Exhibit 4.1
MELLON BANK, N.A.
Beneficiary and Administrator
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Owner Trustee
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AMENDED AND RESTATED TRUST AGREEMENT
Dated as of June 15, 2001
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MELLON PREMIUM FINANCE LOAN OWNER TRUST
TABLE OF CONTENTS
PAGE
Article I.....................................................................1
Definitions and Construction
Section 1.01. Capitalized Terms.............................................1
Section 1.02. Other Terms...................................................2
Section 1.03. Rules of Construction.........................................2
Article II....................................................................2
Organization
Section 2.01. Name..........................................................2
Section 2.02. Office........................................................3
Section 2.03. Purposes and Powers...........................................3
Section 2.04. Appointment of Owner Trustee..................................3
Section 2.05. Authority.....................................................3
Section 2.06. Declaration of Trust..........................................3
Section 2.07. Restrictions..................................................4
Section 2.08. Liability of Beneficiary......................................4
Section 2.09. Title to Trust Property.......................................4
Section 2.10. Situs of Trust................................................5
Section 2.11. Representations and Warranties of Beneficiary.................5
Article III...................................................................6
Limitation on Transfer of Beneficial Interest
Section 3.01. Beneficial Ownership..........................................6
Article IV....................................................................6
Actions by Owner Trustee
Section 4.01. Prior Notice to Beneficiary with Respect to Certain Matters...6
Section 4.02. Action by Beneficiary with Respect to Certain Matters.........6
Section 4.03. [Reserved]....................................................6
Section 4.04. Restrictions on Beneficiary Power.............................6
Article V.....................................................................6
Application of Trust Funds; Certain Duties....................................6
Section 5.01. Application of Trust Funds....................................6
Section 5.02. Method of Payment.............................................7
Section 5.03. No Segregation of Moneys; No Interest.........................7
Section 5.04. Accounting and Reports to Beneficiary, Internal
Revenue Service and Others....................................7
Article VI....................................................................7
Authority and Duties of Owner Trustee.........................................7
Section 6.01. General Authority.............................................7
Section 6.02. General Duties................................................8
Section 6.03. Action upon Instruction.......................................8
Section 6.04. No Duties Except as Specified in Agreement or Instructions....8
Section 6.05. No Action Except under Specified Documents or Instructions....8
Section 6.06. Restrictions..................................................9
Section 6.07. Not Responsible for Recitals or Sufficiency of Agreement......9
Article VII...................................................................9
Concerning Owner Trustee......................................................9
Section 7.01. Acceptance of Trusts and Duties...............................9
Section 7.02. Furnishing of Documents.......................................10
Section 7.03. Representations and Warranties................................10
Section 7.04. Reliance; Advice of Counsel...................................10
Section 7.05. Not Acting in Individual Capacity.............................11
Section 7.06. Owner Trustee Not Liable for Payment Obligations..............11
Article VIII..................................................................11
Compensation of Owner Trustee.................................................11
Section 8.01. Owner Trustee's Fees and Expenses.............................11
Section 8.02. Indemnification...............................................11
Section 8.03. Payments to Owner Trustee.....................................12
Article IX....................................................................12
Appointment and Duties of Administrator.......................................12
Section 9.01. Appointment of Administrator..................................12
Section 9.02. Duties of Administrator.......................................12
Section 9.03. Non-Ministerial Matters.......................................13
Section 9.04. Indemnification of Owner Trustees.............................13
Section 9.05. Compensation..................................................13
Section 9.06. Independence of Administrator.................................14
Section 9.07. Other Activities of Administrator.............................14
Section 9.08. Resignation and Removal of Administrator......................14
Section 9.09. Action upon Termination, Resignation or Removal...............15
Article X.....................................................................15
Termination of Agreement......................................................15
Section 10.01. Termination of Agreement.....................................15
Article XI....................................................................15
Successor Owner Trustees and Additional Owner Trustees........................15
Section 11.01. Eligibility Requirements for Owner Trustee...................15
Section 11.02. Resignation or Removal of Owner Trustee......................16
Section 11.03. Successor Owner Trustee......................................16
Section 11.04. Merger or Consolidation of Owner Trustee.....................17
Section 11.05. Appointment of Co-Trustee or Separate Trustee................17
Article XII...................................................................18
Miscellaneous.................................................................18
Section 12.01. Supplements and Amendments...................................18
Section 12.02. No Legal Title to Trust Assets in Beneficiary................18
Section 12.03. Limitations on Rights of Others..............................18
Section 12.04. Notices......................................................18
Section 12.05. Separate Counterparts........................................19
Section 12.06. Successors and Assigns.......................................19
Section 12.07. No Petition..................................................19
Section 12.08. No Recourse..................................................19
Section 12.09. Headings.....................................................19
Section 12.10. Governing Law................................................19
Section 12.11. Integration..................................................20
EXHIBITS
EXHIBIT A
Form of Certificate of Trust ..............................................A-1
EXHIBIT B
Power of Attorney..........................................................B-1
This AMENDED AND RESTATED TRUST AGREEMENT, is dated as of June 15, 2001 (as
amended, supplemented or modified from time to time, this "AGREEMENT"), among
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity but solely as owner trustee (in such capacity,
the "OWNER TRUSTEE"), MELLON BANK, N.A., a national banking association, as
beneficiary (in such capacity, the "BENEFICIARY"), and MELLON BANK, N.A., as
administrator hereunder (in such capacity, the "ADMINISTRATOR").
WHEREAS, the Beneficiary and the Owner Trustee created a Delaware business
trust pursuant to the trust agreement, dated as of May 23, 2001 (the "Original
Trust Agreement");
WHEREAS, the Beneficiary and the Owner Trustee desire to amend and restate
the Original Trust Agreement;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
Definitions AND CONSTRUCTION
Section 1.01. CAPITALIZED TERMS.
As used in this Agreement and unless the context requires a different
meaning, capitalized terms are used in this Agreement with the following
meanings:
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code ss. 3801 et seq.
"CERTIFICATE OF TRUST" means the Certificate of Trust in the form of
Exhibit A filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
"CORPORATE TRUST OFFICE" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Owner
Trustee may designate by notice to the Beneficiary or the principal corporate
trust office of any successor Owner Trustee at the address designated by such
Owner Trustee by notice to the Beneficiary.
"EXPENSES" has the meaning assigned to it in Section 8.02.
"INDEMNIFIED PARTIES" has the meaning assigned to it in Section 8.02.
"OPINION OF COUNSEL" means one or more written opinions of counsel, who may
be an employee of or counsel to the Beneficiary, which counsel shall be
acceptable to the Owner Trustee or the Rating Agencies, as applicable.
"POOLING AND SERVICING AGREEMENT" means the Amended and Restated Pooling
and Servicing Agreement, dated as of June 15, 2001, among the Trust, the
Servicer, the Back-up Servicer and the Trustee, as such agreement may be
amended, supplemented, waived or otherwise modified from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
"TREASURY REGULATIONS" means regulations, including proposed or temporary
Regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRANSACTION DOCUMENTS" means the Pooling and Servicing Agreement, the
First Tier Receivables Purchase Agreement, the Second Tier Receivables Purchase
Agreement, any purchase, placement or underwriting agreement relating to the
sale of the Certificates and any other documents and certificates delivered in
connection therewith.
"TRUST" means the Delaware business trust established by this Agreement.
Section 1.02. OTHER TERMS.
Capitalized terms used in this Agreement that are not otherwise defined
have the meanings ascribed to them in the Pooling and Servicing Agreement.
Section 1.03. RULES OF CONSTRUCTION.
Except as otherwise expressly provided in this Agreement or unless the
context otherwise clearly requires:
(a) References to designated articles, sections, and other subdivisions of
this Agreement, such as "Section 6.12 (a)," refer to the designated article,
section, or other subdivision of this Agreement as a whole and to all
subdivisions of the designated article, section, or other subdivision. The words
"herein," "hereof," "hereto," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular article, section,
or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available from
time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or B
or both," not "either A or B but not both").
(e) All accounting terms used in an accounting context and not otherwise
defined shall be construed in accordance with generally accepted accounting
principles. Capitalized terms used in this Agreement without definition that are
defined in the Uniform Commercial Code are used in this Agreement as defined in
the Uniform Commercial Code.
(f) In the computation of a period of time from a specified date to a later
specified date or an open-ended period, the word "from" means "from and
including" and the words "to" or "until" mean "to but excluding." Likewise, in
setting deadlines or other periods, "by" means "on or before," and "after" means
"from and after."
(g) 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.
ARTICLE II
Organization
Section 2.01. NAME.
This Trust shall continue to be known as "Mellon Premium Finance Loan Owner
Trust," in which name the Owner Trustee and the Administrator may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued. The Trust's activities shall be
conducted only under the name of the Trust.
Section 2.02. OFFICE.
The office of the Trust shall be in care of the Owner Trustee or the
Administrator at the Corporate Trust Office or at any other address inside or
outside of Delaware as the Owner Trustee or the Administrator designates by
written notice to the Beneficiary
Section 2.03. PURPOSES AND POWERS.
The exclusive purposes and functions of the Trust are as follows:
(a) to acquire and hold the Transferor Interest;
(b) to transfer to the Beneficiary the proceeds from the sale of the
Investor Certificates pursuant to the Pooling and Servicing Agreement in
exchange for the conveyance to the Trust of the Receivables from the Beneficiary
pursuant to the Second Tier Receivables Purchase Agreement;
(c) to assign, grant, transfer, pledge and convey the Receivables in
accordance with the Pooling and Servicing Agreement and to hold, manage and
distribute to the Beneficiary pursuant to the terms of this Agreement any
portion of the Trust Assets released from the Lien of, and remitted to the Trust
pursuant to, the Pooling and Servicing Agreement;
(d) to enter into and perform its obligations under the Transaction
Documents to which it is to be a party;
(e) to engage in those activities, including entering into agreements, that
are necessary or suitable to accomplish the foregoing or are incidental thereto
or connected therewith; and
(f) subject to compliance with the Transaction Documents, to engage in such
other activities as may be required in connection with conservation of the Trust
Assets and the making of distributions to the Beneficiary.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Transaction Documents.
Section 2.04. APPOINTMENT OF OWNER TRUSTEE.
The Beneficiary hereby confirms the appointment the Owner Trustee as
trustee of the Trust effective as of the date of the Original Trust Agreement,
to have all the rights, powers and duties set forth herein.
Section 2.05. AUTHORITY.
Subject to the limitations provided in this Agreement, each of the Owner
Trustee and the Administrator shall have authority to carry out the purposes of
the Trust. An action taken by each of the Owner Trustee and the Administrator in
accordance with its powers shall constitute the act of, and serve to bind, the
Trust. In dealing with the Owner Trustee or the Administrator acting on behalf
of the Trust, no Person shall be required to inquire into the authority of the
Owner Trustee or the Administrator to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the Owner
Trustee and the Administrator as set forth in this Agreement.
Section 2.06. DECLARATION OF TRUST.
The Owner Trustee hereby declares that it will hold the Trust Assets in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Beneficiary, subject to the obligations of the Trust under the
Transaction Documents to which it is a party. It is the intention of the parties
hereto that the Trust constitute a business trust under the Business Trust
Statute and that this Agreement constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, solely for
income tax purposes, the Trust shall be disregarded as an entity separate from
the Beneficiary and the owner of the Trust Assets shall be deemed to be the
Beneficiary. The parties agree that, unless otherwise required by appropriate
tax authorities, the Trust will not file annual or other tax returns. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee has filed with the
Secretary of State the Certificate of Trust.
Section 2.07. RESTRICTIONS.
Notwithstanding anything to the contrary contained herein, none of the
Beneficiary, the Owner Trustee nor the Administrator shall take any actions, nor
agree to amend this Agreement in any manner, to permit to permit the Trust to do
or undertake any of the following actions or activities:
(i) NO OTHER BUSINESS. Engage in any business other than the
financing, purchasing, owning and managing of the Receivables in the manner
contemplated by the Transaction Documents and this Agreement, and
activities incidental thereto;
(ii) NO BORROWING. Issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any indebtedness except as contemplated
by or under the Transaction Documents and this Agreement;
(iii) GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by or under the Transaction Documents or this Agreement, make
any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuring another's payment or
performance of any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so), any stock,
obligations, assets or other securities of, or any other interest in, or
make any capital contribution to, any other Person;
(iv) CAPITAL EXPENDITURES. Make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or
personalty); or
(v) COMMINGLING OF FUNDS OR ASSETS. Commingle its funds or other
assets with any other person, including any affiliate of the Trust;
provided, however, that if Article VII of the Pooling and Servicing Agreement is
amended to permit any of the foregoing activities or if the Pooling and
Servicing Agreement has been terminated in accordance with its terms, then the
provisions of this Section 2.07 may be amended in accordance with the provisions
of Section 12.01 hereof.
Section 2.08. LIABILITY OF BENEFICIARY.
Subject to Article VIII hereof and the terms of the Transaction Documents,
the Beneficiary shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
general corporation law of the State of Delaware.
Section 2.09. TITLE TO TRUST PROPERTY.
Legal title to all the Trust Assets 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 Assets 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 or a separate trustee, as the case may be.
Section 2.10. SITUS OF TRUST.
The Trust will be located and administered in the State of Delaware or the
State of New York. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware or the State of New York.
The Trust shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee or the Administrator from having employees within or without the State
of Delaware.
Section 2.11. REPRESENTATIONS AND WARRANTIES OF BENEFICIARY.
The Beneficiary hereby represents and warrants to the Owner Trustee that:
(a) The Beneficiary is duly incorporated, validly existing and in good
standing under the laws of the United States of America, with power and
authority to own its properties with full power and authority to conduct its
business as currently owned or conducted, and to execute, deliver and perform
this Agreement and any other document relating hereto to which it is a party and
to perform its obligations as contemplated hereby and thereby.
(b) The Beneficiary is duly qualified to do business as a foreign
corporation, in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of their property
or the conduct of its business shall require such qualifications.
(c) The Beneficiary has the power and authority to execute, deliver and
perform this Agreement and to carry out its terms; and the Beneficiary has full
power and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust and the Beneficiary has duly authorized such sale
and assignment and deposit to the Trust by all necessary corporate action. The
execution, delivery and performance of this Agreement and any other document
related hereto to which the Beneficiary is a party have been duly authorized by
the Beneficiary by all necessary corporate action. This Agreement, and any other
document executed by the Beneficiary in connection herewith, have been duly
executed and delivered and constitute the legal, valid and binding obligations
of the Beneficiary enforceable against the Beneficiary in accordance with their
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(d) The consummation of the transactions contemplated by this Agreement and
any other document related hereto to which the Beneficiary is a party, the
performance of the transactions contemplated hereby and thereby and fulfillment
of the terms hereof and thereof do not conflict with or violate any requirements
of law applicable to the Beneficiary or conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, the articles of incorporation or bylaws
of the Beneficiary, or any indenture, agreement or other instrument to which the
Beneficiary is a party or by which it or its properties are 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 Transaction Documents); nor violate any law or, to the best of
the Beneficiary's knowledge, any order, rule or regulation applicable to the
Beneficiary of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Beneficiary or its properties.
(e) To the Beneficiary's best knowledge, there are no proceedings or
investigations pending or threatened before any Governmental Authority having
jurisdiction over the Beneficiary or its properties: (A) asserting the
invalidity of this Agreement or any other document relating hereto to which the
Beneficiary is a party, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other document relating
hereto to which the Beneficiary is a party, or (C) seeking any determination or
ruling that might materially and adversely affect the performance by the
Beneficiary of its obligations under, or the validity or enforceability of, this
Agreement or any other document relating hereto to which the Beneficiary is a
party.
ARTICLE III
Limitation on Transfer of Beneficial Interest
Section 3.01. BENEFICIAL OWNERSHIP.
The Beneficiary shall at all times retain sole ownership of its
uncertificated beneficial interest in the Trust.
ARTICLE IV
Actions by Owner Trustee
Section 4.01. PRIOR NOTICE TO BENEFICIARY 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 Beneficiary in writing of the proposed action
and the Beneficiary shall not have notified the Owner Trustee in writing prior
to the 30th day after such notice is given that the Beneficiary has withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust and the compromise
of any action, claim or lawsuit brought by or against the Trust; or
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute).
Section 4.02. ACTION BY BENEFICIARY WITH RESPECT TO CERTAIN MATTERS.
The Owner Trustee shall not have the power, except upon the direction
of the Beneficiary, to (a) remove the Administrator pursuant to Section 9.08,
(b) appoint a successor Administrator pursuant to Section 9.08 or (c) except as
provided in the Transaction Documents, sell the Trust Assets. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Beneficiary.
Section 4.03. [RESERVED].
Section 4.04. RESTRICTIONS ON BENEFICIARY POWER.
The Beneficiary shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any other
Transaction Document or would be contrary to Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
Section 5.01. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Trustee will distribute to the
Beneficiary amounts deposited in the Trust pursuant to the Pooling and Servicing
Agreement; provided, however, that any amounts deposited in the Trust as the
Transferor Interest shall be applied first, towards the payment of fees and
expenses of the Trust (including all fees and expenses of the Owner Trustee not
otherwise paid by the Beneficiary) and second, any remaining amount shall be
paid to the Beneficiary.
(b) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to the Beneficiary, such tax shall reduce the amount
otherwise distributable to the Beneficiary in accordance with this Section. The
Trustee is hereby authorized and directed to retain from amounts otherwise
distributable to the Beneficiary sufficient funds for the payment of any tax
that is legally owed by the Trust (but such authorization shall not prevent the
Trust from contesting any such tax in appropriate proceedings and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the
Beneficiary shall be treated as cash distributed to the Beneficiary at the time
it is withheld by the Trustee and remitted to the appropriate taxing authority.
If the Trustee receives an opinion from Federal tax counsel that withholding tax
is payable with respect to a distribution, the Trustee may in its sole
discretion withhold such amounts in accordance with this paragraph.
Section 5.02. METHOD OF PAYMENT.
Subject to Section 10.01(c), distributions required to be made to the
Beneficiary upon the termination of this Trust shall be made by wire transfer,
in immediately available funds, to the account of the Beneficiary at a bank or
other entity having appropriate facilities therefor.
Section 5.03. NO SEGREGATION OF MONEYS; NO INTEREST.
Subject to Sections 5.01 and 5.02, moneys received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law 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 5.04. ACCOUNTING AND REPORTS TO BENEFICIARY, INTERNAL REVENUE
SERVICE AND OTHERS.
The Administrator shall deliver to the Beneficiary such information,
reports or statements as may be required by the Code and applicable Treasury
Regulations and as may be required to enable the Beneficiary to prepare its
federal and State income tax returns. Consistent with the Trust's
characterization for tax purposes as a disregarded entity, no federal income tax
return shall be filed on behalf of the Trust unless either (a) the Trust or the
Beneficiary shall receive an Opinion of Counsel based on a change in applicable
law occurring after the date hereof that the Code requires such a filing or (b)
the Internal Revenue Service shall determine that the Trust is required to file
such a return. In the event that the Trust is required to file tax returns, the
Administrator shall prepare or shall cause to be prepared any tax returns
required to be filed by the Trust and shall remit such returns to the
Beneficiary at least five days before such returns are due to be filed. The
Beneficiary, or any other such party required by law, shall promptly sign such
returns and deliver such returns after signature to the Administrator and such
returns shall be filed by, or at the direction of, the Administrator with the
appropriate tax authorities. In no event shall the Owner Trustee or the
Beneficiary be liable for any liabilities, costs or expenses of the Trust
arising out of the application of any tax law, including federal, State, foreign
or local income or excise taxes or any other tax imposed on or measured by
income (or any interest, penalty or addition with respect thereto or arising
from a failure to comply therewith), except for any such liability, cost or
expense attributable to any act or omission by the Owner Trustee which
constitutes gross negligence or willful misconduct or if the Beneficiary is in
breach of its obligations under this Agreement.
ARTICLE VI
Authority and Duties of Owner Trustee
Section 6.01. GENERAL AUTHORITY.
The Owner Trustee is authorized, but shall not be obligated, to take all
actions required of the Trust pursuant to the Transaction Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Transaction Documents.
Section 6.02. GENERAL DUTIES.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this Agreement
and to administer the Trust in the interest of the Beneficiary, subject to the
Transaction Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and the obligations of the
Trust under the Transaction Documents to the extent the Administrator has agreed
herein to perform any act or to discharge any duty of the Owner Trustee
hereunder or the Trust under any Transaction Document, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations hereunder or thereunder.
Section 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article IV and in accordance with the terms of the
Transaction Documents, the Beneficiary 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 Beneficiary pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder or
under any Transaction 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 Transaction Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is (i) unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any Transaction Document, (ii) unsure as to the application of any provision of
this Agreement or any Transaction Document or any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision or (iii) in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Beneficiary requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within 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 Transaction
Documents, as it shall deem to be in the best interests of the Beneficiary, and
shall have no liability to any Person for such action or inaction.
Section 6.04. NO DUTIES EXCEPT AS SPECIFIED IN AGREEMENT OR INSTRUCTIONS.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of or otherwise deal
with the Trust Assets, 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 6.03; and no implied duties or obligations shall be
read into this Agreement or any Transaction Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Transaction Document.
Section 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Assets 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 Transaction Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
Section 6.06. RESTRICTIONS.
The Owner Trustee shall not take any action (a) that is inconsistent with
the purposes of the Trust set forth in Section 2.03 or (b) that, to the actual
knowledge of a responsible officer of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Beneficiary shall not direct the Owner Trustee to take action that would violate
the provisions of this Section.
Section 6.07. NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY OF AGREEMENT.
The recitals contained in this Agreement shall be taken as the statements
of the Beneficiary, and the Owner Trustee does not assume any responsibility for
their correctness. The Owner Trustee makes no representations as to the value or
condition of the property of the Trust or any part thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of this Agreement.
ARTICLE VII
Concerning Owner Trustee
Section 7.01. ACCEPTANCE OF TRUSTS AND DUTIES.
The Owner Trustee accepts the trusts hereby created and agrees to perform
its duties hereunder with respect to such trusts, but only upon the terms of
this Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Trust Assets upon the terms of the
Transaction Documents. The Owner Trustee shall not be answerable or accountable
hereunder or under any Transaction Document under any circumstances, except (i)
for its own willful misconduct or gross negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.03 expressly
made by the Owner Trustee in its individual capacity. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or the Beneficiary;
(c) No provision of this Agreement or any other Transaction 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 Transaction 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 Transaction Documents,
including the principal of and interest on the Certificates;
(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
Beneficiary or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Assets, or for or in respect of the validity or
sufficiency of the Transaction Documents, and the Owner Trustee shall in no
event assume or incur any liability, duty or obligation to any Certificateholder
or to the Beneficiary, other than as expressly provided for herein or expressly
agreed to in the Transaction Documents;
(f) The Owner Trustee shall not be liable for the default or misconduct of
the Administrator or the Beneficiary hereunder, the Servicer, the Back-up
Servicer or the Trustee under the Pooling and Servicing Agreement or any other
Person under any of the Transaction Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or any other Transaction Document that are required
to be performed by the Administrator hereunder, the Trustee, the Servicer or the
Back-up Servicer under the Pooling and Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under any Transaction Document, at the request, order or
direction of the Beneficiary, unless the Beneficiary has offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Transaction Document shall not be construed as a duty, and
the Owner Trustee shall not be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 7.02. FURNISHING OF DOCUMENTS.
The Owner Trustee shall furnish to the Beneficiary, 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 Transaction Documents.
Section 7.03. REPRESENTATIONS AND WARRANTIES.
The Owner Trustee hereby represents and warrants to the Beneficiary, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America. It has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution or the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby, nor compliance by it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it or constitute
any default under its charter documents or bylaws.
Section 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
or believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Transaction Documents, the
Owner Trustee (i) may act directly or through its agents or attorneys pursuant
to agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled Persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such Persons.
Section 7.05. NOT ACTING IN INDIVIDUAL CAPACITY.
Except as provided in this Article VII, in accepting the trusts hereby
created Chase Manhattan Bank USA, National Association acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any other Transaction Document shall look only to the Trust
Assets for payment or satisfaction thereof.
Section 7.06. OWNER TRUSTEE NOT LIABLE FOR PAYMENT OBLIGATIONS OR
TRANSFERRED SECURITIES.
The recitals contained herein shall be taken as the statements of the
Beneficiary, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of any Transaction Document or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
in any Receivable, or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Trust Assets or its ability to
generate the payments to be distributed to the Beneficiary under this Agreement,
including, without limitation: the existence, condition and ownership of any
Receivable, the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the validity of the transfer of any Receivable to the
Trust or of any intervening transfer or assignment; the completeness of any
Receivable; the performance or enforcement of any Receivable; the compliance by
the Beneficiary with any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or
representation, or any action of the Administrator, taken in the name of the
Owner Trustee or the Trust.
ARTICLE VIII
Compensation of Owner Trustee
Section 8.01. OWNER TRUSTEE'S FEES AND EXPENSES.
The Owner Trustee shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between the
Beneficiary and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
Section 8.02. INDEMNIFICATION.
(a) The Beneficiary shall be liable as primary obligor for, and shall
indemnify the Owner Trustee (in its individual and trust capacities) and its
successors, assigns, agents and servants (collectively, the "INDEMNIFIED
PARTIES") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "EXPENSES") which may at any time be
imposed on, incurred by, or asserted against any Indemnified Party in any way
relating to or arising out of this Agreement, the Transaction Documents, the
Trust Assets, the administration of the Trust Assets or the action or inaction
of the Owner Trustee hereunder, except only that the Beneficiary shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in clauses (i)
and (ii) of the third sentence of Section 7.01. The indemnities contained in
this Section shall survive the resignation or removal of the Owner Trustee or
the termination of this Agreement.
(b) To the fullest extent permitted by law, Expenses to be incurred by an
Indemnified Party shall, from time to time, be advanced by, or on behalf of, the
Beneficiary prior to the final disposition of any matter upon receipt by the
Beneficiary of an undertaking by, or on behalf of, such Indemnified Party to
repay such amount if it shall be finally determined by a court of competent
jurisdiction that the Indemnified Party is not entitled to be indemnified under
this Agreement.
(c) As security for any amounts owing to the Owner Trustee hereunder, the
Owner Trustee shall have a lien against the Trust Assets, which lien shall be
prior to the rights of the Beneficiary.
Section 8.03. PAYMENTS TO OWNER TRUSTEE.
Any amounts paid to the Owner Trustee pursuant to this Article VIII shall
be deemed not to be a part of the Trust Assets immediately after such payment.
ARTICLE IX
Appointment and Duties of Administrator
Section 9.01. APPOINTMENT OF ADMINISTRATOR.
Pursuant to Section 3806(b)(7) of the Business Trust Statute, the Trust
hereby appoints Mellon Bank, N.A. as Administrator of the Trust for purposes of
performing certain duties of the Trust and the Owner Trustee as set forth
herein. The Administrator is authorized and directed to execute and deliver the
Transaction 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 Transaction
Documents to which the Trust is to be a party and any amendment or other
agreement in such form as the Beneficiary shall approve, as evidenced
conclusively by the Administrator's execution thereof.
Section 9.02. DUTIES OF ADMINISTRATOR.
(a) The Administrator shall take all appropriate action that it is the duty
of the Trust or the Owner Trustee to take pursuant to the Transaction Documents,
including, without limitation, the performance of such calculations and the
preparation of, and execution on behalf of the Trust of, all such documents,
reports, filings, instruments, certificates and opinions that it shall be the
duty of the Trust or the Owner Trustee to prepare, file or deliver pursuant to
the Transaction Documents or Article V hereof. In furtherance thereof, the Owner
Trustee shall, on behalf of the Trust, 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 B hereto,
appointing the Administrator the attorney-in-fact of the Trust for the purpose
of executing on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions. Subject to Article V of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Trust Assets or the Transaction Documents as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(b) Notwithstanding anything in this Agreement or the Transaction Documents
to the contrary, the Administrator shall be responsible for promptly notifying
the Owner Trustee and the Trustee in the event that any withholding tax is
imposed on the Trust's payments to the Beneficiary as contemplated in Section
5.01(b) herein. Any such notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee and the Trustee pursuant to such
provision.
(c) The Administrator shall determine on behalf of the Trust whether any
conditions precedent to the purchase of the Receivables, the issuance of the
Investor Certificates or any other action of the Trust under the Transaction
Documents has been satisfied. The Owner Trustee may conclusively rely upon a
certificate of the Administrator as to satisfaction of the foregoing.
(d) The Administrator shall perform the duties of the Administrator
specified in Section 11.02 herein 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 this Agreement.
(e) The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Trust at any time during
normal business hours.
(f) The Administrator shall furnish to the Owner Trustee from time to time
such additional information regarding the Trust Assets as the Owner Trustee
shall reasonably request.
(g) 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.
(h) The Administrator shall have the fiduciary duties of loyalty and care
similar to that of officers of business corporations organized under the General
Corporation Law of the State of Delaware, as amended. The Administrator shall
not be liable for monetary damages to the Trust or any other Person to the
fullest extent such limitation of personal liability is permitted under the
Business Trust Statute.
Section 9.03. NON-MINISTERIAL MATTERS.
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 Beneficiary of the proposed action and the
Beneficiary shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation: (i) the initiation of any claim or lawsuit by
the Trust and the compromise of any action, claim or lawsuit brought by or
against the Trust; and (ii) the amendment, change or modification of the
Transaction Documents.
Section 9.04. INDEMNIFICATION OF INDEMNIFIED PARTIES.
The Administrator will indemnify the Indemnified Parties for, and hold them
harmless against, any losses, liability or expense incurred without gross
negligence or bad faith on their part, arising out of or in connection with the
Administrator's acceptance or administration of the transactions contemplated by
this Agreement or the Transaction Documents or the failure by the Administrator
to perform its duties or obligations in accordance with this Agreement or the
Transaction Documents, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise or
performance of any of the Administrator's powers or duties under this Agreement.
Section 9.05. COMPENSATION.
As compensation for the performance of the Administrator's obligations
under this Agreement and as reimbursement for its expenses related thereto, the
Administrator shall be entitled to $5,000 per year; provided, however, that the
Administrator may, with prior written notice to the Beneficiary, the Trust and
the Owner Trustee, waive its rights to compensation hereunder and Mellon Bank,
N.A., as the initial Administrator hereby gives written notice to the
Beneficiary, the Trust and the Owner Trustee that until further written notice
to the contrary, it waives its right to receive such compensation.
Section 9.06. INDEPENDENCE OF ADMINISTRATOR.
For all purposes of this Agreement, the Administrator shall be an
independent contractor and shall not be subject to the supervision of the Owner
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Owner Trustee, the
Administrator shall have no authority to act for or represent the Owner Trustee
in any way and shall not otherwise be deemed an agent of the Owner Trustee.
Section 9.07. OTHER ACTIVITIES OF ADMINISTRATOR.
Nothing herein shall 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
Trust or the Owner Trustee.
Section 9.08. RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) The obligations of the Administrator pursuant to this Article IX shall
continue until the termination of the Trust, upon which event such obligations
will terminate.
(b) Subject to Section 9.08(e), the Administrator may resign its duties
hereunder by providing the Trust with at least 60 days' prior written notice.
(c) Subject to Section 9.08(e), the Trust and the Owner Trustee may remove
the Administrator without cause on 60 days' prior written notice to the
Administrator at any time.
(d) Subject to Section 9.08(e), at the sole option of the Trust, the
Administrator may be removed immediately upon written notice of termination from
the Trust 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 10 days (or, if such default cannot be cured in
such time, shall not give within 10 days such assurance of cure as shall be
reasonably satisfactory to the Trust);
(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, 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 Trust and a Responsible Officer of the Owner Trustee within seven days
after the happening of such event.
(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 Trust 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 satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
Section 9.09. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of this Agreement pursuant
to Section 9.08(a) or the resignation or removal of the Administrator pursuant
to Section 9.08(b) or (c), respectively, the Administrator shall be entitled to
be paid all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 9.08(a) deliver to the Trust all property and
documents of or relating to the Trust Assets then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 9.08(b) or (c), respectively, the Administrator shall
cooperate with the Trust and take all reasonable steps requested to assist the
Trust in making an orderly transfer of the duties of the Administrator.
ARTICLE X
Termination of Agreement
Section 10.01. TERMINATION OF AGREEMENT.
(a) The Trust shall dissolve upon the final distribution by the Owner
Trustee of all moneys or other property or proceeds of the Trust Assets in
accordance with the terms of the Transaction Documents and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of the Beneficiary
shall not (x) operate to terminate this Agreement or the Trust or (y) entitle
the Beneficiary's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Assets or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in Section 10.01(a), the Beneficiary shall not be
entitled to dissolve, revoke or terminate the Trust.
(c) Upon the winding up of the Trust and payment of all liabilities of the
Trust in accordance with Section 3808 of the Business Trust Statute, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute. Thereupon, this
Agreement (other than Article VIII) and the Trust shall terminate. The Owner
Trustee shall be entitled to rely conclusively upon the directions of the
Administrator with respect to winding up the Trust.
ARTICLE XI
Successor Owner Trustees and Additional Owner Trustees
Section 11.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE.
The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Business Trust Statute; authorized to
exercise corporate trust powers; having a combined capital and surplus of at
least $50,000,000 and 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, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 11.02.
Section 11.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to the
successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 11.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee. Any resignation or removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 11.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating Agencies.
Section 11.03. SUCCESSOR OWNER TRUSTEE.
Any successor Owner Trustee appointed pursuant to Section 11.02 shall
execute, acknowledge and deliver to the Administrator and to its predecessor
Owner Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Administrator and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 11.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to the Beneficiary and
the Rating Agencies. If the Administrator shall fail to mail such notice within
10 days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
The successor Owner Trustee shall file an amendment to the Certificate of
Trust with the Secretary of State identifying the name and principal place of
business in the State of Delaware of such successor Owner Trustee.
Section 11.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE.
Any Person into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business of
the Owner Trustee, shall be the successor of the Owner Trustee hereunder,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided that such corporation shall be eligible pursuant to Section 11.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 11.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Assets or any Receivables may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Assets, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 11.01, and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 11.03
except for a notice of such appointment to be delivered by the Owner Trustee to
the Rating Agencies.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) All rights, powers, duties and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Assets or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) No trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE XII
Miscellaneous
Section 12.01. SUPPLEMENTS AND AMENDMENTS.
This Agreement may be amended by the Beneficiary, the Administrator and the
Owner Trustee to cure any ambiguity and to correct or supplement any provisions
in this Agreement. This Agreement may also be amended by the parties hereto,
with prior written notice to the Rating Agencies, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
herein.
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.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Transaction
Documents. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment that affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
In connection with the execution of any amendment to any other agreement to
which the Trust is a party, the Owner Trustee shall be entitled to receive and
conclusively rely upon an Opinion of Counsel to the effect that such amendment
is authorized or permitted by this Agreement and the Transaction Documents and
that all conditions precedent in the Transaction Documents for the execution and
delivery thereof by the Trust or the Owner Trustee, as the case may be, have
been satisfied.
Section 12.02. NO LEGAL TITLE TO TRUST ASSETS IN BENEFICIARY.
The Beneficiary shall not have legal title to any part of the Trust Assets.
The Beneficiary shall be entitled to receive distributions with respect to its
beneficial interest therein only in accordance with Articles V and X. No
transfer, by operation of law or otherwise, of any right, title or interest of
the Beneficiary to and in its ownership interest in the Trust Assets 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 Assets.
Section 12.03. LIMITATIONS ON RIGHTS OF OTHERS.
The provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Beneficiary and the Administrator, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Assets or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
Section 12.04. NOTICES.
Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given upon receipt by the
intended recipient or three Business Days after mailing if mailed by certified
mail, postage prepaid (except that notice to the Owner Trustee shall be deemed
given only upon actual receipt by the Owner Trustee), (i) if to the Owner
Trustee, addressed to the Corporate Trust Office; (ii) if to the Beneficiary,
addressed to Mellon Bank, N.A., One Mellon Center, Suite 1910, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer and General
Counsel, (iii) if to the Administrator, addressed to Mellon Bank, N.A., One
Mellon Center, Suite 1910, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer and General Counsel, or (iv) as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
Section 12.05 SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 12.05. SEPARATE COUNTERPARTS.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 12.06. SUCCESSORS AND ASSIGNS.
All covenants and agreements contained herein shall be binding upon, and
inure to the benefit of, each of the Beneficiary, the Administrator and its
permitted assigns, the Owner Trustee and its successors and the Beneficiary and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Beneficiary shall bind the successors and assigns of the Beneficiary.
Section 12.07. NO PETITION.
The Owner Trustee, the Administrator and the Beneficiary, by entering into
this Agreement, hereby covenant and agree that they will not at any time
petition or otherwise invoke or cause the Trust to invoke the power of any
Governmental Authority for the purpose of commencing or sustaining a case
against 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 Trust or the Trust Assets or
ordering the winding-up or liquidation of the affairs of the Trust or in
connection with any obligations relating to any of the Transaction Documents.
Nothing herein shall prohibit the Owner Trustee from participating in or filing
proofs of claim in respect of any such proceeding instituted by any other
Person.
Section 12.08. NO RECOURSE.
The Beneficiary by entering into this Agreement acknowledges that it holds
a beneficial interest in the Trust only and not in interests in or obligations
of the Administrator, the Owner 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 the Transaction Documents.
Section 12.09. HEADINGS.
The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 12.10. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.11. INTEGRATION.
This Agreement represents the agreement of the Beneficiary and the parties
hereto with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Beneficiary or the parties
hereto relating to the subject matter hereof not expressly set forth or referred
to herein.
IN WITNESS WHEREOF, the parties hereto have caused this AMENDED AND
RESTATED TRUST AGREEMENT to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
MELLON BANK, N.A.,
as Beneficiary and as Administrator
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇. Au
--------------------------
Name: ▇▇▇ ▇. Au
Title: Attorney-in-Fact
EXHIBIT A
[FORM OF CERTIFICATE OF TRUST]
[AVAILABLE UPON REQUEST]
EXHIBIT B
POWER OF ATTORNEY
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
KNOW ALL MEN BY THESE PRESENTS, that MELLON PREMIUM FINANCE LOAN OWNER
TRUST, a Delaware business trust (the "TRUST"), hereby appoints MELLON BANK,
N.A. as administrator under the Amended and Restated Trust Agreement, dated as
of June 15, 2001 (the "TRUST AGREEMENT"), between Mellon Bank, N.A., as
Beneficiary and as Administrator and Chase Manhattan Bank USA, National
Association, as owner trustee (the "OWNER TRUSTEE"), and its agents and
attorneys as Attorneys-in-Fact to execute on behalf of the Trust any and all
such documents, reports, filings, instruments, certificates and opinions as it
should be the duty of the Owner Trustee or the Trust to prepare, file or deliver
pursuant to the Transaction Documents, or pursuant to Section 6.01 of the Trust
Agreement, 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, if any, and with full power to perform any
and all acts associated with such returns and audits, if any, 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 Trust Agreement.
EXECUTED this ___ of June, 2001.
MELLON PREMIUM FINANCE LOAN OWNER TRUST
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity,
but solely as Owner Trustee
By:
---------------------------------
Name:
Title:
STATE OF DELAWARE }
}
COUNTY OF NEW CASTLE }
Before me, the undersigned authority, on this day personally appeared
_______________________, known to me to be the person whose name is subscribed
to the foregoing instruments, and acknowledged to me that he signed the same for
the purposes and considerations therein expressed.
Sworn to before me this ___ day of June, 2001.
--------------------------------------
Notary Public - State of Delaware