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EXHIBIT 4.3
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TRUST AGREEMENT
between
TL LEASE FUNDING CORP. IV
as Seller
and
Bankers Trust (Delaware),
a Delaware banking corporation
not in its individual capacity but solely as Owner Trustee,
Dated as of November 26, 1996
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TABLE OF CONTENTS
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ARTICLE I ----
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Capitalized Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Purposes and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4 Appointment of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Initial Capital Contribution of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.7 Liability of the Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.8 Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.9 Situs of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.10 Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.11 Books and Records; Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.12 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.13 Signature on Returns; Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
THE TRUST CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.1 The Trust Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.2 Execution and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Mutilated, Destroyed, Lost or Stolen Trust Certificate . . . . . . . . . . . . . . . . . . . 10
SECTION 3.4 Limitation on Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.5 Acts of the Certificateholders and Noteholders . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.6 Distributions to the
Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV
ACTIONS BY THE OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.1 Prior Notice to the Certificateholders with Respect to Certain Matters . . . . . . . . . . . 12
SECTION 4.2 Action by the Certificateholders with Respect to Certain Matters . . . . . . . . . . . . . . 13
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SECTION 4.3 Action by the Certificateholders with Respect to Bankruptcy . . . . . . . . . . . . . . . . . 13
SECTION 4.4 Rights of the Certificateholders to Direct Owner Trustee . . . . . . . . . . . . . . . . . . 14
SECTION 4.5 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.6 Owner Trustee May Enforce Claims without Possession of the Trust Certificate . . . . . . . . 14
SECTION 4.7 Limitation on Rights of the Certificateholders . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.1 General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.2 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.3 Action upon Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.4 No Duties Except as Specified in this Agreement or in Instructions . . . . . . . . . . . . . 17
SECTION 5.5 No Action Except Under Specified Documents or Instructions . . . . . . . . . . . . . . . . . 18
SECTION 5.6 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
CONCERNING THE OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.1 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.2 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.3 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.4 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.5 Owner Trustee Not Liable for Trust Certificates or Leases . . . . . . . . . . . . . . . . . . 22
SECTION 6.6 Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.1 Owner Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.1 Eligibility Requirements for Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.2 Resignation or Removal of Owner
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.3 Successor Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 8.4 Merger or Consolidation of Owner Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.5 Appointment of Co-Owner Trustee or Separate Owner Trustee . . . . . . . . . . . . . . . . . . 25
ARTICLE IX
TERMINATION OF TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 9.2 Dissolution upon Bankruptcy of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.1 Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 10.3 Merger and Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.7 No Legal Title to Trust Estate in Certificateholders . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.8 Limitation on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 10.11 No Implied Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 10.12 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 10.13 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 10.14 Indemnification by and Reimbursement of the Servicer . . . . . . . . . . . . . . . . . . . . 35
SECTION 10.15 Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Exhibit A Form of Trust Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B Certificate of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
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THIS TRUST AGREEMENT, dated as of November 26, 1996,
between TL LEASE FUNDING CORP. IV, a Delaware corporation (the "Seller"), and
Bankers Trust (Delaware), a Delaware banking corporation, not in its individual
capacity but solely as trustee (together with its permitted successors in the
Trust hereunder, the "Owner Trustee") of the TLFC IV Equipment Lease Trust
1996-1 (the "Trust").
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual agreements, covenants and undertakings herein
contained, the parties intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. For all purposes of
this Agreement, the following terms shall have the meanings set forth below:
"Administration Agreement" means the Administration
Agreement dated as of the date hereof by and between the Trust and the
Administrator, as such agreement may be amended, modified or supplemented from
time to time.
"Administrator" means Trans Leasing International,
Inc., a Delaware corporation, in its capacity as the administrator under the
Administration Agreement or any successor administrator under the
Administration Agreement.
"Agreement" means this Trust Agreement as originally
executed and, if from time to time supplemented or amended by one or more
amendments entered into pursuant to the applicable provisions hereof, as so
supplemented or amended.
"Basic Documents" means this Agreement, the Pooling and
Servicing Agreement, the Indenture, the Contribution and Sale Agreement, the
Administration Agreement, the Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Business Trust Statute" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
amended from time to time.
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"Certificate of Trust" has the meaning set forth in
Section 2.6.
"Certificateholder" means the Person in whose name a
Trust Certificate is issued. The Certificateholders shall initially be the
Seller and, upon the consummation of the transactions contemplated by the
Contribution and Sale Agreement, the Originator.
"Contribution and Sale Agreement" means the Amended and
Restated Contribution and Sale Agreement dated as of the date hereof by and
between the Seller and Trans Leasing International, Inc., as such agreement may
be amended, modified or supplemented from time to time.
"Corporate Trust Office" means the office of the Owner
Trustee located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a
copy to Bankers Trust Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Corporate Trust and Agency Group - Structured Finance; or at such other address
as the Owner Trustee may designate by notice to the Certificateholders and the
Seller, or the principal trust office of any successor Owner Trustee.
"Indenture" means the Indenture, dated as of the date
hereof, between Manufacturers and Traders Trust Company, a banking corporation
organized and existing under the laws of New York, not in its individual
capacity but solely as Indenture Trustee, and the Trust, as such agreement may
be amended, modified or supplemented from time to time.
"Originator" means Trans Leasing International, Inc., a
Delaware corporation, in its capacity as transferor of certain assets pursuant
to the Contribution and Sale Agreement, and its successors.
"Owner Trustee" means Bankers Trust (Delaware), a
Delaware banking corporation, not in its individual capacity but solely as
trustee under this Agreement, until a successor Owner Trustee shall have been
appointed pursuant to the applicable provisions of this Agreement, and
thereafter such successor Owner Trustee.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of the date hereof by and among the Seller, the
Trust and Trans Leasing International, Inc., a Delaware corporation, as
Servicer, as such agreement may be amended, modified or supplemented from time
to time.
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"Trust Certificate" means a certificate evidencing a
beneficial interest in the Trust, executed and delivered by the Owner Trustee
substantially in the form of Exhibit A.
"Trust Estate" means all right, title and interest of
the Trust in and to the property and rights assigned to the Trust pursuant to
the Pooling and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the Pooling
and Servicing Agreement.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined have the meanings assigned to them in the Pooling and Servicing
Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement or in any such certificate or
other document, and accounting terms partly defined in this Agreement or in any
such certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles in effect on the date hereof. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other documents shall control.
(d) The words "hereof," "herein," "hereunder,"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
Section and Exhibit references contained in this Agreement are references to
Sections and Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be
known as "TLFC IV Equipment Lease Trust 1996-1," in which name the Owner
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.2 Office. The office of the Trust shall be
in care of the Owner Trustee at the Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to the
Certificateholders and the Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of
the Trust is to engage in the following activities:
(i) to acquire, manage and hold the
Leases, interests in the related Equipment and other related assets to
be transferred to the Trust from time to time pursuant to the Pooling
and Servicing Agreement;
(ii) to issue the Notes pursuant to the Indenture
and the Trust Certificates pursuant to this Agreement and to deliver
the Notes and the Trust Certificates to or upon the order of the
Seller as described in the Pooling and Servicing Agreement;
(iii) to acquire property and assets from the
Seller pursuant to the Pooling and Servicing Agreement, to make
payments or distributions pursuant to the Basic Documents and to pay
the organizational, start-up and transactional expenses of the Trust;
(iv) to assign, grant, transfer,
pledge, mortgage and convey the Trust Estate pursuant to the Indenture
and to hold, manage and distribute to the Certificateholders pursuant
to the terms of the Pooling and Servicing Agreement any portion of the
Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(v) to enter into and perform its obligations
under the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including
entering into agreements, that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or connected
therewith; and
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(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 and payments to the Certificateholders and the
Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller
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.
SECTION 2.5 Initial Capital Contribution of Trust
Estate. The Seller 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 Seller, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Trust Estate.
The Seller 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 2.6 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 use and benefit of the
Certificateholders, 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, that this Agreement
constitute the governing instrument of such business trust and that the Trust
Certificates represent the equity interests therein. The rights of the
Certificateholders shall be determined as set forth herein and in the Business
Trust Statute. By entering into this Agreement, the parties hereto express
their intention that, for purposes of federal, state and local income and
franchise taxes and any other tax imposed on, measured by or based upon gross
or net income (in the aggregate, "Tax"), the Notes will be treated as
indebtedness and, except to the extent otherwise required by law, (i) each
Noteholder, by acceptance of its Note, agrees to treat the interests evidenced
by the Notes as indebtedness, and further agrees that any Person acquiring an
interest in a Note from or through it may do so only subject to an obligation
to comply with this Agreement as to the treatment of such Note as indebtedness
for Tax purposes, and (ii) the Certificateholders agree to treat the
transactions contemplated by this Agreement as a financing and to include in
the computation of its Tax liabilities all items of
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income, gain, loss, deduction and credit attributable to the ownership of the
Trust Estate, subject to the indebtedness represented by the Notes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth in this Agreement, the Pooling and Servicing Agreement and the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee agrees to file the certificate required under Section 3810
et seq. of the Business Trust Statute (the "Certificate of Trust") in
connection with the formation of the Trust as a business trust under the
Business Trust Statute.
SECTION 2.7 Liability of the Certificateholders. (a)
The Seller shall be liable directly to and will indemnify the Noteholders or
any other injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including expenses, to the extent not paid out of the
Trust Estate) to the extent that the Seller would be liable if the Trust were a
limited partnership under the Delaware Revised Uniform Limited Partnership Act
in which the Seller were a general partner; provided, however, that the Seller
shall not be liable (i) to any Noteholder for any losses incurred by such
Noteholder in the capacity of an investor in the Notes, (ii) to any Person for
any losses incurred by such Person as a result of the fraudulent actions,
misrepresentations or willful misconduct of such Person or (iii) any losses,
claims, damages, liabilities and expenses arising out of the imposition by any
taxing authority of any federal income, state or local income or franchise
taxes, or any other taxes imposed on or measured by gross or net income, gross
or net receipts, capital, net worth and similar items (including any interest,
penalties or additions with respect thereto) upon the Noteholders, the Owner
Trustee or the Indenture Trustee (including any liabilities, costs or expenses
with respect thereto) with respect to any Leases not specifically indemnified
or represented to hereunder. In addition, any third party creditors of the
Trust (other than in connection with the obligations described in the preceding
sentence for which the Seller shall not be liable) shall be deemed third party
beneficiaries of this subsection 2.7(a). The obligations of the Seller under
this subsection 2.7(a) shall be evidenced by the Trust Certificate issued in
the name of the Seller pursuant to Section 3.2. The Trust Certificate issued
to the Seller shall be deemed to be a separate class of Trust Certificates from
all other Trust Certificates issued by the Trust for purposes of the Business
Trust Statute; provided, however, that except as contemplated by this Section
2.7(a), the rights and obligations evidenced by all Trust Certificates shall be
identical.
(b) The Certificateholders (other than, in the case of
the Seller, to the extent set forth in paragraph (a) above)
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shall not have any personal liability for any liability or obligation of the
Trust.
SECTION 2.8 Title to Trust Property. Legal title to
all 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 a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust will be located
and administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware,
the State of Illinois or the State of New York. The Trust shall not have any
employees in any state other than Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments shall be received by the
Trust only in Delaware, Illinois or New York, and payments and distributions
shall be made by the Trust only from Delaware, Illinois or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller is duly organized and validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and to
conduct its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and now has, power,
authority and legal right to acquire and own the Leases contemplated to be
transferred to the Trust pursuant to the Pooling and Servicing Agreement.
(b) The Seller is duly qualified to do business
as a foreign corporation and is 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 shall require such
qualifications.
(c) The Seller has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; the
Seller has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Seller has duly authorized
such sale and assignment and deposit to the Trust by all necessary corporate
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action; the execution, delivery and performance of this Agreement has been duly
authorized by the Seller by all necessary corporate action; and this Trust
Agreement constitutes a legal, valid and binding obligation of Seller,
enforceable in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (whether
considered in a suit at law or in equity).
(d) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under the
Articles of Incorporation or by-laws of the Seller or any indenture, agreement
or other instrument to which the Seller is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Basic Documents); nor violate any law or any order,
rule or regulation applicable to the Seller of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(e) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
Governmental Authority having jurisdiction over Seller or any of its properties
or assets is required to be obtained by or with respect to Seller in connection
with the execution, delivery and performance by Seller of this Trust Agreement
and the consummation of the transactions contemplated herein.
SECTION 2.11 Books and Records; Tax Returns. Except as
otherwise expressly provided in this Agreement, the Owner Trustee shall be
responsible for the keeping of all appropriate books and records relating to
the receipt and disbursement by the Owner Trustee of all monies under this
Agreement or any agreement contemplated hereby. The Owner Trustee shall (a)
maintain (or cause to be maintained) the books of the Trust on a fiscal year
ending June 30 basis on the accrual method of accounting, (b) deliver to each
Certificateholder, as may be required by the Code and applicable regulations
promulgated under the Code or otherwise, such information as may be required to
enable each Certificateholder to prepare its federal income tax return, (c)
file such tax returns relating to the Trust and make such elections as may from
time to time be required or appropriate under any applicable state or federal
statute or rule or regulation
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thereunder so as to maintain the Trust's characterization as a partnership for
federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any applicable
withholding tax. In preparing and filing tax returns for the Trust, the Owner
Trustee shall allocate each item of income, gain, deduction, loss or credit of
the Trust for each Collection Period among the Certificateholders in proportion
to the amount of capital contributions made by each Certificateholder.
SECTION 2.12 Tax Matters. (a) The Trust shall
maintain a separate account (a "Capital Account") for each Certificateholder
according to the rules of U.S. Department of Treasury Regulation Section 1.704-
1(b)(2)(iv). For this purpose, the Trust may, upon the occurrence of the
events specified in U.S. Department of Treasury Regulation Section
1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance
with the rules of such regulation and U.S. Department of Treasury Regulation
Section 1.704(b)(2)(iv)(g)to reflect a revaluation of any of the Trust Estate.
(b) The income, gains, losses, deductions and
credits of the Trust will be allocated, for federal, state and local income tax
purposes, among the Certificateholders in accordance with the allocation of
book profit and loss among the Certificateholders for computing their Capital
Accounts, except that, if any such allocation is not permitted by the Code or
other applicable law, the Trust's subsequent income, gains, losses, deductions
and credits will be allocated among the Certificateholders so as to reflect as
nearly as possible the allocations set forth herein in computing their Capital
Accounts. If there is a net decrease in "partnership minimum gain" or "partner
nonrecourse minimum gain," allocations of income will be made to chargeback the
minimum gain to the Certificateholders in accordance with U.S. Department of
Treasury Regulation Section 1-704-2(f) and U.S. Department of Treasury
Regulation Section 1.704-2(i)(4).
SECTION 2.13 Signature on Returns; Tax Matters
Partner. The Owner Trustee shall sign on behalf of the Trust any and all tax
returns of the Trust, unless applicable law requires a Certificateholder to
sign such documents, in which case such documents shall be signed by the
Originator. The Originator shall be the "tax matters partner" of the Trust
pursuant to the Code. It is the express intent of the parties hereto and the
Certificateholders that the Trust be treated as a partnership for federal
income tax purposes, and none of the parties hereto or the Certificateholders
will take any actions inconsistent therewith.
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ARTICLE III
THE TRUST CERTIFICATES
SECTION 3.1 The Trust Certificates. The Trust
Certificates shall be substantially in the form of Exhibit A. The Trust
Certificates shall represent the entire beneficial interest in the Trust. By
accepting a Trust Certificate, the holder thereof agrees to be bound by the
provisions hereof and assumes the rights and obligations of a Certificateholder
hereunder. The right to receive payments with respect to the Trust
Certificates is subordinated to the prior payment in full of all amounts of
principal and interest on the Notes as set forth in the Indenture and the
Pooling and Servicing Agreement.
SECTION 3.2 Execution and Delivery. On the Closing
Date, concurrently with the initial sale, transfer and assignment of Leases,
interests in the related Equipment and the other related assets to the Trust
pursuant to the Pooling and Servicing Agreement, the Owner Trustee shall cause
a Trust Certificate or Trust Certificates to be executed on behalf of the Trust
and delivered to or upon the written order of the Seller. Each such Trust
Certificate shall be executed by the Owner Trustee on behalf of the Trust by
the manual signature of an Authorized Officer of the Owner Trustee. Signatures
of individuals on any Trust Certificate who were at the time the proper
officers or authorized signatories of the Owner Trustee shall bind the Trust,
notwithstanding that such individuals or any of them have ceased to hold such
offices or positions prior to the delivery of such Trust Certificate or did not
hold such offices or positions at the date of such Trust Certificate. Each
Trust Certificate shall be dated the date of its execution.
SECTION 3.3 Mutilated, Destroyed, Lost or Stolen Trust
Certificate.
(a) If (i) a Trust Certificate is mutilated and
is surrendered to the Owner Trustee, or the Owner Trustee receives evidence to
its satisfaction of the destruction, loss or theft of a Trust Certificate and
(ii) there is delivered to the Owner Trustee and the Trust such security or
indemnity as may be required by the Owner Trustee to hold it harmless, then,
the Owner Trustee shall execute on behalf of the Trust and the Owner Trustee
shall deliver in exchange for or in lieu of the mutilated, destroyed, lost or
stolen Trust Certificate, a replacement Trust Certificate.
(b) In connection with the issuance of a
replacement Trust Certificate under this Section 3.3, the Owner
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Trustee may require the payment by the Certificateholder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Owner Trustee) connected therewith.
(c) A duplicate Trust Certificate issued pursuant
to this Section 3.3 in replacement of a mutilated, destroyed, lost or stolen
Trust Certificate shall constitute the beneficial interest in the Trust and
shall be entitled to all the benefits of this Agreement to which the mutilated,
destroyed, lost or stolen Trust Certificate was entitled, whether or not such
Trust Certificate shall be found at any time thereafter. If the original Trust
Certificate is found subsequent to the issuance of a duplicate Trust
Certificate therefor, it shall be cancelled by the Owner Trustee.
(d) The provisions of this Section 3.3 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of the mutilated,
destroyed, lost or stolen Trust Certificate.
SECTION 3.4 Limitation on Transfer. Following the
transfer of a portion of the original Trust Certificate from the Seller to the
Originator as contemplated by the Contribution and Sale Agreement, Trust
Certificates shall not be transferable, and each of the Seller and the
Originator, by accepting a Trust Certificate, agrees that it shall not assign
any of its interest in a Trust Certificate to any Person; provided, that the
Seller and the Originator may pledge their rights to distributions with respect
to a Trust Certificate. Any transfer of a Trust Certificate in violation of
the foregoing shall be null and void and of no effect.
SECTION 3.5 Acts of the Certificateholders and
Noteholders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by the Certificateholders or Noteholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by the
Certificateholders or Noteholders in person or by agent duly appointed in
writing; and except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Owner
Trustee. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Owner Trustee, the Certificateholders and the
Administrator, if made in the manner provided in this Section.
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(b) The fact and date of the execution by the
Certificateholders or any Noteholder of any such instrument or writing may be
proved in any reasonable manner which the Owner Trustee deems sufficient.
(c) The ownership of Notes shall be proved by
the Note Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other act by a Noteholder shall bind
every holder of every Note issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done or omitted
to be done by the Owner Trustee, the Certificateholders or the Administrator in
reliance thereon, whether or not notation of such action is made upon such
Note.
(e) Except as expressly provided herein, any
request, demand, authorization, direction, notice, consent, waiver or other
action that may be taken or given by the Certificateholders under this
Agreement or the other Basic Documents shall be effective if taken or given by
the Certificateholders representing a majority of the beneficial interests in
the Trust.
(f) The Owner Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
SECTION 3.6 Distributions to the Certificateholders.
The Owner Trustee, by executing this Agreement, is deemed to have instructed
the Indenture Trustee to distribute directly to the Certificateholders (pro
rata according to their respective beneficial interests in the Trust) amounts
as and when described in Article IV and Section 8.1(b) of the Pooling and
Servicing Agreement.
ARTICLE IV
ACTIONS BY THE OWNER TRUSTEE
SECTION 4.1 Prior Notice to the Certificateholders
with Respect to Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless, at least 30 days before the taking
of such action, the Owner Trustee shall have notified the Certificateholders in
writing of the proposed action and the Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given
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that the Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the
Trust (except claims or lawsuits brought in connection with the collection of
the Leases) 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 on Leases);
(b) the election by the Trust to file an
amendment to the Certificate of Trust, a conformed copy of which is attached
hereto as Exhibit B;
(c) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any Noteholder is
required;
(d) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the interest of
the Certificateholders;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner that would not materially adversely affect
the interests of the Certificateholders; and
(f) the appointment pursuant to the Indenture of
a successor Note Registrar, Paying Agent or Indenture Trustee, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of
its obligations under the Indenture, as applicable.
SECTION 4.2 Action by the Certificateholders with
Respect to Certain Matters. The Owner Trustee shall not have the power,
except upon the written direction of the Certificateholders, to (a) remove the
Administrator under the Administration Agreement pursuant to Section 10
thereof, (b) appoint a successor Administrator pursuant to Section 10(e) of the
Administration Agreement, (c) remove the Servicer under the Pooling and
Servicing Agreement pursuant to Section 7.1(b) thereof, or (d) except as
expressly provided in the Basic Documents, sell the Leases transferred to the
Trust pursuant to the Pooling and Servicing Agreement or any interest therein
after the termination of the Indenture.
SECTION 4.3 Action by the Certificateholders with
Respect to Bankruptcy. The Owner Trustee shall not have the power to commence
a voluntary proceeding in bankruptcy relating to the
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Trust without the prior approval of the Certificateholders and the delivery to
the Owner Trustee by the Certificateholders of a certificate certifying that
the Certificateholders reasonably believe that the Trust is insolvent.
SECTION 4.4 Rights of the Certificateholders to Direct
Owner Trustee. The Certificateholders shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Owner Trustee, or exercising any trust or power conferred on the Owner Trustee;
provided, however, that, the Owner Trustee shall have the right to decline to
follow any such direction if the Owner Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken, or if the
Owner Trustee in good faith determines that the action so directed would be
illegal or involve it in personal liability; and provided, further that nothing
in this Agreement shall impair the right of the Owner Trustee to take any
action deemed proper by the Owner Trustee and which is not inconsistent with
such direction by the Certificateholders.
SECTION 4.5 Suits for Enforcement. The Owner Trustee,
in its discretion may, subject to the provisions of this Article IV, proceed to
protect and enforce its rights and the rights of the Certificateholders under
this Agreement by a suit, action or proceeding in equity or at law or
otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any power granted in
this Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Owner Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Owner Trustee or the
Certificateholders.
SECTION 4.6 Owner Trustee May Enforce Claims without
Possession of the Trust Certificate. All rights of action and claims under
this Agreement or the Trust Certificate may be prosecuted and enforced by the
Owner Trustee without the possession of the Trust Certificate or the production
thereof in any proceeding relating thereto, and any such proceedings instituted
by the Owner Trustee shall be brought in its own name or in its capacity as
Owner Trustee. Any recovery of judgment shall, after provision of or the
payment of the reasonable compensation, expenses, disbursements and advances of
the Owner Trustee, its agents and counsel, be for the ratable benefit of the
Certificateholders in respect of which such judgment has been recovered.
SECTION 4.7 Limitation on Rights of the
Certificateholders. (a) The Certificateholders shall not direct the Owner
Trustee to take or refrain from taking any action if such
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action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the Basic Documents or would be
contrary to Section 2.3, nor shall the Owner Trustee be obligated to follow any
such direction, if given.
(b) Except as provided herein, the
Certificateholders shall not have the right to vote or in any manner otherwise
control the operation and management of its interest or the obligations of the
parties hereto.
(c) The Certificateholders shall not have the
right by virtue or by availing itself of any provisions of this Agreement to
institute any suit, action, or proceeding in equity or at law upon or under or
with respect to this Agreement on behalf of the Trust, unless the
Certificateholders previously shall have given to the Owner Trustee a written
notice of default and of the continuance thereof as hereinbefore provided, and
unless the Certificateholders shall have made written request upon the Owner
Trustee to institute such action, suit or proceeding on behalf of the Trust or
in its own name as Owner Trustee hereunder and shall have offered to the Owner
Trustee such reasonable indemnity as the Owner Trustee may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and the
Owner Trustee, for 30 days after its receipt of such notice, request, and offer
of indemnity, shall have neglected or refused to institute any such actions,
suit, or proceeding; it being understood and intended, and being expressly
covenanted by the Certificateholders and the Owner Trustee, that the
Certificateholders shall not have the right in any manner whatever by virtue or
by availing itself of any provisions of this Agreement to enforce any right
under this Agreement, except in the manner herein provided. For the protection
and enforcement of the provisions of this Section, the Certificateholders and
the Owner Trustee shall be entitled to such relief as can be given either at
law or in equity.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Seller shall have approved as
evidenced conclusively by the Owner Trustee's execution thereof.
Notwithstanding the foregoing, the Owner Trustee is authorized, but shall not
be obligated, to take any or all actions required of the
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Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Administrator recommends with
respect to the Basic Documents. The Owner Trustee acknowledges that actions to
be taken by the Issuer (including under the Indenture) may be taken by the
Administrator in accordance with the Administration Agreement.
SECTION 5.2 General Duties of Owner Trustee. (a)
The Owner Trustee undertakes to perform such duties, and only such duties, as
are specifically set forth in this Agreement and, as trustee of the Trust, such
duties as are specifically set forth for the Trust in the other Basic
Documents, including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement, including Section 5.2(b).
(b) Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and, as trustee of the Trust, the duties and responsibilities of the
Trust under the Basic Documents to the extent the Administrator has agreed in
the Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or of the Trust under any Basic Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the
Owner Trustee may conclusively rely upon certificates or opinions furnished to
the Owner Trustee and conforming to the requirements of this Agreement in
determining the truth of the statements and the correctness of the opinions
contained therein; provided, however, that the Owner Trustee shall have
examined such certificates or opinions so as to determine compliance of the
same with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) this subsection 5.2(d) shall not limit the effect of
subsection 5.2(a) or (b);
(ii) the Owner Trustee shall not be liable for any error
of judgment made in good faith unless it is proved that the Owner
Trustee was negligent in ascertaining the pertinent facts; and
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(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 4.1, 4.2 or 5.4.
(e) Subject to the Pooling and Servicing Agreement,
monies received by the Owner Trustee hereunder need not be segregated in any
manner except to the extent required by law or the Pooling and Servicing
Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.3 Action upon Instruction. (a) Subject to
Article IV, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any 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 Basic
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders 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 Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction from the
Certificateholders within 10 days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 5.4 No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall not have any duty or
obligations to manage, make any payment with respect to, register, record,
sell, dispose of or otherwise deal with the Trust
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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 in any
document or written instruction received by the Owner Trustee pursuant to
Section 5.3; and no implied duties or obligations shall be read into this
Agreement or any Basic Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
record this Agreement or any Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Estate that
result from actions by, or claims against, the Owner Trustee in its individual
capacity.
SECTION 5.5 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6 Restrictions. The Owner Trustee shall not
take any action that is inconsistent with the purposes of the Trust set forth
in Section 2.3. or would, to the actual knowledge of an Authorized Officer of
the Owner Trustee, result in the Trust's becoming taxable as a corporation for
federal income tax purposes.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trusts and Duties. The Owner
Trustee accepts the Trust hereby created and agrees to perform its duties
hereunder with respect to the Trust but only upon the express terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Estate upon the terms of the
Basic Documents and this Agreement. The Owner Trustee shall not be answerable
or accountable in its individual capacity hereunder or under any 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 6.3. In
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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 an Authorized Officer of the Owner Trustee absent willful
misconduct or negligence by such officer;
(b) the Owner Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Certificateholders;
(c) no provision of this Agreement or any 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 for any
amounts due with respect to the Trust Certificate;
(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 Seller 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, other than the
certificate of authentication on the Trust Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to any
Noteholder or to the Certificateholders, other than is expressly provided for
herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default
or misconduct of the Seller, the Indenture Trustee, the Administrator or the
Servicer or any other Person under any of the Basic Documents or otherwise;
(g) the Owner Trustee shall not be liable for, and shall
have no obligation or responsibility for, advising any Certificateholder of
changes under the Business Trust Statute; and
(h) 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
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Basic Document, at the request, order or direction of the Certificateholders,
unless the Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to the Owner Trustee 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 Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 6.2 Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents, and the Owner Trustee shall
furnish to the Noteholders and the Certificateholders, promptly upon receipt of
a written request therefor, copies of the Pooling and Servicing Agreement, the
Administration Agreement, and this Agreement.
SECTION 6.3 Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, 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 and the other Basic Documents to which the
Trust is a party.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement and such other
Basic Documents to which the Trust is a party, and this Agreement and such
other documents will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and such other documents
on its behalf.
(c) None of (i) the execution nor the delivery by it of
this Agreement and the other Basic Documents to which the Trust is a party,
(ii) the consummation by it of the transactions contemplated hereby or thereby
or (iii) compliance by it with any of the terms or provisions hereof or thereof
will contravene or violate its charter or bylaws or any federal or state law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it or constitute any default
under its charter documents or by-laws.
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(d) The execution, delivery and performance by the Owner
Trustee of this Agreement shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of any Governmental Authority regulating
the banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed other than the filing of the
Certificate of Trust.
(e) This Agreement has been duly executed and delivered
by the Owner Trustee and constitutes the legal, valid and binding agreement of
the Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
SECTION 6.4 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 the determination of
which is not specifically prescribed herein, the Owner Trustee may, for all
purposes hereof, rely on a certificate, signed by the President or any Vice
President or by the Treasurer or Chief Financial Officer or other authorized
officer of the relevant party, as to such fact of 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 Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys, pursuant to agreements entered into with any of them,
including, without limitation, the power of attorney from the Owner Trustee to
certain officers of Bankers Trust Company, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner 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
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liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Basic Document.
SECTION 6.5 Owner Trustee Not Liable for Trust
Certificates or Leases. (a) Except as specifically set forth in Section 6.3,
the Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement, any other Basic Document or of the Trust Certificates (other
than its execution thereof) or of any Lease or related document.
(b) The Owner Trustee shall have no responsibility for or
with respect to (i) the Leases, including, without limitation the validity of
any security interest in any Lease, the perfection of any such security
interest (whether as of the date hereof or at any future time), the maintenance
of or the taking of any action to maintain such perfection, the existence or
validity of any Lease, the validity of the assignment of any Lease to the Trust
or of any intervening assignment, the review of any Lease, the completeness of
any Lease, the performance or enforcement of any Lease and the existence and
enforceability of any insurance thereon, (ii) the compliance by the Servicer,
the Administrator, the Seller or the Indenture Trustee with any covenant,
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, the acts or
omissions of the Servicer, the Seller, the Indenture Trustee or any Lessee, any
action of the Servicer taken in the name of the Owner Trustee or the Trust or
any action by the Owner Trustee taken at the instruction of the Servicer or
(iii) the preparation or filing of financing statements, or the payment of any
amounts with respect to liens, in connection with this Agreement, the Leases or
any of the transactions contemplated hereby. No recourse shall be had for any
claim based on any provision of this Agreement, the Basic Documents, the Trust
Certificates or any Lease or assignment thereof against Bankers Trust
(Delaware) in its individual capacity, and Bankers Trust (Delaware) shall not
have any personal obligation, liability or duty whatsoever to the
Certificateholders or any other Person with respect to any such claim, and any
such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided herein, except for such liability as is
finally determined to have resulted from its own gross negligence or willful
misconduct.
SECTION 6.6 Not Acting in Individual Capacity. In
accepting the trusts hereby created, the Owner Trustee acts in its individual
capacity. In the performance of its duties as Owner Trustee hereunder and
under any document authorized hereby, the Owner Trustee acts solely as trustee
hereunder and not in its
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individual capacity, except to the extent expressly agreed otherwise, and all
Persons, other than the Certificateholders as provided herein, having any claim
against the Owner Trustee by reason of the transactions contemplated hereby
shall look only to the Trust Estate for payment or satisfaction thereof, except
to the extent, if any, the Owner Trustee shall expressly agree otherwise in any
Basic Document to which it is a party.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1 Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Servicer
and the Owner Trustee, and 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, custodians,
nominees, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder. Such fees and expenses shall be paid as provided for in Section 3.9
of the Pooling and Servicing Agreement.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 8.1 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times satisfy the requirements of Section
26(a)(1) of the Investment Company Act. The Owner Trustee shall at all times:
(a) be a corporation satisfying the provisions of Section 3807(a) of the
Business Trust Statute; (b) be authorized to exercise corporate trust powers;
(c) have an aggregate capital, surplus and undivided profits of at least
$50,000,000; and (d) be subject to supervision or examination by federal or
state authorities. 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 8.1,
the aggregate capital, surplus and undivided profits of such corporation shall
be deemed to be its aggregate capital, surplus and undivided profits as set
forth in its most recent report of condition so published. If at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.1, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 8.2.
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SECTION 8.2 Resignation or Removal of Owner Trustee. (a)
The Owner Trustee may at any time give notice of its intent to resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Administrator; provided that no such resignation shall become effective,
and the Owner Trustee shall not resign, prior to the time set forth in Section
8.2(c). The Administrator may appoint a successor Owner Trustee by delivering
written instrument, in duplicate, to the resigning Owner Trustee and the
successor Owner Trustee. If no successor Owner Trustee shall have been
appointed and have accepted appointment within 30 days after the giving of such
notice, the resigning Owner Trustee giving such notice may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
The Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible
in accordance with the provisions of Section 8.1 and shall fail to
resign after written request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt
or insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation; or
(iv) the Owner Trustee shall otherwise be
incapable of acting.
(b) If the Owner Trustee resigns or is removed, or if a
vacancy exists in the office of Owner Trustee for any reason, 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.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section 8.2 shall not become effective, and no such resignation shall be
deemed to have occurred, until a written acceptance of appointment is delivered
by the successor Owner Trustee to the outgoing Owner Trustee and the
Administrator and all fees and expenses due to the outgoing Owner Trustee are
paid. The Administrator shall provide notice of such resignation or removal of
the Owner Trustee to the Rating Agencies.
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(d) 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. 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.
SECTION 8.3 Successor Owner Trustee. (a) Any successor Owner
Trustee appointed as provided in Section 8.2 shall execute, acknowledge and
deliver to the Seller and to its predecessor Owner Trustee an instrument
accepting such appointment hereunder, 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
hereunder, with like effect as if originally named as Owner Trustee.
(b) No successor Owner Trustee shall accept appointment
as provided in this Section 8.3 unless, at the time of such acceptance, such
successor Owner Trustee shall be eligible under the provisions of Section 8.1.
(c) Upon acceptance of appointment by a successor Owner
Trustee as provided in this Section 8.3, the successor Owner Trustee shall mail
notice of such succession to the Indenture Trustee and the Certificateholders
at the addresses shown in Section 10.2 of this Agreement.
SECTION 8.4 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 for the Owner Trustee hereunder,
provided such Person shall be eligible under the provisions of Section 8.1,
without the execution or filing of any paper or any further act on the party of
any of the parties hereto.
SECTION 8.5 Appointment of Co-Owner Trustee or Separate
Owner Trustee. (a) 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 Lease may at the time
be located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one
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or more Persons approved by the Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or 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 Estate, 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 receipt by it of a request so to do, the Owner Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 8.1, and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 8.3.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred 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 or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other
trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its
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acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
(d) 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 trustee.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination.
(a) The Trust shall terminate on the date (the "Trust
Termination Date") on which the first of the following occurs: (i) the
termination of the Pooling and Servicing Agreement as provided in Section
8.1(c) thereof or (ii) at the time provided in Section 9.2. This Agreement
and the obligations of the parties hereunder (other than Section 7.1 and 7.2
hereof and as otherwise expressly provided herein) shall terminate and be of no
further force or effect (i) if the Trust Termination Date is determined
pursuant to clause (i) above, on the Trust Termination Date, or (ii) if the
Trust Termination Date is determined pursuant to clause (ii) above, at the time
provided in Section 9.2.
(b) The bankruptcy liquidation or dissolution of any
Certificateholder (other than the Seller as described in Section 9.2) shall not
(i) operate to terminate this Agreement or the Trust, (ii) entitle such
Certificateholder's legal representatives or successors to claim an accounting
or take any action or proceeding in any court for a partition or winding up of
all or any part of the Trust or the Trust Estate or (iii) otherwise effect the
rights, obligations or liabilities of the parties hereto. Neither the Seller
nor the Certificateholders shall be entitled to revoke
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or terminate the Trust, nor shall the Trust be terminated, except as provided
in Section 9.1(a).
(c) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled 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 9.2 Dissolution upon Bankruptcy of the Seller.
In the event that any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceeding, voluntary or involuntary, under any
federal or state bankruptcy or similar law (each, an "Insolvency Event") shall
occur with respect to the Seller, the Trust shall terminate, subject to the
liquidation, winding-up and dissolution procedures described below and subject
to the continuation and reconstitution of the Trust as described below, and
provided that the rights and obligations of the parties to this Agreement shall
not terminate during such liquidation, winding-up and dissolution. Promptly
after the occurrence of any Insolvency Event with respect to the Seller: (i)
the Seller shall give the Indenture Trustee and the Owner Trustee written
notice of such Insolvency Event; (ii) the Owner Trustee shall, upon the receipt
of such written notice, give prompt written notice to the Indenture Trustee and
the other Certificateholders (other than the Seller) of the occurrence of such
event; and (iii) the Indenture Trustee shall, upon receipt of written notice of
such Insolvency Event, give prompt written notice to the Noteholders of the
occurrence of such event; provided, however, that any failure to give a notice
required by this sentence shall not prevent or delay in any manner a
termination of the Trust pursuant to the first sentence of this Section 9.2.
Ninety days after the date the Seller gives the notice described in the
preceding sentence, unless the Owner Trustee shall have received written
instructions from the Noteholders owning Class A Notes representing more than
50% of the outstanding principal balance of the Class A Notes, from Noteholders
owning Class B Notes representing more than 50% of the outstanding principal
balance of the Class B Notes and from Certificateholders (other than the
Seller) representing more than 50% of the beneficial interests in the Trust
(excluding the Seller) to the effect that each such party disapproves of the
liquidation of the assets held by the Trust and the termination of the Trust
and wishes to continue and reconstitute the Trust pursuant to terms
corresponding to the terms of this Agreement, the Owner Trustee shall direct
the Indenture Trustee promptly to sell, dispose or otherwise liquidate the
assets of the Trust in a commercially reasonable manner and on commercially
reasonable terms (which may include continuing to hold the Leases and receiving
collections thereon). The proceeds of any such sale, disposition or
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liquidation shall be treated as collections on the Leases under the Pooling and
Servicing Agreement and deposited in the Collection Account, and thereupon this
Agreement and the respective obligations and responsibilities of the Seller,
the Servicer, the Owner Trustee and the Indenture Trustee shall terminate
(except as otherwise expressly provided herein).
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Supplements and Amendments.
(a) This Agreement may be amended from time to time by the
Owner Trustee and the Seller, without the consent of any of the Noteholders or
any Certificateholder, to (i) cure any ambiguity, (ii) correct or supplement
any provisions herein that may be defective or inconsistent with any other
provisions herein, (iii) add or supplement any liquidity, credit or other
enhancement arrangement for the benefit of any Noteholders (provided that if
any such addition shall affect any class of Noteholders differently than any
other class of Noteholders, then such addition shall not, as evidenced by an
opinion of counsel for the Seller or the Administrator, adversely affect in any
material respect the interests of any series of Noteholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner Trustee for
the benefit of the Noteholders, (v) evidence and provide for the acceptance of
the appointment of a successor trustee with respect to the Trust Estate and add
to or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VIII or (vi) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an opinion of counsel
for the Seller or the Administrator, adversely affect in any material respect
the interests of the Noteholders.
(b) This Agreement may also be amended from time to time
by the Seller and the Owner Trustee, with the consent of the Certificateholders
and the consent of Noteholders owning a majority in principal amount of the
Notes outstanding as of the close of business on the preceding Payment Date
(which consent shall be obtained by the Indenture Trustee as provided in
Section 11.3 of the Indenture, and which consent, whether given pursuant to
this Section 10.1 or pursuant to any other provision of this Agreement, shall
be conclusive and binding on such Person and on all future holders of such
Notes and of any Notes issued upon the transfer thereof or in exchange thereof
or in lieu thereof whether or not notation of such consent is made upon the
Notes), for the purpose
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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
Certificateholders or the Noteholders; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections on Leases or payments that are
required to be made on any Note, (ii) adversely effect the rating of any class
of Notes without the consent of Noteholders owning a majority in principal
amount of such class of Notes as of the close of business on the preceding
Payment Date or (iii) reduce the aforesaid percentage of Note principal balance
required to consent to any such amendment, without the unanimous consent of the
Noteholders.
(c) 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 if and as required by the Business Trust
Statute.
(d) It shall not be necessary for the consent of the
Noteholders or the Certificateholders under this Section 10.1 to approve the
particular form of any proposed amendment, 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 by the
Noteholders or the Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(e) The Owner Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
(f) Upon the execution of any amendment to this
Agreement, this Agreement shall be modified in accordance therewith, and such
amendment shall form a part of this Agreement for all purposes; and every
holder of a Trust Certificate theretofore or thereafter executed and delivered
hereunder shall be bound thereby.
(g) In connection with any amendment pursuant to this
Section 10.1 the Owner Trustee shall be entitled to receive an opinion of
counsel to the Seller or the Administrator acceptable to the Owner Trustee to
the effect that such amendment is authorized or permitted by the Agreement.
SECTION 10.2 Notices. All demands, communications and
notices pursuant hereto to the Certificateholders, the Seller, the
Administrator, the Owner Trustee or the Indenture Trustee shall be in writing
and delivered or mailed to it at the following address:
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If to the Certificateholders:
To the Seller at the address set forth below for the Seller
and to the Originator at:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller:
TL Lease Funding Corp. IV
Corporate Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrator:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Owner Trustee:
Bankers Trust (Delaware)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Group-
Structured Finance
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee or to the Noteholders:
Manufacturers and Traders Trust Company
▇▇▇ ▇&▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the party may designate by notice to the other
parties hereto, which shall be effective when received.
Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage prepaid, at the
address as shown in this Section 10.2. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholders receives such notice.
SECTION 10.3 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived, or supplemented except as
provided herein.
SECTION 10.4 Headings. The headings of the various
Articles and Sections herein and the Table of Contents are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION 10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO THE PRINCIPLES OF
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CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 10.6 Counterparts. This Agreement may be executed
in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 10.7 No Legal Title to Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to its ownership interest only in accordance with
Section 3.6 and Article IX. No transfer, by operation of law or otherwise, of
any right, title or interest of the Certificateholders to and in its ownership
interest in the Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Trust Estate.
SECTION 10.8 Limitation on Rights of Others. Except for
the terms of Section 2.7 and 10.1, nothing in this Agreement, whether express
or implied, shall be construed to give to any Person other than the Owner
Trustee, the Seller and the Certificateholders any legal or equitable right,
remedy or claim under or in respect of this Trust Agreement or any covenants,
conditions or provisions contained herein. Such covenants, conditions and
provisions are, and shall be held to be, for the sole and exclusive benefit of
the Owner Trustee, the Seller and the Certificateholders.
SECTION 10.9 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of any
provision in any other Basic Document, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The provisions of this
Agreement shall remain valid and enforceable notwithstanding the invalidity,
unenforceability, impossibility or illegality of performance of any Basic
Document.
SECTION 10.10 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Owner Trustee, the Seller and the Certificateholders and their respective
successors and assigns.
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Any request, notice, direction, consent, waiver or other instrument or action
by the Certificateholders shall bind its successors and assigns.
SECTION 10.11 No Implied Waiver. No term or provision of
this Agreement may be changed, waived, discharged or terminated orally, but
only by an instrument in writing entered into as provided in Section 10.1
hereof; and any such waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
SECTION 10.12 No Petition. Notwithstanding any prior
termination of this Agreement, the Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, and the
Certificateholders, by accepting the Trust Certificates, shall not, prior to
the date which is one year and one day after the final distribution with
respect to (i) the Notes, (ii) the 1995-1 Notes (as defined in the Pooling and
Servicing Agreement) and (iii) any other indebtedness of the Trust, the Seller
or any other trust formed by the Seller permitted under Section 2.7(l) of the
Pooling and Servicing Agreement, acquiesce, petition or otherwise invoke or
cause the Seller or the Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or the Trust under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Trust or any
substantial part of its property or ordering the winding up or liquidation of
the affairs of the Seller or the Trust.
SECTION 10.13 No Recourse. Each of the Certificateholders,
by accepting a Trust Certificate, acknowledges that such Trust Certificate
represents a beneficial interest in the Trust only and does not represent
interests in or obligations of the Seller, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Trust Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents, none of the
Seller, the Administrator or the Owner Trustee, in their respective individual
capacities, or any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, or shall recourse be had to any of them for, the distribution of
any amounts owed the Certificateholders with respect to or interest on, or
performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in the Trust Certificates or this Agreement, it
being expressly understood that said
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covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee. Each of the Certificateholders, by the acceptance
of a Trust Certificate (or beneficial interest therein), understand that
recourse for amounts payable with respect to such Trust Certificate is limited
to and payable only out of the Trust Estate, and the Certificateholders agrees
that, except as expressly provided in the Basic Documents, in the case of
nonpayment of any amounts with respect to a Trust Certificate, it shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom.
SECTION 10.14 Indemnification by and Reimbursement of the
Servicer. The Owner Trustee acknowledges and agrees to reimburse the Servicer
and its directors, officers, employees and agents in accordance with Section
6.1(b) of the Pooling and Servicing Agreement. The Owner Trustee further
acknowledges and accepts the conditions and limitations with respect to the
Servicer's obligation to indemnify, defend and hold the Owner Trustee harmless
as set forth in Section 6.2 of the Pooling and Servicing Agreement.
SECTION 10.15 Confidential Information. The Owner Trustee
agrees that it shall neither use nor disclose to any Person the names and
addresses of the Lessees or the vendors of the Equipment, except in connection
with the enforcement of the Trust's rights under the Pooling and Servicing
Agreement, under the Indenture or under the Receivables or as required by law.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
this 26th day of November, 1996.
TL LEASE FUNDING CORP. IV
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Finance
and Secretary
Bankers Trust (Delaware),
not in its individual capacity
but solely as Owner Trustee of
TLFC IV EQUIPMENT LEASE TRUST 1996-1
By:
--------------------------------
Name:
Title:
41
EXHIBIT A
FORM OF TRUST CERTIFICATE
Form of Face of Trust Certificate
TLFC IV EQUIPMENT LEASE TRUST 1996-1
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
AN INTEREST IN TRANS LEASING INTERNATIONAL, INC., TL LEASE FUNDING CORP. IV,
BANKERS TRUST (DELAWARE) OR ANY AFFILIATES THEREOF.
THIS TRUST CERTIFICATE IS NON-TRANSFERABLE.
No. RC-__
This certifies that ___________________________ is the
registered owner of a _____________ (_____%) beneficial interest in the TLFC IV
Equipment Lease Trust 1996-1 (the "Trust"). The Trust Estate held by the Trust
includes among its assets a pool of leases (the "Leases"), the related
equipment (or a security interest therein) and Collections thereon. The Trust
has been created pursuant to a Trust Agreement dated as of November 26, 1996
(the "Trust Agreement") between TL Lease Funding Corp. IV, a Delaware
corporation, and Bankers Trust (Delaware), a Delaware banking corporation, not
in its individual capacity but solely as Owner Trustee (herein, together with
its permitted successors in the trusts hereunder, called the "Owner Trustee").
This Trust Certificate is a Trust Certificate described in the
Trust Agreement and is issued pursuant and subject to the Trust Agreement. By
acceptance of this Trust Certificate, the holder (the "Certificateholder")
assents to and becomes bound by the Trust Agreement. To the extent not defined
herein, all capitalized terms have the meanings assigned to them in the Trust
Agreement.
Distributions on this Trust Certificate will be made in
accordance with the terms of the Pooling and Servicing Agreement and the Trust
Agreement by wire transfer to a bank account previously identified by the
Certificateholder, without the presentation or surrender of this Trust
Certificate or the making of any notation hereon.
Reference is hereby made to the further provisions of the
Trust Certificate set forth on the reverse hereof, which further provisions
shall have the same effect as if set forth at this place.
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The holder hereof, by its acceptance of this Trust
Certificate, agrees that it will look solely to the funds in the Trust Estate
to the extent available for distribution to the holder hereof as provided in
the Pooling and Servicing Agreement for payment hereunder and that the Owner
Trustee in its individual capacity is not personally liable to the holder
hereof for any amounts payable under the Trust Certificate, the Trust Agreement
or the Pooling and Servicing Agreement or, except as expressly provided in the
Trust Agreement, subject to any liability under the Trust Agreement or any
Basic Document.
This Trust Certificate does not purport to summarize the Trust
Agreement and reference is made to the Trust Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
Copies of the Trust Agreement and all amendments thereto will be provided to
the Certificateholder free of charge upon a written request to the Owner
Trustee.
IN WITNESS WHEREOF, the Trust has caused this Trust
Certificate to be duly executed by an Authorized Officer of the Owner Trustee.
Date: _________ __, ____ TLFC IV EQUIPMENT LEASE TRUST
1996-1
By: Bankers Trust (Delaware), not
in its individual capacity but
solely as Owner Trustee
By:___________________________
Authorized Officer
2
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Form of Reverse of Trust Certificate
This Trust Certificate represents a ________________ (___%)
beneficial interest in the Trust. This Trust Certificate is limited in right
of payment to certain collections respecting the Leases and related assets, all
as more specifically set forth herein and in the Trust Agreement and the
Pooling and Servicing Agreement. This Trust Certificate is not insured or
guaranteed by any person or governmental agency.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholder under the Trust Agreement from time to
time by the Owner Trustee and the Seller with the consent of Noteholders owning
a majority in principal amount of the Notes outstanding. Any such consent by
the Noteholders shall be conclusive and binding on the Noteholders and on all
future holders of such Notes. The Trust Agreement also permits, with certain
exceptions therein provided, the amendment thereof, and the modification of the
rights and obligations of the Certificateholders under the Trust Agreement from
time to time by the Owner Trustee and the Seller without the consent of the
Noteholders.
As provided for in the Trust Agreement, following the transfer
of a portion of the original Trust Certificate from the Seller to the
Originator as contemplated by the Contribution and Sale Agreement, Trust
Certificates shall not be transferable and each Certificateholder, by accepting
a Trust Certificate, agrees that it shall not assign any of its interest in a
Trust Certificate to any Person.
The holder hereof, by its acceptance of this Trust
Certificate, covenants that, notwithstanding any prior termination of rights
pursuant to the Trust Agreement or this Certificate, they will not, prior to
the date which is one year and one day after the final distribution with
respect to (i) the Notes, (ii) the 1995-1 Notes (as defined in the Pooling and
Servicing Agreement), and (iii) any other indebtedness of the Trust, the Seller
or any other trust formed by the Seller as permitted under Section 2.7(l) of
the Pooling and Servicing Agreement, acquiesce, petition or otherwise invoke or
cause the Seller or the Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or the Trust under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Trust or any
substantial part of its property or ordering the winding up or liquidation of
the affairs of the Seller or the Trust.
As provided in the Trust Agreement, the Owner Trustee shall
establish reasonable procedures to replace the Trust
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Certificate in the event the Trust Certificate is mutilated, destroyed, lost or
stolen.
The Owner Trustee and any agent of the Owner Trustee may treat
the person in whose name this Trust Certificate is registered as the owner
hereof for all purposes, and neither the Owner Trustee nor any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust
Agreement (other than Article VII) and the Trust created thereby shall
terminate as provided in Article IX of the Trust Agreement.
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EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
TLFC IV EQUIPMENT LEASE TRUST 1996-1
THIS Certificate of Trust of TLFC IV Equipment Lease Trust 1996-1 (the
"Trust"), dated as of November 26, 1996, is being duly executed and filed by
Bankers Trust (Delaware), a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. C Section 3801 et
seq.).
1. Name. The name of the business trust form hereby is TLFC IV
Equipment Lease Trust 1996-1.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Bankers Trust (Delaware), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Effective Date. This Certificate of Trust shall be effective on
November 26, 1996.
IN WITNESS WHEREOF, the undersigned, being the sole trustee
of the Trust, has executed this Certificate of Trust as the date first-above
written.
BANKERS TRUST (DELAWARE), not in
its individual capacity but solely
as Owner Trustee under a Trust
Agreement dated as of November 26,
1996
By:_______________________________
Name:
Title:
