Exhibit 10.1
This ADMINISTRATION AGREEMENT dated as of [___________] (as amended
from time to time, this "Agreement"), among [_______] TRUST [_____], a
Delaware business trust (the "Issuer"), [_________________________________],
a Delaware banking corporation, not in its individual capacity but solely as
Owner Trustee (the "Owner Trustee") and [____________________________], a
[____________________________], as Administrator (the "Administrator"),
W I T N E S S E T H :
WHEREAS, the Issuer is issuing the Fixed Rate Asset Backed
Amortizing Notes, Class (A-1) (the "Notes") pursuant to the Indenture dated
as of [_______________] (as amended and supplemented from time to time, the
"Indenture"), among the Issuer, the Indenture Trustee and
[__________________________] and the Floating Rate Asset Backed Amortizing
Certificates, Class (B-1) (the "Certificates" and together with the Notes,
the "Securities") pursuant to the Trust Agreement dated as of [_________] (,
as amended and restated as of [_____________]) (the "Trust Agreement")
between ML Asset Backed Corporation (the "Depositor") and the Owner Trustee
(capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Related Agreements (as hereinafter
defined));
WHEREAS, the Issuer has entered into certain agreements in
connection with the issuance of the Securities, including (i) the Indenture,
(ii) the Swap Agreement dated as of [_______] (as amended and supplemented
from time to time, the "Swap Agreement") between the Issuer and
[___________________________], (iii) the Underwriting Agreement, dated
[__________] between the Issuer and ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (the "Underwriter") and (iv) two Letters of Representations
dated [__________] (as amended and supplemented from time to time, the
"Depository Agreement"), one among the Issuer, the Indenture Trustee and The
Depository Trust Company ("DTC") relating to the Notes, and another among the
Issuer, the Administrator, and DTC relating to the Certificates (the Trust
Agreement, the Indenture, the Swap Agreement, the Underwriting Agreement and
the Depository Agreement being referred to hereinafter collectively as the
"Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer, the Owner
Trustee and the Administrator are required to perform certain duties in
connection with the Notes, the Certificates and the collateral therefor
pledged pursuant to the Indenture (the "Collateral");
WHEREAS, the Issuer and the Owner Trustee desire to appoint an
Administrator (i) to perform the duties of the Administrator in this
Agreement and in the Related Documents and (ii) to perform certain of the
duties of the Issuer and the Owner Trustee referred to in the preceding
clause and to provide such additional services consistent with the terms of
this Agreement and the Related Agreements as the Issuer and the Owner Trustee
may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and
the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
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(a) Duties with Respect to the Indenture
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(i) The Administrator agrees to perform all of the duties of the
Administrator in this Agreement and in the Related Agreements and to perform
the duties of the Issuer and the Owner Trustee under the Related Agreements.
In addition, the Administrator shall consult with the Owner Trustee regarding
the duties of the Issuer or the Owner Trustee under the Indenture and the
other Related Agreements. The Administrator shall monitor the performance of
the Issuer and the Owner Trustee and shall advise the Owner Trustee when the
Administrator believes action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Indenture and the other Related Agreements.
The Administrator shall prepare for execution by the Issuer, or shall cause
the preparation by other appropriate persons or entities of, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Indenture and the Related Agreements. In furtherance
of the foregoing, the Administrator shall take all appropriate action that is
the duty of the Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to sec-
tions of the Indenture):
(A) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 8.05);
(B) the maintenance of an office in the Borough of Manhattan, City
of New York, for registration of transfer or exchange of Notes
(Section 3.02);
(C) the duty to cause newly appointed Administrators, if any, to
deliver to the Indenture Trustee and the Swap Counterparty the instru-
ment specified in the Indenture regarding funds held in trust
(Section 3.03);
(D) the identification to the Indenture Trustee and the Swap
Counterparty in an Officer's Certificate of a person or entity with whom
the Administrator, on behalf of the Issuer, has contracted to assist it
or the Issuer in performing its duties under the Indenture
(Section 3.07(b));
(E) the taking of any action as the Indenture Trustee may request
in order to maintain the perfection and priority of the security
interest of the Indenture Trustee in accordance with Section 3.21(c) of
the Indenture (Section 3.21);
(F) the execution of Notes and delivery of Definitive Notes in
accordance with Section 4.08 of the Indenture (Section 4.08);
(G) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the certificate, if necessary, relating thereto (Section 4.10);
(H) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.03);
(I) the preparation and delivery of notice to Noteholders and the
Swap Counterparty of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
(J) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or
removal of any co-trustee or separate trustee (Section 6.10);
(K) the preparation of an Officer's Certificate and the obtaining
of an Opinion of Counsel and certificates, if necessary, for the release
of the Trust Estate (Sections 8.05 and 8.03);
(L) the obtaining of Opinions of Counsel with respect to the
execution of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures (Sections 9.01,
9.02 and 9.03);
(M) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.05);
(N) the notification of the Rating Agencies, upon the failure of
the Indenture Trustee to give such notification, of the information
required pursuant to Section 10.03 of the Indenture (Section 10.03); and
(b) Additional Duties. (i) In addition to the duties of the
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Administrator set forth above, the Administrator shall perform, or cause to
be performed, all duties and obligations of the Owner Trustee or Issuer under
the Trust Agreement or Swap Agreement, as applicable, shall perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons or entities of, and shall execute on behalf of the Issuer
or the Owner Trustee, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Related Agreements,
and at the request of the Owner Trustee shall take all appropriate action
that it is the duty of the Issuer or the Owner Trustee to take pursuant to
the Related Agreements. In furtherance thereof, the Issuer shall execute and
deliver to the Administrator and to each successor Administrator appointed
pursuant to the terms hereof, one or more powers of attorney substantially in
the form of Exhibit A hereto, appointing the Administrator the
attorney-in-fact of the Issuer for the purpose of executing on behalf of the
Issuer all such documents, reports, filings, instruments, certificates and
opinions. Subject to Section 5 of this Agreement, and in accordance with the
directions of the Issuer, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Related Agreements) as are not covered by any of
the foregoing provisions and as are expressly requested by the Owner Trustee
and are reasonably within the capability of the Administrator.
Notwithstanding any provision in this agreement or other Related Agreements
to the contrary, the Administrator shall not be responsible for any filings
required under the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company of 1940, as amended,
or under any state securities or "Blue Sky" statute.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that the Administrator
becomes aware of any withholding tax imposed on the Trust's payments (or
allocations of income) to a Certificateholder as contemplated in Section
5.02(e) of the Trust Agreement. Any such notice shall specify the amount of
any withholding tax required to be withheld by the Owner Trustee pursuant to
such provision. Furthermore, the Administrator shall comply with all
requirements of the Code with respect to the withholding from any payments
made by it on any Notes or Certificates of any applicable withholding taxes
(including backup withholding) imposed thereon and with respect to any
applicable reporting requirements in connection therewith and, in the event
the Administrator does not receive a copy of a properly completed (i) IRS
Form ▇-▇, (▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇▇, (▇▇▇) IRS Form 4224, or (iv) IRS Form W-9 with
respect to any Securityholder, shall treat payments to such Securityholder as
being subject to withholding taxes (including backup withholding, as
applicable) and shall retain from amounts otherwise distributable to such
Securityholder an amount sufficient for the payment of such withholding taxes
(including backup withholding, as applicable).
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Trust set forth in Section 5.04 of the Trust
Agreement with respect to, among other things, accounting and reports to
Certificateholders; provided, however, that the Owner Trustee shall retain
responsibility for the distribution of the information returns or reports
required by the Code.
(iv) The Administrator shall perform the duties of the
Administrator specified in the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any
other duties expressly required to be performed by the Administrator under
the Trust Agreement.
(v) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance
with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties. If reasonably necessary to carry out
duties or other obligations contemplated hereby, the Administrator is hereby
authorized to select and hire agents or attorneys-in-fact, and so long as
such selection was done with reasonable care, the Administrator shall be not
responsible for the act or omissions of such agents or attorneys-in-fact.
(vi) In carrying out any of its obligations under this Agreement,
the Administrator may act either directly or through agents, attorneys,
accountants, independent contractors and auditors and enter into agreements
with any of them and shall not be liable for the default or misconduct of any
such agents, attorneys, accountants, independent contractors or auditors if
such agents, attorneys, accountants, independent contractors or auditors
shall have been selected with reasonable care.
(c) Non-Ministerial Matters.
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(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action
and the Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of distributions on
the Underlying Securities):
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Administrators and successor Indenture Trustees pursuant to the
Indenture, or the consent to the assignment by the Note Registrar,
Administrator or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not (x) make any
payments to the Noteholders under the Related Agreements, (y) sell the Trust
Estate pursuant to Section 5.03 of the Indenture or (z) take any action that
the Issuer directs the Administrator not to take on its behalf.
(d) Tax Matters. The Administrator will be required to prepare and
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file a partnership information return (IRS Form 1065) signed by the Tax
Matters Partner with the IRS for each taxable year of the Issuer and will
report each Certificateholder's allocable share of items of Issuer income and
expense to holders and the IRS on Schedule K-1. The Tax Matters partner
shall be as designated in the Trust Agreement. The Administrator will
provide the Schedule K-1 information to nominees that fail to provide the
Administrator with the information statement described in Section 6031 of the
Internal Revenue Code of 1986, as amended, and such nominees will be required
to forward such information to the beneficial owners of the Certificates.
2. Records. The Administrator shall maintain appropriate books
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of account and records relating to services performed hereunder, which books
of account and records shall be accessible for inspection by the Issuer and
the Depositor at any time during normal business hours.
3. Additional Information To Be Furnished to the Issuer. The
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Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
4. Independence of the Administrator. For all purposes of this
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Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Owner Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator
shall have no authority to act for or represent the Issuer or the Owner
Trustee in any way and shall not otherwise be deemed an agent of the Issuer
or the Owner Trustee.
5. No Joint Venture. Nothing contained in this Agreement (i)
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shall constitute the Administrator and either of the Issuer or the Owner
Trustee or the Depositor as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity,
(ii) shall be construed to impose any liability as such on any of them or
(iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the
others.
6. Other Activities of Administrator. Nothing herein shall
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prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or
entity may engage in business activities similar to those of the Issuer, the
Owner Trustee or the Indenture Trustee.
7. Term of Agreement; Resignation and Removal of Administrator.
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(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 7(e), the Administrator may resign its
duties hereunder by providing the Issuer and the Swap Counterparty with at
least 60 days' prior written notice.
(c) Subject to Section 7(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice. The Issuer shall provide written notice of any
such removal of the Administrator to the Swap Counterparty.
(d) Subject to Section 7(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall
occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten days (or, if such default cannot be
cured in such time, shall not give within ten days such assurance of
cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to pay
its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven days
after the happening of such event. The Issuer shall provide prompt written
notice of any such removal of the Administrator to the Swap Counterparty.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall
have been appointed by the Issuer and (ii) such successor Administrator shall
have agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after a Rating Agency, after having been given 10 days prior
notice of such proposed appointment, shall have declared in writing that such
appointment will not result in a reduction or withdrawal of the then current
rating of the Notes or Certificates. The Issuer shall give prompt written
notice to the Swap Counterparty of the appointment of a successor
administrator.
8. Action upon Termination, Resignation or Removal. Upon the
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Payment Date next following the effective date of termination of this
Agreement pursuant to Section 7(a) or the resignation or removal of the
Administrator pursuant to Section 7(b) or (c), respectively, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
constituting Extraordinary Expenses accruing to it to the date of such
termination, resignation or removal to the extent funds are available for
such payment in accordance with the Priority of Payments. The Administrator
shall forthwith upon such termination pursuant to Section 7(a) deliver to the
Issuer all property and documents of or relating to the Collateral then in
the custody of the Administrator. In the event of the resignation or removal
of the Administrator pursuant to Section 7(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
9. Notices. Any notice, report or other communication given
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hereunder shall be in writing and addressed as follows:
(a) if to the Issuer, to:
[___________________________] Trust 1997-1
c/o _______________________
___________________________
___________________________
Attention: _______________
(b) If to the Administrator, to:
___________________________
___________________________
___________________________
Attention: _______________
(c) If to the Indenture Trustee, to:
___________________________
___________________________
___________________________
Attention: _______________
(d) If to the Owner Trustee, to:
___________________________
___________________________
___________________________
Attention: _______________
(e) If to the Swap Counterparty, to:
___________________________
___________________________
___________________________
Attention: _______________
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
10. Amendments. This Agreement may be amended from time to time
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by a written amendment duly executed and delivered by the Issuer and the
Administrator and with the written consent of the Indenture Trustee, the
Owner Trustee and the Swap Counterparty, without the consent of the
Noteholders and the Certificateholders, and after receiving notification from
a Rating Agency that such amendment shall not cause the rating of the Notes
or the Certificates to be reduced, suspended or withdrawn, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or Certificateholders; provided that such amendment will not, in
the Opinion of Counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended by the Issuer, the Administrator and with the
written consent of the Indenture Trustee, the Owner Trustee and the Swap
Counterparty and the holders of Notes evidencing at least a majority in the
Outstanding Amount of the Notes and the holders of Certificates evidencing at
least a majority of the Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of distributions on the Underlying Certificates or
distributions that are required to be made for the benefit of the Noteholders
or Certificateholders or (ii) reduce the aforesaid percentage of the holders
of Notes and Certificates which are required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes
and Certificates. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the permission of the Depositor, which
permission shall not be unreasonably withheld.
11. Successors and Assigns. This Agreement may not be assigned
----------------------
by the Administrator unless such assignment is previously consented to in
writing by the Issuer, the Swap Counterparty and the Owner Trustee and unless
a Rating Agency, after having been given 10 days prior notice of such
assignment, shall have declared in writing that such assignment will not
result in a reduction or withdrawal of the then current rating of the Notes
or Certificates. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the assignee hereunder in the same
manner as the Administrator is bound hereunder. Notwithstanding the fore-
going, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization
executes and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement in which such corporation or other organization agrees
to be bound hereunder by the terms of said assignment in the same manner as
the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
12. Compensation and Indemnity. The Administrator shall receive
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from the Depositor or the Issuer as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between
the Depositor and the Administrator (the "Initial Administrator Fee"). The
Administrator hereby acknowledges receipt of its Initial Administrator Fee as
its entire remuneration for its services as Administrator under this
Administration Agreement and under the Related Documents and receipt of all
of its ordinary expenses to be incurred in acting as Administrator under this
Administration Agreement and under the Related Documents. After the
execution of this Administration Agreement the Issuer shall only be obligated
to indemnify the Administrator for those expenses of the Administrator that
constitute Extraordinary Expenses and only in accordance with Priority of
Payments in Clause 3.05(d) of the Indenture.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
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convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
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each of which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
17. Not Applicable to the Administrator in Other Capacities.
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Nothing in this Agreement shall affect any obligation that the Administrator
may have in any other capacity.
18. Limitation of Liability of Owner Trustee, Indenture Trustee
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and Administrator and Standard of Care. (a) Notwithstanding anything
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contained herein to the contrary, this instrument has been countersigned by [
] not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall [ ] in its individual
capacity or any beneficial owner of the Issuer have any liability for the
representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder. For all purposes of this Agreement, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement. The Owner Trustee hereby
acknowledges that the Owner Trustee shall have no recourse to the Issuer for
amounts hereunder.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by the Indenture Trustee not in its
individual capacity but solely as Indenture Trustee, not in its individual
capacity but solely as Administrator and in no event shall the Indenture
Trustee have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto; nor shall the
Indenture Trustee be liable for any action or omission to act;
notwithstanding negligence, nor for any indirect, special or consequential
damages. The Administrator hereby acknowledges receipt of its fees as
compensation for services performed hereunder and that the Administrator
shall have no recourse to the Issuer for amounts hereunder.
19. Third-Party Beneficiary. The Owner Trustee and the Swap
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Counterparty are each a third-party beneficiary to this Agreement and are
each entitled to the rights and benefits hereunder and may enforce the
provisions hereof as if they were a party hereto.
20. No Petition. The Administrator, by entering into this
-----------
Agreement, hereby covenants and agrees that they will not at any time
institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any
of the Related Agreements.
* * * * * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
[______] TRUST 199_-_
By: _________________________________, not in its
individual capacity but solely as Owner
Trustee,
By: _________________________
Name:
Title:
[_____________________________________],
not in its individual capacity but solely as Owner
Trustee
By: _________________________
Name:
Title:
[____________________________________], not in its
individual capacity, but solely as Administrator
By: _________________________
Name:
Title:
Exhibit A
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that [_______] Trust 199_-_ (the
"Trust"), does hereby make, constitute and appoint
[_____________________________________________], as administrator under the
Administration Agreement dated [_____________], 1997 (the "Administration
Agreement"), among the Trust, [_____________________________________], as
Owner Trustee and [_____________________________________], as Administrator,
as the same may be amended from time to time, and its agents and attorneys,
as Attorneys-in-Fact to execute on behalf of the Trust all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Trust to prepare, file or deliver pursuant to the Related
Agreements, including, without limitation, to appear for and represent the
Trust in connection with the preparation, filing and audit of federal, state
and local tax returns pertaining to the Trust, and with full power to perform
any and all acts associated with such returns and audits that the Trust could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Trust are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ____ day of ____________, 1997.
[______] TRUST 199_-_
By: [____________________________________],
not in its individual capacity but solely as Owner
Trustee
By: ________________________________
Name:
Title: