Investor Certificate shall be
issued as Percentage Interests of all Investor Certificates and not with a
principal amount. The Investor Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of a Responsible Officer of the Owner
Trustee. Any Investor Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be valid and binding
obligations of the Trust, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Investor Certificate or did not hold such offices at the date of
authentication and delivery of such Investor Certificates.
A transferee of an Investor Certificate shall become a Holder of the
Investor Certificate, and shall be entitled to the rights and subject to the
obligations of a Holder of the Investor Certificate hereunder and under
subsections 4.10(a)(x) and (b)(ix) of the Sale and Servicing Agreement, upon
such transferee's acceptance of an Investor Certificate duly registered in such
transferee's name pursuant to Section 3.04.
SECTION 3.03. Execution, Authentication and Delivery of Investor
Certificates. On the Closing Date the Owner Trustee shall cause one or more
Investor Certificates representing in aggregate 100% of the Percentage Interests
of the Investor Certificates to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Trust Depositor,
signed by an authorized signatory, without further corporate action by the Trust
Depositor. No Investor Certificate shall entitle its holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall appear on
such Investor Certificate a certificate of authentication substantially in the
form as set forth in Exhibit B, executed by the Owner Trustee, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Investor Certificate shall have been duly authenticated and delivered
hereunder. All Investor Certificates shall be dated the date of their
authentication.
SECTION 3.04. Registration of Transfer and Exchange of Investor
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Investor Certificates and of
transfers and exchanges of Investor Certificates as herein provided. The Owner
Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Investor Certificate at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Investor Certificates in like
Percentage Interest dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option a Holder of an Investor Certificate,
Investor Certificates may be exchanged for other Investor Certificates of like
aggregate Percentage Interests upon surrender of the Investor Certificates to be
exchanged at the office or agency maintained pursuant to Section 3.08.
Every Investor Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee, the Indenture Trustee (so long as the
Indenture Trustee's office is designated by the Owner Trustee as its corporate
trust office for certain purposes as provided in Section 3.8) and the
Certificate Registrar duly executed by the Holder of an Investor Certificate or
his attorney duly authorized in writing. In addition, each Investor Certificate
presented or surrendered for registration of transfer and exchange must be
accompanied by an Investment Letter from the Prospective Owner. Each Investor
Certificate surrendered for registration of transfer or exchange shall be
canceled and disposed of by the Owner Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Investor Certificates.
The preceding provisions of this Section notwithstanding, the Owner Trustee
shall not make and the Certificate Registrar shall not register transfer or
exchanges of Investor Certificates for a period of 5 Business Days preceding any
Payment Date.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Investor Certificates.
If (a) any mutilated Investor Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Investor Certificate
and (b) there shall be delivered to the Certificate Registrar and the Owner
Trustee such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Investor Certificate
shall have been acquired by a bona fide purchaser, the Owner Trustee on behalf
of the Trust shall execute and the Owner Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Investor Certificate, a new Investor Certificate of like tenor and denomination.
In connection with the issuance of any new Investor Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Investor Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Investor Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of an
Investor Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and the IC Paying Agent may treat the Person in whose name
any Investor Certificate shall be registered in the Certificate Register as the
Holder and owner of such Investor Certificate for all purposes whatsoever, and
none of the Owner Trustee, the Certificate Registrar or the IC Paying Agent
shall be bound by any notice to the contrary.
SECTION 3.07. Access to List of Owners' Names and Addresses. The Owner
Trustee shall furnish or cause to be furnished to the Servicer, the Indenture
Trustee and the Trust Depositor, within 5 Business Days after receipt by the
Owner Trustee of a request therefor from the Servicer, the Trust Depositor or
the Indenture Trustee in writing, a list, in such form as the Servicer, the
Trust Depositor or the Indenture Trustee may reasonably require, of the names
and addresses of the Holders of the Investor Certificates as of the most recent
Payment Date. If Holders of Investor Certificates together evidencing not less
than 25% of the Percentage Interest of all Investor Certificates apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Holders of Investor Certificates with respect
to their rights under this Agreement or under the Investor Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Owner Trustee shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Certificateholders. Each Holder of
an Investor Certificate, by receiving and holding an Investor Certificate, shall
be deemed to have agreed not to hold any of the Trust Depositor, the Servicer,
the Certificate Registrar, the Indenture Trustee, the Owner Trustee or any other
Person accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 3.08. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Investor Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Investor Certificates and the Basic
Documents may be served. The Owner Trustee initially designates the Indenture
Trustee's office in New York as its principal corporate trust office for such
purposes. The Owner Trustee shall give prompt written notice to the Holders of
the Investor Certificates of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.09. Appointment of the IC Paying Agent. The Owner Trustee hereby
appoints the Indenture Trustee as the IC Paying Agent under this Agreement. The
IC Paying Agent shall make distributions to the Holders of the Investor
Certificates pursuant to subsections 4.10(a)(x) and (b)(ix) of the Sale and
Servicing Agreement and shall report the amounts of such distributions to the
Owner Trustee. Distributions required to be made to Holders of Investor
Certificates pursuant to Section 4.10(a)(x) of the Sale and Servicing Agreement
on any Payment Date shall be made by the IC Paying Agent to each Holder of
record at the close of business on the last day of the calendar month preceding
such Payment Date either by wire transfer, in immediately available funds, to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Holder shall have provided to the IC Paying Agent
appropriate written instructions at least five Business Days prior to such
Payment Date and such Holder's Investor Certificates in the aggregate evidence a
Percentage Interest of not less than 25%, or, if not, by check mailed to such
Holder at the address of such holder appearing in the Certificate Register. The
Certificate Registrar shall, upon written request, provide the IC Paying Agent
the information in the Certificate Register required in order for the IC Paying
Agent to perform its obligations pursuant to the preceding sentence.
SECTION 3.10. Definitive Certificates. The Investor Certificates
Instruments will be issued in definitive, fully registered form. The Investor
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Owner Trustee, as evidenced
by its execution thereof.
SECTION 3.11. Restrictions on Transfer. (a) Each prospective purchaser and
any subsequent transferee of an Investor Certificate (each, a "Prospective
Owner"), other than the Trust Depositor or any of its affiliates, shall
represent and warrant in writing (which may be effected by delivery of a signed
Investment Letter from such Prospective Owner) , to the Owner Trustee and the
Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Investor
Certificates and its purchase of investments having the characteristics of
the Investor Certificates is authorized under, and not directly or
indirectly in contravention of, any law, charter, trust instrument or other
operative document, investment guidelines or list of permissible or
impermissible investments that is applicable to the investor.
(ii) Such Person understands that each holder of an Investor
Certificate, by virtue of its acceptance thereof, assents to the terms,
provisions and conditions of this Agreement and the Basic Documents,
including the many significant limitations on the rights of the holders of
Investor Certificates under this Agreement and the Basic Documents
(including in Section 11.01(c) hereof).
(iii) Such Person is a U.S. Person that is not an organization exempt
from tax under Section 501 of the Code including the many significant
limitations on the rights of holders of Investor Certificates under this
Agreement.
(iv) In the case of a proposed transfer of an Investor Certificate,
such Person understands that the Investor Certificates will bear legends to
the following effect:
THIS INVESTOR CERTIFICATE MAY ONLY BE PURCHASED BY A UNITED STATES
PERSON WITHIN THE MEANING OF SECTION 7701(a) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") THAT IS NOT AN ORGANIZATION
EXEMPT FROM TAX UNDER SECTION 501 OF THE CODE IN COMPLIANCE WITH THE
REQUIREMENTS OF THE TRUST AGREEMENT.
(b) Each Prospective Owner (other than the Trust Depositor or any of
its affiliates) of an Investor Certificate shall represent and warrant in
writing (which may be effected by delivery of a signed Investment Letter from
such Prospective Owner) to the Owner Trustee and the Certificate Registrar and
any of their respective successors that:
(i) Such Person is (A) a "qualified institutional buyer" as defined in
Rule 144A under the Securities Act, and is aware that the seller of the
such Investor Certificate may be relying on the exemption from the
registration requirements of the Securities Act provided by Rule 144A and
is acquiring such Investor Certificate for its own account or for the
account of one or more qualified institutional buyers for whom it is
authorized to act, or (B) an institutional investor that is an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act).
(ii) It understands that such Investor Certificates have not been
registered under the Securities Act, and that, if in the future it decides
to offer, resell, pledge or otherwise transfer such Investor Certificates,
such Investor Certificates may be offered, resold, pledged or otherwise
transferred only (A) for so long as such Investor Certificates are eligible
for resale pursuant to Rule 144A under the Securities Act, to a person whom
the seller reasonably believes is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act that is purchasing such
Investor Certificates for its own account or for the account of a qualified
institutional buyer to whom notice is given that the transfer is being made
in reliance on Rule 144A, or (B) to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) that is acquiring such Investor Certificates for its own
account or for the account of such an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act), for investment purposes (other than in the case where the
owner of such Investor Certificate is a broker-dealer) and not with a view
to, or for offer or sale in connection with, any distribution in violation
of the Securities Act, in each case in compliance with the requirements of
this Agreement. It also (x) understands that an employee benefit plan
subject to ERISA or Section 4975 of the Code, and entities using the assets
of any such employee benefit plan, are prohibited from acquiring the
Investor Certificates (except to the extent that an exemption from such
prohibition is available, as described herein), (y) is not a person which
is an employee benefit plan, trust or account subject to Title I of ERISA
or Section 4975 of the Code or a governmental plan, defined in Section
3(32) of ERISA subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(any such person being a "Plan") and (z) is not an entity, including an
insurance company separate account or general account, whose underlying
assets include Plan assets by reason of a Plan's investment in the entity.
(iii) Such person understands that the Certificate bears legends (in
addition to the legend identified in Section 3.11(a)(iv)) to the following
effect:
THIS INVESTOR CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS. THIS INVESTOR CERTIFICATE MAY BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING
PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS
REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO
RULE 144A, (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE
3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND SUCH LAWS OR (III) AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7)
OF REGULATION D UNDER THE SECURITIES ACT) THAT IS ACQUIRING THE
INVESTOR CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES (OTHER
THAN IN THE CASE WHERE THE OWNER OF THE INVESTOR CERTIFICATE IS A
BROKER DEALER) AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT.
NO PERSON IS OBLIGATED TO REGISTER THIS INVESTOR CERTIFICATE UNDER THE
ACT OR ANY STATE SECURITIES LAWS.
NO TRANSFER OF THIS INVESTOR CERTIFICATE OR ANY BENEFICIAL INTEREST
HEREIN SHALL BE MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS
RECEIVED AN INVESTMENT LETTER FROM THE TRANSFEREE TO THE EFFECT THAT
SUCH TRANSFEREE (I) IS NOT A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN,
TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE CODE
OR A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUCH
PERSON BEING A "PLAN") AND (II) IS NOT AN ENTITY, INCLUDING AN
INSURANCE COMPANY SEPARATE ACCOUNT OR GENERAL ACCOUNT, WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT
IN THE ENTITY.
THIS INVESTOR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO
ANY PERSON THAT IS A "NON-U.S. PERSON". THE TERM "NON-U.S. PERSON"
MEANS A PERSON WHO IS NOT ONE OF THE FOLLOWING: A CITIZEN OR RESIDENT
OF THE UNITED STATES, A CORPORATION OR PARTNERSHIP INCLUDING AN ENTITY
TREATED AS A CORPORATION OR PARTNERSHIP FOR FEDERAL INCOME TAX
PURPOSES CREATED OR ORGANIZED IN OR UNDER THE LAWS OF THE UNITED
STATES, ANY STATE THEREOF OR THE DISTRICT OF COLUMBIA (UNLESS, IN THE
CASE OF A PARTNERSHIP, TREASURY REGULATIONS ARE ADOPTED THAT PROVIDE
OTHERWISE), AN ESTATE THAT IS SUBJECT TO U.S. FEDERAL INCOME TAX
REGARDLESS OF THE SOURCE OF ITS INCOME OR A TRUST IF (I) A COURT
WITHIN THE UNITED STATES IS ABLE TO EXERCISE PRIMARY SUPERVISION OVER
THE ADMINISTRATION OF THE TRUST AND ONE OR MORE UNITED STATES
FIDUCIARIES HAVE AUTHORITY TO CONTROL ALL SUBSTANTIAL DECISIONS OF THE
TRUST OR (II) THE TRUST IS ELIGIBLE AND DOES ELECT TO BE TREATED AS A
U.S. PERSON.
(c) By its acceptance of an Investor Certificate, each Prospective
Owner agrees and acknowledges that no legal or beneficial interest in all or any
portion of an Investor Certificate may be transferred directly or indirectly to
an entity that holds residual securities as nominee to facilitate the clearance
and settlement of such securities through electronic book-entry changes in
accounts of participating organizations.
(d) The Owner Trustee shall not execute, and shall not countersign and
deliver, an Investor Certificate in connection with any transfer thereof unless
the transferor shall have provided to the Owner Trustee an Investment Letter,
signed by the transferee, which Investment Letter shall contain, among other
things, an agreement by the transferee that it will not transfer such Investor
Certificate without providing to the Owner Trustee an Investment Letter from the
prospective transferee.
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
to the following matters, the Owner Trustee shall not take any of the following
actions unless consented to in writing by Holders of the Investor Certificates
representing 100% Percentage Interests in the Investor Certificates:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Contracts) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Contracts);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the removal of the Administrator or the appointment of a
successor Administrator pursuant to Section 8(b) of the Administration
Agreement;
(e) the approval of the merger or consolidation of the Trust with or
into any other business trust or entity;
(f) the sale of the Trust Estate after termination of the Indenture;
or
(g) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent, IC Paying Agent, Certificate Registrar or Indenture
Trustee, or the consent to the assignment by the Note Registrar, Paying Agent,
IC Paying Agent, Certificate Registrar or Indenture Trustee of its obligations
under the Basic Documents.
SECTION 4.02. [Reserved]
SECTION 4.03. Action by the Trust Depositor with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior written approval of Holders
of the Investor Certificates representing 100% Percentage Interests in the
Investor Certificates and the delivery to the Owner Trustee by such Holders of
the Investor Certificates of a certificate certifying that they reasonably
believe that the Trust is insolvent.
SECTION 4.04. Restrictions on the Trust Depositor's and the 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, as the case may be, or would be
contrary to the purpose of this Trust as set forth in Section 2.03. The Owner
Trustee shall not 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
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. The Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust (in each case in such
form as is furnished to the Owner Trustee from time to time by or on behalf of
the Trust Depositor) 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 addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take any and all actions required of the Trust
pursuant to the Basic Documents. The Owner Trustee is further authorized to take
such action on behalf of the Trust as the Administrator recommends in writing
from time to time 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 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 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 or
the Trust 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.
(a) Subject to Article IV hereof, in accordance with the terms of the
Basic Documents, the Holders of the Investor Certificates representing 100%
Percentage Interests in the Investor Certificates may, with the consent of the
Indenture Trustee (if any Notes are Outstanding), by written instruction direct
the Owner Trustee in the management of the Trust consistent with the Basic
Documents.
(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 (x) 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, or (y) in the event that the Owner
Trustee is unsure as to the applicability or performance 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 shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Holders of the
Investor Certificates (with a copy to the Indenture Trustee) 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 Holders of the Investor Certificates representing 100% Percentage Interests
in the Investor Certificates received by the Owner Trustee, 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 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 the Holders of the Investor Certificates, and shall have no
liability to any Person for such action or inaction.
(d) [Reserved]
(e) Notwithstanding anything contained herein or in any other Basic
Document 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
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 under any other Basic Document or to prepare or file any Commission
filing for the Trust or to record this Agreement or any other Basic Document.
Wilmington Trust Company, in its individual capacity, 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, Wilmington Trust Company, in its individual
capacity, 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 a Responsible Officer of the Owner
Trustee, would result in the Trust's becoming taxable as a corporation for
federal or state income tax purposes. None of the Administrator, the Trust
Depositor or any Holder of an Investor Certificate 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 in accordance with
this Agreement and the other Basic Documents 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 good faith in accordance with the
instructions of the Administrator, the Trust Depositor or the Holders of the
Investor Certificates as provided herein;
(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 or payments made in respect of the
Investor Certificates pursuant to Section 4.10(a)(x) of the Sale and Servicing
Agreement;
(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 any
Holder of an Investor Certificate, 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 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
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 liable to any Person 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, the Indenture Trustee and the Holder of the Holders of
Investor Certificates, promptly upon receipt of a written request therefor from
such Person, 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 banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution 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 otherwise
expressly provided in this Article VII, in accepting the trusts hereby created,
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any other Basic
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
SECTION 7.06. Owner Trustee Not Liable for Notes, Investor Certificates or
the 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, the Investor Certificates 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 the ability of the Trust
Estate to generate the payments to be distributed to the Noteholders or the
Holders of the Investor Certificates under the Indenture or the Sale and
Servicing Agreement (as applicable), including 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 Trust Depositor, 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. Wilmington Trust Company 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 from the Servicer (from amounts the Servicer receives as Servicing Fees)
as compensation for its services hereunder such fees as have been separately
agreed upon in writing between the Owner Trustee and the Servicer. Additionally,
the Owner Trustee shall be entitled to be reimbursed by the Servicer 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 Servicer 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 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 Servicer 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 proviso contained in the third sentence of Section
7.01. Notwithstanding anything to the contrary, the Servicer shall not reimburse
or pay any expense or indemnify against any loss, liability or expense incurred
as a result of any Indemnified Party 's willful misconduct, negligence or bad
faith. The parties hereto agree and acknowledge that, notwithstanding anything
to the contrary, all payments required to be made pursuant to this Section 8.02
shall not be made from the Trust Assets. The indemnities contained in this
Section shall survive the resignation, removal or termination of the Owner
Trustee and shall survive 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.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. Termination of Trust Agreement.
(a) The Trust shall be dissolved and this Agreement (other than
Article Eight) 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 Trust Estate in accordance with the terms of this Agreement and
the other Basic Documents. 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 or this
Agreement.
(c) Notice of any dissolution of the Trust and termination of this
Agreement shall be given by the Owner Trustee by letter to the Trust Depositor
and the Indenture Trustee mailed within five Business Days of receipt of written
notice of such dissolution and termination from the Servicer given pursuant to
Section 5.1(b) of the Sale and Servicing Agreement, stating the date of such
dissolution and 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. [Reserved]
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) an implied senior long-term public debt
rating (without direct third party credit enhancements) of at least Baa3 by
Xxxxx'x; 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,
the Holders of the Investor Certificates 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 Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
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 Person shall be eligible pursuant to Section 10.01; provided further
that the Owner Trustee shall mail notice of such merger, consolidation or
succession 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,
authority and authorization, 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, authority and authorization 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
Administrator;
(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) or any Holder of an Investor Certificate, 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, but
without the consent of any Holder of an Investor Certificate, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement, or of modifying in any manner the rights of the
Noteholders or the Holders of the Investor Certificates; 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) By way of clarification, it is the express intent of the parties
hereto (and by its acceptance of an Investor Certificate, each Holder of an
Investor Certificate agrees) that the Holder of the Investor Certificate does
not have any rights to consent or otherwise with respect to any amendment hereto
notwithstanding any effect such amendment might have on the rights of the Holder
of the Investor Certificate under this Agreement and the Basic Documents.
(d) 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.
(e) 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.
(f) 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.
(g) 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, the Noteholders and the Holders of the
Investor Certificates, 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 and each Holder of an Investor
Certificate, 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.,
as Trust Depositor
By: _________________________________________
Name: ___________________________________
Title: __________________________________
MITSUI VENDOR LEASING (U.S.A.) INC.,
as Servicer
By: _________________________________________
Name: ___________________________________
Title: __________________________________
WILMINGTON TRUST COMPANY,
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 October __, 1998, is being duly executed and filed by the
undersigned 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 trustee of the Trust which has its principal place of
business in the State of Delaware is: Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
Wilmington Trust Company,
not in its individual capacity
but solely as trustee
By: ____________________________________
Printed Name: ______________________
Title:
EXHIBIT B
[FORM OF INVESTOR CERTIFICATE]
THIS INVESTOR CERTIFICATE MAY ONLY BE PURCHASED BY A UNITED STATES PERSON WITHIN
THE MEANING OF SECTION 7701(a) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") THAT IS NOT AN ORGANIZATION EXEMPT FROM TAX UNDER SECTION 501 OF
THE CODE IN COMPLIANCE WITH THE REQUIREMENTS OF THE TRUST AGREEMENT.
THIS INVESTOR CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS.
THIS INVESTOR CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A
TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO
RULE 144A, (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST
OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED, IN A TRANSACTION THAT IS REGISTERED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS OR (III) AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or
(7) OF REGULATION D UNDER THE SECURITIES ACT) THAT IS ACQUIRING THE INVESTOR
CERTIFICATE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES (OTHER THAN IN THE CASE WHERE THE
OWNER OF THE INVESTOR CERTIFICATE IS A BROKER DEALER) AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT. NO PERSON IS OBLIGATED TO REGISTER THIS INVESTOR CERTIFICATE
UNDER THE ACT OR ANY STATE SECURITIES LAWS.
NO TRANSFER OF THIS INVESTOR CERTIFICATE OR ANY BENEFICIAL INTEREST HEREIN SHALL
BE MADE TO ANY PERSON UNLESS THE OWNER TRUSTEE HAS RECEIVED AN INVESTMENT LETTER
FROM THE TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE (I) IS NOT A PERSON WHICH
IS AN EMPLOYEE BENEFIT PLAN, TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR SECTION 4975 OF
THE CODE OR A GOVERNMENTAL PLAN, DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (ANY SUCH PERSON BEING A "PLAN") AND
(II) IS NOT AN ENTITY, INCLUDING AN INSURANCE COMPANY SEPARATE ACCOUNT OR
GENERAL ACCOUNT, WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A
PLAN'S INVESTMENT IN THE ENTITY.
THIS INVESTOR CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON
THAT IS A "NON-U.S. PERSON". THE TERM "NON-U.S. PERSON" MEANS A PERSON WHO IS
NOT ONE OF THE FOLLOWING: A CITIZEN OR RESIDENT OF THE UNITED STATES, A
CORPORATION OR PARTNERSHIP INCLUDING AN ENTITY TREATED AS A CORPORATION OR
PARTNERSHIP FOR FEDERAL INCOME TAX PURPOSES CREATED OR ORGANIZED IN OR UNDER THE
LAWS OF THE UNITED STATES, ANY STATE THEREOF OR THE DISTRICT OF COLUMBIA
(UNLESS, IN THE CASE OF A PARTNERSHIP, TREASURY REGULATIONS ARE ADOPTED THAT
PROVIDE OTHERWISE), AN ESTATE THAT IS SUBJECT TO U.S. FEDERAL INCOME TAX
REGARDLESS OF THE SOURCE OF ITS INCOME OR A TRUST IF (I) A COURT WITHIN THE
UNITED STATES IS ABLE TO EXERCISE PRIMARY SUPERVISION OVER THE ADMINISTRATION OF
THE TRUST AND ONE OR MORE UNITED STATES FIDUCIARIES HAVE AUTHORITY TO CONTROL
ALL SUBSTANTIAL DECISIONS OF THE TRUST OR (II) THE TRUST IS ELIGIBLE AND DOES
ELECT TO BE TREATED AS A U.S. PERSON.
MITSUI VENDOR LEASING ASSET TRUST 1998-1
INVESTOR CERTIFICATE
Percentage Interest: [100%]
No. [001]
THIS CERTIFIES THAT [Mitsui Vendor Leasing Funding Corp. II.], a
Delaware corporation (the "Owner") is the registered owner of a 100% Percentage
Interest of the Investor Certificates in Mitsui Vendor Leasing Asset Trust
1998-1 (the "Trust") existing under the laws of the State of Delaware and
created pursuant to the Amended and Restated Trust Agreement, dated as of
October 1, 1998 (the "Trust Agreement"), among Mitsui Vendor Leasing Funding
Corp. II, as Trust Depositor, Mitsui Vendor Leasing (U.S.A.) Inc., as Servicer,
and Wilmington Trust Company, as Owner Trustee. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the Trust Agreement.
The Owner Trustee, on behalf of the Issuer and not in its individual capacity,
has executed this Investor Certificate by one of its duly authorized signatories
as set forth below. This Investor Certificate is one of the Investor
Certificates referred to in the Trust Agreement and is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement to which
the holder of this Investor Certificate by virtue of the acceptance hereof
agrees and by which the holder hereof is bound. Reference is hereby made to the
Trust Agreement and Section 4.10(a)(x) of the Sale and Servicing Agreement for
the rights of the holder of this Investor Certificate, as well as for the terms
and conditions of the Trust created by the Trust Agreement.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Investor Certificate to be duly
executed.
Mitsui Vendor Leasing Asset Trust 1998-1
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By: _________________________________________
Authorized Signature
DATED:_____________
CERTIFICATE OF AUTHENTICATION
This is one of the Investor Certificates referred to in the
within-mentioned Trust Agreement.
Wilmington Trust Company
As Authenticating Agent
By: _________________________________________
Authorized Signature
THIS INVESTOR CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
________________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Instrument and all rights thereunder, hereby irrevocably constitutes
and appoints ___________________________________, attorney, to transfer said
Instrument on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________*/
Signature Guaranteed:
_______________________________*/
*/NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Instrument
in every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Certificate Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all accordance with the Securities Exchange Act of
1934, as amended.
EXHIBIT C
FORM OF INVESTMENT LETTER
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 00001
Attention: Corporate Trust Administration
Re: Mitsui Vendor Leasing Asset Trust 1998-1 (the "Issuer")
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Trust Agreement
(the "Trust Agreement") among ______________________________, as Trust
Depositor, Mitsui Vendor Leasing U.S.A. Inc., as Servicer, and Wilmington Trust
Company, as Owner Trustee, dated as of October 1, 1998. This letter is delivered
to you in connection with the transfer of an Investor Certificate by
(the "Transferor") to
_____________________ (the "Transferee") and in accordance with
Section 3.11 of the Trust Agreement. Capitalized terms used but not defined
herein have the meanings set forth in the Trust Agreement.
The undersigned, on behalf of and as an officer of the Transferee, HEREBY
CERTIFIES as follows:
1. The undersigned is a duly authorized officer of the Transferee, and the
Transferee is an entity that is duly organized and existing under the laws of
the jurisdiction of formation.
2. The Transferee hereby acknowledges that no transfer of an Investor
Certificate may be made unless such transfer is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and applicable state securities laws, or is made in accordance with the
Securities Act and such laws.
3. The Transferee understands that the Investor Certificate has not been
and will not be registered under the Securities Act and may be offered, sold,
pledged or otherwise transferred (except as otherwise provided in the first
paragraph of Section 3.14 of the Trust Agreement) only to a person whom the
seller thereof reasonably believes is (A) a qualified institutional buyer (as
defined in Rule 144A under the Securities Act), (B) a Person involved in the
organization or operation of the Trust or an affiliate of such Person, in a
transaction meeting the requirements of Rule 144A under the Securities Act and
in accordance with any applicable securities laws of any state of the United
States or (C) an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) that is
acquiring the Investor Certificate for its own account, or for the account of
such an institutional "accredited investor," for investment purposes (other than
in the case where the Transferee is a broker-dealer) and not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. The Transferee understands that the Investor Certificate bears a
legend to the foregoing effect.
4. The Transferee is acquiring the Investor Certificate for its own account
[for investment]* and not with a view to offer, sell or distribute the Investor
Certificate in any manner that would violate Section 5 of the Securities Act or
any applicable state securities laws.
5. The Transferee is either (i) a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act, and is aware that the Transferor
of the Investor Certificate may be relying on the exemption from the
registration requirements of the Securities Act provided by Rule 144A and is
acquiring the Investor Certificate for its own account or for the account of one
or more qualified institutional buyers for whom it is authorized to act or (ii)
an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act) that is acquiring the Investor
Certificate for its own account, or for the account of such an institutional
"accredited investor," for investment purposes (other than in the case where the
Owner is a broker dealer) and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act.
6. The Transferee will not authorize nor has it authorized any person to
make any public offering or general solicitation by means of general advertising
or to take any other action that would constitute a sale or distribution of the
Investor Certificate under the Securities Act, in violation of Section 5 of the
Securities Act or any state securities law, or that would require registration
or qualification pursuant thereto.
7. If the Transferee sells or otherwise transfers the registered ownership
of the Investor Certificate, the Transferee will comply with the restrictions
and requirements with respect to the transfer of the ownership of the Investor
Certificate under the applicable provisions of the Trust Agreement, and the
Transferee will obtain from any subsequent purchaser or transferee substantially
the same certifications, representations, warranties and covenants as required
under the Trust Agreement in connection with such subsequent sale or transfer
thereof, including a certificate substantially in the form hereof.
______________
*Not required if the transferee is a broker/dealer.
8. The Transferee is not a Non-U.S. Person and will not sell or otherwise
transfer the Investor Certificate to a Non-U.S. Person.
9. The Transferee is not an "employee benefit plan" within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any
such plan or employee benefit plan, a "Plan") and is not directly or indirectly
purchasing the Investor Certificate on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan.
10. The Transferee hereby indemnifies each of the Issuer, the Indenture
Trustee and the Owner Trustee against any liability that may result if the
Transferee's transfer of the Investor Certificate (or portion thereof) is not
exempt from the registration requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws. Such indemnification of the Issuer, the Owner Trustee and the
Indenture Trustee shall survive the termination of the related Trust Agreement.
11. Transferee hereby acknowledges that it has received and reviewed the
representations and warranties contained in Section 3.11 of the Trust Agreement,
and hereby represents and warrants that said representations and warranties are
true and correct as of the date hereof.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its duly authorized signatory as of the date first set forth above.
[NAME OF TRANSFEREE]
By:
Name:
Title:
