TRUST AGREEMENT
between
TL LEASE FUNDING CORP. IV
as Seller
and
Bankers Trust (Delaware),
a Delaware banking corporation
not in its individual capacity but solely as Owner Trustee,
Dated as of October 6, 1995
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . .1
SECTION 1.1 Capitalized Terms . . . . . . . . . . . . . . .1
SECTION 1.2 Other Definitional Provisions . . . . . . . . .3
ARTICLE II ORGANIZATION. . . . . . . . . . . . . . . . . .4
SECTION 2.1 Name. . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.2 Office. . . . . . . . . . . . . . . . . . . . .4
SECTION 2.3 Purposes and Powers . . . . . . . . . . . . . .4
SECTION 2.4 Appointment of Owner Trustee. . . . . . . . . .5
SECTION 2.5 Initial Capital Contribution
of Trust Estate . . . . . . . . . . . . . . . .5
SECTION 2.6 Declaration of Trust. . . . . . . . . . . . . .5
SECTION 2.7 Liability of the Certificateholders . . . . . .6
SECTION 2.8 Title to Trust Property . . . . . . . . . . . .7
SECTION 2.9 Situs of Trust. . . . . . . . . . . . . . . . .7
SECTION 2.10 Representations and Warranties of
the Seller. . . . . . . . . . . . . . . . . . .7
SECTION 2.11 Books and Records; Tax Returns. . . . . . . . .8
ARTICLE III THE CERTIFICATES. . . . . . . . . . . . . . . .9
SECTION 3.1 The Certificate . . . . . . . . . . . . . . . .9
SECTION 3.2 Execution and Delivery. . . . . . . . . . . . .9
SECTION 3.3 Mutilated, Destroyed, Lost or Stolen
Certificate . . . . . . . . . . . . . . . . . 10
SECTION 3.4 Limitation on Transfer. . . . . . . . . . . . 10
SECTION 3.5 Acts of the Certificateholders and
Noteholders . . . . . . . . . . . . . . . . . 10
SECTION 3.6 Distributions to the Certificateholders . . . 11
ARTICLE IV ACTIONS BY THE OWNER TRUSTEE. . . . . . . . . 12
SECTION 4.1 Prior Notice to the Certificateholders
with Respect to Certain Matters . . . . . . . 12
SECTION 4.2 Action by the Certificateholders with
Respect to Certain Matters. . . . . . . . . . 12
SECTION 4.3 Action by the Certificateholders with
Respect to Bankruptcy . . . . . . . . . . . . 13
SECTION 4.4 Rights of the Certificateholders to
Direct Owner Trustee. . . . . . . . . . . . . 13
SECTION 4.5 Suits for Enforcement . . . . . . . . . . . . 13
SECTION 4.6 Owner Trustee May Enforce Claims
without Possession of the Certificate . . . . 13
SECTION 4.7 Limitation on Rights of the
Certificateholders. . . . . . . . . . . . . . 14
ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE. . . . 15
SECTION 5.1 General Authority . . . . . . . . . . . . . 15
SECTION 5.2 General . . . . . . . . . . . . . . . . . . 15
SECTION 5.3 Action upon Instruction . . . . . . . . . . 16
SECTION 5.4 No Duties Except as Specified in this
Agreement or in Instructions . . . . . . . . . . 17
SECTION 5.5 No Action Except Under Specified
Documents or Instructions. . . . . . . . . . . . 17
SECTION 5.6 Restrictions. . . . . . . . . . . . . . . . 17
ARTICLE VI CONCERNING THE OWNER TRUSTEE . . . . . . . . . . 17
SECTION 6.1 Acceptance of Trusts and Duties . . . . . . 17
SECTION 6.2 Furnishing of Documents . . . . . . . . . . 19
SECTION 6.3 Representations and Warranties. . . . . . . 19
SECTION 6.4 Reliance; Advice of Counsel . . . . . . . . 20
SECTION 6.5 Owner Trustee Not Liable
for Certificates or Leases . . . . . . . . . . . 21
SECTION 6.6 Not Acting in Individual Capacity . . . . . 21
ARTICLE VII COMPENSATION AND INDEMNIFICATION OF
OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.1 Owner Trustee's Fees and Expenses . . . . . 22
SECTION 7.2 Indemnification . . . . . . . . . . . . . . 22
ARTICLE VIII SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.1 Eligibility Requirements for Owner
Trustee. . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.2 Resignation or Removal of Owner Trustee . . 23
SECTION 8.3 Successor Owner Trustee . . . . . . . . . . 24
SECTION 8.4 Merger or Consolidation of Owner Trustee. . 24
SECTION 8.5 Appointment of Co-Owner Trustee or
Separate Owner Trustee . . . . . . . . . . . . . 25
ARTICLE IX TERMINATION OF TRUST AGREEMENT . . . . . . . . . 26
SECTION 9.1 Termination . . . . . . . . . . . . . . . . 26
SECTION 9.2 Dissolution upon Bankruptcy of the
Seller . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE X MISCELLANEOUS. . . . . . . . . . . . . . . . . . 28
SECTION 10.1 Supplements and Amendments. . . . . . . . . 28
SECTION 10.2 Notices . . . . . . . . . . . . . . . . . . 30
SECTION 10.3 Merger and Integration. . . . . . . . . . . 31
SECTION 10.4 Headings. . . . . . . . . . . . . . . . . . 31
SECTION 10.5 Governing Law . . . . . . . . . . . . . . . 31
SECTION 10.6 Counterparts. . . . . . . . . . . . . . . . 32
SECTION 10.7 No Legal Title to Trust Estate in
Certificateholders . . . . . . . . . . . . . . . 32
SECTION 10.8 Limitation on Rights of Others. . . . . . . 32
SECTION 10.9 Severability. . . . . . . . . . . . . . . . 32
SECTION 10.10 Successors and Assigns. . . . . . . . . . . 32
SECTION 10.11 No Implied Waiver . . . . . . . . . . . . . 33
SECTION 10.12 No Petition . . . . . . . . . . . . . . . . 33
SECTION 10.13 No Recourse . . . . . . . . . . . . . . . . 33
SECTION 10.14 Indemnification by and Reimbursement
of the Servicer. . . . . . . . . . . . . . . . . 34
SECTION 10.15 Confidential Information. . . . . . . . . . 34
Exhibit A Form of Certificate . . . . . . . . . . . . . . . .A-1
Exhibit B Certificate of Trust. . . . . . . . . . . . . . . .B-1
THIS TRUST AGREEMENT, dated as of October 6, 1995
(the "Trust Agreement"), between TL LEASE FUNDING CORP. IV, a
Delaware corporation (the "Seller"), and Bankers Trust (Delaware),
a Delaware banking corporation, not in its individual capacity but
solely as trustee (together with its permitted successors in the
Trust hereunder, the "Owner Trustee") of the TLFC IV Equipment
Lease Trust 1995-1 (the "Trust").
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual agreements, covenants and undertakings
herein contained, the parties intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. For all purposes
of this Agreement, the following terms shall have the meanings
set forth below:
"Administration Agreement" means the Administration
Agreement dated as of the date hereof by and among the Trust and
the Administrator, as such agreement may be amended, modified or
supplemented from time to time.
"Administrator" means Trans Leasing International,
Inc., a Delaware corporation, in its capacity as the
administrator under the Administration Agreement or any successor
administrator under the Administration Agreement.
"Agreement" means this Trust Agreement as
originally executed and, if from time to time supplemented or
amended by one or more amendments entered into pursuant to the
applicable provisions hereof, as so supplemented or amended.
"Basic Documents" means this Agreement, the Pooling
and Servicing Agreement, the Indenture, the Contribution and Sale
Agreement, the Administration Agreement, the Depository Agreement
and the other documents and certificates delivered in connection
therewith.
"Business Trust Statute" means Chapter 38 of Title
12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as
the same may be amended from time to time.
"Certificate" means a Certificate evidencing a
beneficial interest in the Trust, executed and delivered by the
Owner Trustee substantially in the form of Exhibit A.
"Certificate of Trust" has the meaning set forth in
Section 2.6.
"Certificateholder" means the Person in whose name
a Certificate is issued. The Certificateholders shall initially
be the Seller and, upon the consummation of the transactions
contemplated by the Contribution and Sale Agreement, the
Originator.
"Contribution and Sale Agreement" means the
Contribution and Sale Agreement dated as of the date hereof by
and between the Seller and Trans Leasing International, Inc., as
such agreement may be amended, modified or supplemented from time
to time.
"Corporate Trust Office" means the office of the
Owner Trustee located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to Bankers Trust Company, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust and Agency
Group - Structured Finance; or at such other address as the Owner
Trustee may designate by notice to the Certificateholders and the
Seller, or the principal trust office of any successor Owner
Trustee.
"Indenture" means the Indenture, dated as of the
date hereof, between Manufacturers and Traders Trust Company, a
banking corporation organized and existing under the laws of New
York, not in its individual capacity but solely as Indenture
Trustee, and the Trust, as such agreement may be amended,
modified or supplemented from time to time.
"Originator" means Trans Leasing International,
Inc., a Delaware corporation, in its capacity as transferor of
certain assets pursuant to the Contribution and Sale Agreement,
and its successors.
"Owner Trustee" means Bankers Trust (Delaware), a
Delaware banking corporation, not in its individual capacity but
solely as trustee under this Agreement, until a successor Owner
Trustee shall have been appointed pursuant to the applicable
provisions of this Agreement, and thereafter such successor Owner
Trustee.
"Pooling and Servicing Agreement" means the Pooling
and Servicing Agreement dated as of the date hereof by and among
the Seller, the Trust and Trans Leasing International, Inc., a
Delaware corporation, as Servicer, as such agreement may be
amended, modified or supplemented from time to time.
"Trust Estate" means all right, title and interest
of the Trust in and to the property and rights assigned to the
Trust pursuant to the Pooling and Servicing Agreement, all funds
on deposit from time to time in the Trust Accounts and all other
property of the Trust from time to time, including any rights of
the Owner Trustee and the Trust pursuant to the Pooling and
Servicing Agreement.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Pooling and Servicing
Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(c) As used in this Agreement and in any
certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in this Agreement or in
any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the
respective meanings given to them under generally accepted
accounting principles in effect on the date hereof. To the
extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this
Agreement or in any such certificate or other documents shall
control.
(d) The words "hereof," "herein," "hereunder,"
and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and
the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and
neuter genders of such terms.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall
be known as "TLFC IV Equipment Lease Trust 1995-1," in which name
the Owner Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued.
SECTION 2.2 Office. The office of the Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or
at such other address as the Owner Trustee may designate by
written notice to the Certificateholders and the Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose
of the Trust is to engage in the following activities:
(i) to acquire, manage and hold the
Leases, interests in the related Equipment and other related
assets to be transferred to the Trust from time to time
pursuant to the Pooling and Servicing Agreement;
(ii) to issue the Notes pursuant to the
Indenture and the Certificates pursuant to this Agreement
and to sell, transfer or exchange the Notes and/or
Certificates in one or more transactions;
(iii) to acquire property and assets from
the Seller pursuant to the Pooling and Servicing Agreement,
to make payments or distributions pursuant to the Basic
Documents and to pay the organizational, start-up and
transactional expenses of the Trust;
(iv) with the proceeds of the sale of the
Notes and the Certificates, to pay such proceeds to, or as
directed in writing by, the Seller;
(v) to assign, grant, transfer, pledge,
mortgage and convey the Trust Estate pursuant to the
Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Pooling and
Servicing Agreement any portion of the Trust Estate released
from the Lien of, and remitted to the Trust pursuant to, the
Indenture;
(vi) to enter into and perform its
obligations under the Basic Documents to which it is to be a
party;
(vii) to engage in those activities,
including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic
Documents, to engage in such other activities as may be
required in connection with conservation of the Trust Estate
and the making of distributions and payments to the
Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The
Seller hereby appoints the Owner Trustee as trustee of the Trust
effective as of the date hereof, to have all the rights, powers
and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Trust
Estate. The Seller hereby sells, assigns, transfers, conveys and
sets over to the Owner Trustee, as of the date hereof, the sum of
$1. The Owner Trustee hereby acknowledges receipt in trust from
the Seller, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Trust Estate. The Seller
shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner
Trustee hereby declares that it will hold the Trust Estate in
trust upon and subject to the conditions set forth herein for the
use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute, that this
Agreement constitute the governing instrument of such business
trust and that the Certificates represent the equity interests
therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute.
By entering into this Agreement, the parties hereto express their
intention that, for purposes of federal, state and local income
and franchise taxes and any other tax imposed on, measured by or
based upon gross or net income (in the aggregate, "Tax"), the
Notes will be treated as indebtedness and, except to the extent
otherwise required by law, (i) each Noteholder, by acceptance of
its Note, agrees to treat the interests evidenced by the Notes as
indebtedness, and further agrees that any Person acquiring an
interest in a Note from or through it may do so only subject to
an obligation to comply with this Agreement as to the treatment
of such Note as indebtedness for Tax purposes, and (ii) the
Certificateholders agree to treat the transactions contemplated
by this Agreement as a financing and to include in the
computation of its Tax liabilities all items of income, gain,
loss, deduction and credit attributable to the ownership of the
Trust Estate, subject to the indebtedness represented by the
Notes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth in this Agreement,
the Pooling and Servicing Agreement and the Business Trust
Statute with respect to accomplishing the purposes of the Trust.
The Owner Trustee agrees to file the certificate required under
s 3810 et seq. of the Business Trust Statute (the "Certificate of
Trust") in connection with the formation of the Trust as a
business trust under the Business Trust Statute.
SECTION 2.7 Liability of the Certificateholders.
(a) The Seller shall be liable directly to and will indemnify
the Noteholders or any other injured party for all losses,
claims, damages, liabilities and expenses of the Trust (including
expenses, to the extent not paid out of the Trust Estate) to the
extent that the Seller would be liable if the Trust were a
limited partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Seller were a general partner;
provided, however, that the Seller shall not be liable (i) to any
Noteholder for any losses incurred by such Noteholder in the
capacity of an investor in the Notes, (ii) to any Person for any
losses incurred by such Person as a result of the fraudulent
actions, misrepresentations or willful misconduct of such Person
or (iii) any losses, claims, damages, liabilities and expenses
arising out of the imposition by any taxing authority of any
federal income, state or local income or franchise taxes, or any
other taxes imposed on or measured by gross or net income, gross
or net receipts, capital, net worth and similar items (including
any interest, penalties or additions with respect thereto) upon
the Noteholders, the Owner Trustee or the Indenture Trustee
(including any liabilities, costs or expenses with respect
thereto) with respect to any Leases not specifically indemnified
or represented to hereunder. In addition, any third party
creditors of the Trust (other than in connection with the
obligations described in the preceding sentence for which the
Seller shall not be liable) shall be deemed third party
beneficiaries of this subsection 2.7(a). The obligations of the
Seller under this subsection 2.7(a) shall be evidenced by the
Certificate issued in the name of the Seller pursuant to Section
3.2. The Certificate issued to the Seller shall be deemed to be
a separate class of Certificates from all other Certificates
issued by the Trust for purposes of the Business Trust Statute;
provided, however, that except as contemplated by this Section
2.7(a), the rights and obligations evidenced by all Certificates
shall be identical.
(b) The Certificateholders (other than, in the
case of the Seller, to the extent set forth in paragraph (a)
above) shall not have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title
to all the Trust Estate shall be vested at all times in the Trust
as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be
vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust will be
located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust
shall be located in the State of Delaware, the State of Illinois
or the State of New York. The Trust shall not have any employees
in any state other than Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments
shall be received by the Trust only in Delaware, Illinois or New
York, and payments and distributions shall be made by the Trust
only from Delaware, Illinois or New York. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the
Seller. The Seller hereby represents and warrants to the Owner
Trustee that:
(a) The Seller is duly organized and validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had
at all relevant times, and now has, power, authority and legal
right to acquire and own the Leases contemplated to be
transferred to the Trust pursuant to the Pooling and Servicing
Agreement.
(b) The Seller is duly qualified to do business
as a foreign corporation and is in good standing, and has
obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(c) The Seller has the corporate power and
authority to execute and deliver this Agreement and to carry out
its terms; the Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with
the Trust and the Seller has duly authorized such sale and
assignment and deposit to the Trust by all necessary corporate
action; the execution, delivery and performance of this Agreement
has been duly authorized by the Seller by all necessary corporate
action; and this Trust Agreement constitutes a legal, valid and
binding obligation of Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and (ii) general
principles of equity (whether considered in a suit at law or in
equity).
(d) The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default under the Articles of Incorporation or
by-laws of the Seller or any indenture, agreement or other
instrument to which the Seller is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or any order, rule or
regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller
or its properties.
(e) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with
any Governmental Authority having jurisdiction over Seller or any
of its properties or assets is required to be obtained by or with
respect to Seller in connection with the execution, delivery and
performance by Seller of this Trust Agreement and the
consummation of the transactions contemplated herein.
SECTION 2.11 Books and Records; Tax Returns.
Except as otherwise expressly provided in this Agreement, the
Owner Trustee shall be responsible for the keeping of all
appropriate books and records relating to the receipt and
disbursement by the Owner Trustee of all monies under this
Agreement or any agreement contemplated hereby. The Owner
Trustee agrees not to file any application with the Internal
Revenue Service for a taxpayer identification number with respect
to the Trust created hereby. Unless otherwise required by the
final determination of a court of competent jurisdiction which is
not subject to further appeal (or for which the time to appeal
has expired), none of the parties hereto will prepare or file (or
cause to be prepared or filed) any Tax returns for the Trust
under federal law, or under any state or local law which follows
federal law with respect to the characterization of entities.
Subject to the preceding sentence, the Owner Trustee and the
Certificateholders, upon request, will furnish each other with
all such information as may reasonably be requested and shall
otherwise cooperate with each other in connection with the
preparation of such Tax returns. The Owner Trustee shall keep
copies of all returns delivered to or filed by it. The Owner
Trustee will give to the Certificateholders, upon request,
periodic information concerning receipts and disbursements by it
with respect to the Trust created by this Agreement.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 The Certificates. The Certificates
shall be substantially in the form of Exhibit A. The
Certificates shall represent the entire beneficial interest in
the Trust. By accepting a Certificate, the holder thereof agrees
to be bound by the provisions hereof and assumes the rights and
obligations of a Certificateholder hereunder. The right to
receive payments with respect to the Certificates is subordinated
to the prior payment in full of all amounts of principal and
interest on the Notes as set forth in the Indenture and the
Pooling and Servicing Agreement.
SECTION 3.2 Execution and Delivery. On the Closing
Date, concurrently with the initial sale, transfer and assignment
of Leases, interests in the related Equipment and the other
related assets to the Trust pursuant to the Pooling and Servicing
Agreement, the Owner Trustee shall cause a Certificate or
Certificates to be executed on behalf of the Trust and delivered
to or upon the written order of the Seller. Each such
Certificate shall be executed by the Owner Trustee on behalf of
the Trust by the manual signature of an Authorized Officer of the
Owner Trustee. Signatures of individuals on any Certificate who
were at the time the proper officers or authorized signatories of
the Owner Trustee shall bind the Owner Trustee, notwithstanding
that such individuals or any of them have ceased to hold such
offices or positions prior to the delivery of such Certificate or
did not hold such offices or positions at the date of such
Certificate. Each Certificate shall be dated the date of its
execution.
SECTION 3.3 Mutilated, Destroyed, Lost or Stolen
Certificate.
(a) If (i) a Certificate is mutilated and is
surrendered to the Owner Trustee, or the Owner Trustee receives
evidence to its satisfaction of the destruction, loss or theft of
a Certificate and (ii) there is delivered to the Owner Trustee
and the Trust such security or indemnity as may be required by
the Owner Trustee to hold it harmless, then, the Owner Trustee
shall execute on behalf of the Trust and the Owner Trustee shall
deliver in exchange for or in lieu of the mutilated, destroyed,
lost or stolen Certificate, a replacement Certificate.
(b) In connection with the issuance of a
replacement Certificate under this Section 3.3, the Owner Trustee
may require the payment by the Certificateholder of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee) connected
therewith.
(c) A duplicate Certificate issued pursuant to
this Section 3.3 in replacement of a mutilated, destroyed, lost
or stolen Certificate shall constitute the beneficial interest in
the Trust and shall be entitled to all the benefits of this
Agreement to which the mutilated, destroyed, lost or stolen
Certificate was entitled, whether or not such Certificate shall
be found at any time thereafter. If the original Certificate is
found subsequent to the issuance of a duplicate Certificate
therefor, it shall be cancelled by the Owner Trustee.
(d) The provisions of this Section 3.3 are
exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of
the mutilated, destroyed, lost or stolen Certificate.
SECTION 3.4 Limitation on Transfer. Following the
transfer of a portion of the original Certificate from the Seller
to the Originator as contemplated by the Contribution and Sale
Agreement, Certificates shall not be transferable, and each of
the Seller and the Originator, by accepting a Certificate, agrees
that it shall not assign any of its interest in a Certificate to
any Person; provided, that the Seller and the Originator may
pledge their rights to distributions with respect to a
Certificate. Any transfer of a Certificate in violation of the
foregoing shall be null and void and of no effect.
SECTION 3.5 Acts of the Certificateholders and
Noteholders. (a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Agreement to be given or taken by the Certificateholders or
Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by the
Certificateholders or Noteholders in person or by agent duly
appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Owner Trustee. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Owner Trustee, the
Certificateholders and the Administrator, if made in the manner
provided in this Section.
(b) The fact and date of the execution by the
Certificateholders or any Noteholder of any such instrument or
writing may be proved in any reasonable manner which the Owner
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the
Note Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other act by a Noteholder
shall bind every holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or omitted to be done
by the Owner Trustee, the Certificateholders or the Administrator
in reliance thereon, whether or not notation of such action is
made upon such Note.
(e) Except as expressly provided herein, any
request, demand, authorization, direction, notice, consent,
waiver or other action that may be taken or given by the
Certificateholders under this Agreement or the other Basic
Documents shall be effective if taken or given by the
Certificateholders representing a majority of the beneficial
interests in the Trust.
(f) The Owner Trustee may require such additional
proof of any matter referred to in this Section as it shall deem
necessary.
SECTION 3.6 Distributions to the
Certificateholders. The Owner Trustee, by executing this
Agreement, is deemed to have instructed the Indenture Trustee to
distribute directly to the Certificateholders (pro rata according
to their respective beneficial interests in the Trust) amounts as
and when described in Article IV and Section 8.1(b) of the
Pooling and Servicing Agreement.
ARTICLE IV
ACTIONS BY THE OWNER TRUSTEE
SECTION 4.1 Prior Notice to the Certificateholders
with Respect to Certain Matters. With respect to the following
matters, the Owner Trustee shall not take action unless, at least
30 days before the taking of such action, the Owner Trustee shall
have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice
is given that the Certificateholders have withheld consent or
provided alternative direction:
(a) the initiation of any claim or lawsuit by the
Trust (except claims or lawsuits brought in connection with the
collection of the Leases) and the compromise of any action, claim
or lawsuit brought by or against the Trust (except with respect
to the aforementioned claims or lawsuits for collection on
Leases);
(b) the election by the Trust to file an
amendment to the Certificate of Trust, a conformed copy of which
is attached hereto as Exhibit B;
(c) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any
Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificate-
holders; and
(f) the appointment pursuant to the Indenture of
a successor Note Registrar, Paying Agent or Indenture Trustee, or
the consent to the assignment by the Note Registrar, Paying Agent
or Indenture Trustee of its obligations under the Indenture, as
applicable.
SECTION 4.2 Action by the Certificateholders with
Respect to Certain Matters. The Owner Trustee shall not have
the power, except upon the written direction of the
Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, (b)
appoint a successor Administrator pursuant to Section 10(e) of
the Administration Agreement, (c) remove the Servicer under the
Pooling and Servicing Agreement pursuant to Section 7.1(b)
thereof or (d) except as expressly provided in the Basic
Documents, sell the Leases transferred to the Trust pursuant to
the Pooling and Servicing Agreement or any interest therein after
the termination of the Indenture.
SECTION 4.3 Action by the Certificateholders with
Respect to Bankruptcy. The Owner Trustee shall not have the
power to commence a voluntary proceeding in bankruptcy relating
to the Trust without the prior approval of the Certificateholders
and the delivery to the Owner Trustee by the Certificateholders
of a certificate certifying that the Certificateholders
reasonably believe that the Trust is insolvent.
SECTION 4.4 Rights of the Certificateholders to
Direct Owner Trustee. The Certificateholders shall have the
right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Owner Trustee, or
exercising any trust or power conferred on the Owner Trustee;
provided, however, that, the Owner Trustee shall have the right
to decline to follow any such direction if the Owner Trustee,
being advised by counsel, determines that the action so directed
may not lawfully be taken, or if the Owner Trustee in good faith
determines that the action so directed would be illegal or
involve it in personal liability; and provided, further that
nothing in this Agreement shall impair the right of the Owner
Trustee to take any action deemed proper by the Owner Trustee and
which is not inconsistent with such direction by the
Certificateholders.
SECTION 4.5 Suits for Enforcement. The Owner
Trustee, in its discretion may, subject to the provisions of this
Article IV, proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement by a suit,
action or proceeding in equity or at law or otherwise, whether
for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any
power granted in this Agreement or for the enforcement of any
other legal, equitable or other remedy, as the Owner Trustee,
being advised by counsel, shall deem most effectual to protect
and enforce any of the rights of the Owner Trustee or the
Certificateholders.
SECTION 4.6 Owner Trustee May Enforce Claims
without Possession of the Certificate. All rights of action and
claims under this Agreement or the Certificate may be prosecuted
and enforced by the Owner Trustee without the possession of the
Certificate or the production thereof in any proceeding relating
thereto, and any such proceedings instituted by the Owner Trustee
shall be brought in its own name or in its capacity as Owner
Trustee. Any recovery of judgment shall, after provision of or
the payment of the reasonable compensation, expenses,
disbursements and advances of the Owner Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in
respect of which such judgment has been recovered.
SECTION 4.7 Limitation on Rights of the
Certificateholders. (a) The Certificateholders shall not direct
the Owner Trustee to take or refrain from taking any action if
such action or inaction would be contrary to any obligation of
the Trust or the Owner Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3, nor shall
the Owner Trustee be obligated to follow any such direction, if
given.
(b) Except as provided herein, the
Certificateholders shall not have the right to vote or in any
manner otherwise control the operation and management of its
interest or the obligations of the parties hereto.
(c) The Certificateholders shall not have the
right by virtue or by availing itself of any provisions of this
Agreement to institute any suit, action, or proceeding in equity
or at law upon or under or with respect to this Agreement on
behalf of the Trust, unless the Certificateholders previously
shall have given to the Owner Trustee a written notice of default
and of the continuance thereof as hereinbefore provided, and
unless the Certificateholders shall have made written request
upon the Owner Trustee to institute such action, suit or
proceeding on behalf of the Trust or in its own name as Owner
Trustee hereunder and shall have offered to the Owner Trustee
such reasonable indemnity as the Owner Trustee may require
against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Owner Trustee, for 30 days after its
receipt of such notice, request, and offer of indemnity, shall
have neglected or refused to institute any such actions, suit, or
proceeding; it being understood and intended, and being expressly
covenanted by the Certificateholders and the Owner Trustee, that
the Certificateholders shall not have the right in any manner
whatever by virtue or by availing itself of any provisions of
this Agreement to enforce any right under this Agreement, except
in the manner herein provided. For the protection and
enforcement of the provisions of this Section, the
Certificateholders and the Owner Trustee shall be entitled to
such relief as can be given either at law or in equity.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 General Authority. The Owner Trustee
is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each
certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Seller shall have
approved as evidenced conclusively by the Owner Trustee's
execution thereof. Notwithstanding the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take any or
all actions required of the Trust pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator recommends with
respect to the Basic Documents. The Owner Trustee acknowledges
that actions to be taken by the Issuer (including under the
Indenture) may be taken by the Administrator in accordance with
the Administration Agreement.
SECTION 5.2 General Duties of Owner Trustee. (a) The
Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement
and the other Basic Documents, including the administration of
the Trust in the interest of the Certificateholders, subject to
the Basic Documents and in accordance with the provisions of this
Agreement.
(b) Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the
extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the
Owner Trustee shall not be liable for the default or failure of
the Administrator to carry out its obligations under the
Administration Agreement.
(c) In the absence of bad faith on its part, the
Owner Trustee may conclusively rely upon certificates or opinions
furnished to the Owner Trustee and conforming to the requirements
of this Agreement in determining the truth of the statements and
the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such
certificates or opinions so as to determine compliance of the
same with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) this subsection 5.2(d) shall not limit the effect
of subsection 5.2(a) or (b);
(ii) the Owner Trustee shall not be liable for any
error of judgment made in good faith unless it is proved
that the Owner Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 4.1, 4.2 or 5.4.
(e) Subject to the Pooling and Servicing Agreement,
monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or
the Pooling and Servicing Agreement and may be deposited under
such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
SECTION 5.3 Action upon Instruction. (a) Subject
to Article IV, the Certificateholders may by written instruction
direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of
the Certificateholders pursuant to Article IV.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any
Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic
Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by
the terms of this Agreement or under any Basic Document, the
Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted,
and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Certificateholders
received, the Owner Trustee shall not be liable on account of
such action to any Person. If the Owner Trustee shall not have
received appropriate instruction from the Certificateholders
within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it
shall deem to be in the best interests of the Certificateholders,
and shall have no liability to any Person for such action or
inaction.
SECTION 5.4 No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall not have
any duty or obligations to manage, make any payment with respect
to, register, record, sell, dispose of or otherwise deal with the
Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to
Section 5.3; and no implied duties or obligations shall be read
into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it
hereunder or to record this Agreement or any Basic Document. The
Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to
discharge any liens on any part of the Trust Estate that result
from actions by, or claims against, the Owner Trustee that are
not related to the ownership or the administration of the Trust
Estate.
SECTION 5.5 No Action Except Under Specified
Documents or Instructions. The Owner Trustee shall not manage,
control, use, sell, dispose of or otherwise deal with any part of
the Trust Estate except (i) in accordance with the powers granted
to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 5.3.
SECTION 5.6 Restrictions. The Owner Trustee shall
not take any action that is inconsistent with the purposes of the
Trust set forth in Section 2.3. or would, to the actual knowledge
of an Authorized Officer of the Owner Trustee, result in the
Trust's becoming taxable as a corporation for federal income tax
purposes.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trusts and Duties. The
Owner Trustee accepts the Trust hereby created and agrees to
perform its duties hereunder with respect to the Trust but only
upon the express terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document
under any circumstances, except (i) for its own willful
misconduct or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.3 expressly
made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any
error of judgment made by an Authorized Officer of the Owner
Trustee absent willful misconduct or negligence by such officer;
(b) the Owner Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in accordance
with the instructions of the Administrator or the
Certificateholders;
(c) no provision of this Agreement or any Basic
Document shall require the Owner Trustee to expend or risk funds
or otherwise incur any financial liability in the performance of
any of its rights or powers hereunder or under any Basic Document
if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes or for any amounts due with respect to the Certificate;
(e) the Owner Trustee shall not be responsible for or
in respect of the validity or sufficiently of this Agreement or
for the due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of any of
the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall
in no event assume or incur any liability, duty or obligation to
any Noteholder or to the Certificateholders, other than is
expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the
default or misconduct of the Seller, the Indenture Trustee or the
Servicer or any other Person under any of the Basic Documents or
otherwise; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or
direction of the Certificateholders, unless the
Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to the Owner Trustee against the costs,
expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in
any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such
act.
SECTION 6.2 Furnishing of Documents. The Owner
Trustee shall furnish to the Certificateholders promptly upon
receipt of a written request therefor, duplicates or copies of
all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner
Trustee under the Basic Documents, and the Owner Trustee shall
furnish to the Noteholders and the Certificateholders, promptly
upon receipt of a written request therefor, copies of the Pooling
and Servicing Agreement, the Administration Agreement, and this
Agreement.
SECTION 6.3 Representations and Warranties. The
Owner Trustee hereby represents and warrants to the Seller, for
the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement
and the other Basic Documents to which it is a party.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement and
such other Basic Documents to which it is a party, and this
Agreement and such other documents will be executed and delivered
by one of its officers who is duly authorized to execute and
deliver this Agreement and such other documents on its behalf.
(c) None of (i) the execution nor the delivery by it
of this Agreement and the other Basic Documents to which it is a
party, (ii) the consummation by it of the transactions
contemplated hereby or thereby or (iii) compliance by it with any
of the terms or provisions hereof or thereof will contravene any
federal or state law, governmental rule or regulation governing
the banking or trust powers of the Owner Trustee or any judgment
or order binding on it or constitute any default under its
charter documents or by-laws.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement shall not require the
authorization, consent or approval of, the giving of notice to,
the filing or registration with, or the taking of any other
action in respect of any Governmental Authority regulating the
banking and corporate trust activities of banks or trust
companies in the jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and
delivered by the Owner Trustee and constitutes the legal, valid
and binding agreement of the Owner Trustee, enforceable in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
SECTION 6.4 Reliance; Advice of Counsel. (a) The
Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may
accept a certified copy of a resolution of the board of directors
or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may, for all
purposes hereof, rely on a certificate, signed by the President
or any Vice President or by the Treasurer or Chief Financial
Officer or other authorized officer of the relevant party, as to
such fact of matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations
under this Agreement or the Basic Documents, the Owner Trustee
(i) may act directly or through its agents or attorneys, pursuant
to agreements entered into with any of them, including, without
limitation, the power of attorney from the Owner Trustee to
certain officers of Bankers Trust Company, and the Owner Trustee
shall not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected
by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner
Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such
persons and not contrary to this Agreement or any Basic Document.
SECTION 6.5 Owner Trustee Not Liable for
Certificates or Leases. (a) Except as specifically set forth in
Section 6.3, the Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Basic
Document or of the Certificates (other than its execution
thereof) or of any Lease or related document.
(b) The Owner Trustee shall have no responsibility for
or with respect to (i) the Leases, including, without limitation
the validity of any security interest in any Lease, the
perfection of any such security interest (whether as of the date
hereof or at any future time), the maintenance of or the taking
of any action to maintain such perfection, the existence or
validity of any Lease, the validity of the assignment of any
Lease to the Trust or of any intervening assignment, the review
of any Lease, the completeness of any Lease, the performance or
enforcement of any Lease and the existence and enforceability of
any insurance thereon, (ii) the compliance by the Servicer, the
Seller or the Indenture Trustee with any covenant, warranty or
representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation,
the acts or omissions of the Servicer, the Seller, the Indenture
Trustee or any Lessee, any action of the Servicer taken in the
name of the Owner Trustee or the Trust or any action by the Owner
Trustee taken at the instruction of the Servicer or (iii) the
preparation and filing of tax returns for the Trust. No recourse
shall be had for any claim based on any provision of this
Agreement, the Basic Documents, the Certificates or any Lease or
assignment thereof against Bankers Trust (Delaware) in its
individual capacity, and Bankers Trust (Delaware) shall not have
any personal obligation, liability or duty whatsoever to the
Certificateholders or any other Person with respect to any such
claim, and any such claim shall be asserted solely against the
Trust or any indemnitor who shall furnish indemnity as provided
herein, except for such liability as is finally determined to
have resulted from its own gross negligence or willful
misconduct.
SECTION 6.6 Not Acting in Individual Capacity. In
accepting the trusts hereby created, the Owner Trustee acts in
its individual capacity. In the performance of its duties as
Owner Trustee hereunder and under any document authorized hereby,
the Owner Trustee acts solely as trustee hereunder and not in its
individual capacity, except to the extent expressly agreed
otherwise, and all Persons, other than the Certificateholders as
provided herein, having any claim against the Owner Trustee by
reason of the transactions contemplated hereby shall look only to
the Trust Estate for payment or satisfaction thereof, except to
the extent, if any, the Owner Trustee shall expressly agree
otherwise in any Basic Document to which it is a party.
ARTICLE VII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
SECTION 7.1 Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before
the date hereof between the Servicer and the Owner Trustee, and
the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such
agents, custodians, nominees, representatives, experts and
counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
Such fees and expenses shall be paid as provided for in Section
3.9 of the Pooling and Servicing Agreement.
SECTION 7.2 Indemnification. The Servicer shall
indemnify the Owner Trustee and its officers, directors,
shareholders, successors, assigns, agents and servants in
accordance with the provisions of Section 6.2 of the Pooling and
Servicing Agreement. The indemnities contained in this Section
6.2 of the Pooling and Servicing Agreement shall survive the
resignation or termination of the Owner Trustee or the
termination of this Agreement.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 8.1 Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times satisfy the
requirements of Section 26(a)(1) of the Investment Company Act.
The Owner Trustee shall at all times: (a) be a corporation
satisfying the provisions of Section 3807(a) of the Business
Trust Statute; (b) be authorized to exercise corporate trust
powers; (c) have an aggregate capital, surplus and undivided
profits of at least $50,000,000; and (d) be subject to
supervision or examination by federal or state authorities. If
such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this
Section 8.1, the aggregate capital, surplus and undivided profits
of such corporation shall be deemed to be its aggregate capital,
surplus and undivided profits as set forth in its most recent
report of condition so published. If at any time the Owner
Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.1, the Owner Trustee shall resign
immediately in the manner and with the effect specified in
Section 8.2.
SECTION 8.2 Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time give notice of its intent
to resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator; provided that
no such resignation shall become effective, and the Owner Trustee
shall not resign, prior to the time set forth in Section 8.2(c).
The Administrator may appoint a successor Owner Trustee by
delivering written instrument, in duplicate, to the resigning
Owner Trustee and the successor Owner Trustee. If no successor
Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court
of competent jurisdiction for the appointment of a successor
Owner Trustee. The Administrator shall remove the Owner Trustee
if:
(i) the Owner Trustee shall cease to be eligible
in accordance with the provisions of Section 8.1 and shall
fail to resign after written request therefor by the
Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt
or insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the Owner Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be
incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a
vacancy exists in the office of Owner Trustee for any reason, the
Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate (one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and
one copy to the successor Owner Trustee), and shall pay all fees
owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee
and appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section 8.2 shall not become effective,
and no such resignation shall be deemed to have occurred, until a
written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator
and all fees and expenses due to the outgoing Owner Trustee are
paid. The Administrator shall provide notice of such resignation
or removal of the Owner Trustee to the Rating Agency.
(d) The predecessor Owner Trustee shall upon payment
of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this
Agreement. The Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
SECTION 8.3 Successor Owner Trustee. (a) Any
successor Owner Trustee appointed as provided in Section 8.2
shall execute, acknowledge and deliver to the Seller and to its
predecessor Owner Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Owner Trustee.
(b) No successor Owner Trustee shall accept
appointment as provided in this Section 8.3 unless, at the time
of such acceptance, such successor Owner Trustee shall be
eligible under the provisions of Section 8.1.
(c) Upon acceptance of appointment by a successor
Owner Trustee as provided in this Section 8.3, the successor
Owner Trustee shall mail notice of such succession to the
Indenture Trustee and the Certificateholders at the addresses
shown in Section 10.2 of this Agreement.
SECTION 8.4 Merger or Consolidation of Owner
Trustee. Any Person into which the Owner Trustee may be merged
or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Owner Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Owner Trustee, shall be the
successor for the Owner Trustee hereunder, provided such Person
shall be eligible under the provisions of Section 8.1, without
the execution or filing of any paper or any further act on the
party of any of the parties hereto.
SECTION 8.5 Appointment of Co-Owner Trustee or
Separate Owner Trustee. (a) Notwithstanding any other
provisions of this Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or any Lease may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Trust
Estate, and to vest in such Person, in such capacity, such title
to the Trust Estate, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15
days after receipt by it of a request so to do, the Owner Trustee
alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor Owner
Trustee pursuant to Section 8.1, and no notice of the appointment
of any co-trustee or separate trustee shall be required pursuant
to Section 8.3.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be
conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee
joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts
are to be performed, the Owner Trustee shall be incompetent
or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Owner Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to
do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination.
(a) The Trust shall terminate on the date (the "Trust
Termination Date") on which the first of the following occurs:
(i) the termination of the Pooling and Servicing Agreement as
provided in Section 8.1(c) thereof or (ii) at the time provided
in Section 9.2. This Agreement and the obligations of the
parties hereunder (other than Section 7.1 and 7.2 hereof and as
otherwise expressly provided herein) shall terminate and be of no
further force or effect (i) if the Trust Termination Date is
determined pursuant to clause (i) above, on the Trust Termination
Date, or (ii) if the Trust Termination Date is determined
pursuant to clause (ii) above, at the time provided in Section
9.2.
(b) The bankruptcy liquidation or dissolution of any
Certificateholder (other than the Seller as described in Section
9.2) shall not (i) operate to terminate this Agreement or the
Trust, (ii) entitle such Certificateholder's legal
representatives or successors to claim an accounting or take any
action or proceeding in any court for a partition or winding up
of all or any part of the Trust or the Trust Estate or (iii)
otherwise effect the rights, obligations or liabilities of the
parties hereto. Neither the Seller nor the Certificateholders
shall be entitled to revoke or terminate the Trust, nor shall the
Trust be terminated, except as provided in Section 9.1(a).
(c) Upon the winding up of the Trust and its termina-
tion, the Owner Trustee shall cause the Certificate of Trust to
be cancelled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of Section
3810 of the Business Trust Statute.
SECTION 9.2 Dissolution upon Bankruptcy of the
Seller. In the event that any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other
proceeding, voluntary or involuntary, under any federal or state
bankruptcy or similar law (each, an "Insolvency Event") shall
occur with respect to the Seller, the Trust shall terminate,
subject to the liquidation, winding-up and dissolution procedures
described below and subject to the continuation and
reconstitution of the Trust as described below, and provided that
the rights and obligations of the parties to this Agreement shall
not terminate during such liquidation, winding-up and
dissolution. Promptly after the occurrence of any Insolvency
Event with respect to the Seller: (i) the Seller shall give the
Indenture Trustee and the Owner Trustee written notice of such
Insolvency Event; (ii) the Owner Trustee shall, upon the receipt
of such written notice from the Certificateholder, give prompt
written notice to the Indenture Trustee and the other
Certificateholders of the occurrence of such event; and (iii) the
Indenture Trustee shall, upon receipt of written notice of such
Insolvency Event from the Owner Trustee or the Certificateholder,
give prompt written notice to the Noteholders of the occurrence
of such event; provided, however, that any failure to give a
notice required by this sentence shall not prevent or delay in
any manner a termination of the Trust pursuant to the first
sentence of this Section 9.2. Ninety days after the date the
Seller gives the notice described in the preceding sentence,
unless the Owner Trustee shall have received written instructions
from the Noteholders owning Class A Notes representing more than
50% of the outstanding principal balance of the Class A Notes,
from Noteholders owning Class B Notes representing more than 50%
of the outstanding principal balance of the Class B Notes and
from Certificateholders (other than the Seller) representing more
than 50% of the beneficial interests in the Trust (excluding the
Seller) to the effect that each such party disapproves of the
liquidation of the assets held by the Trust and the termination
of the Trust and wishes to continue and reconstitute the Trust
pursuant to terms corresponding to the terms of this Agreement,
the Owner Trustee shall direct the Indenture Trustee promptly to
sell, dispose or otherwise liquidate the assets of the Trust in a
commercially reasonable manner and on commercially reasonable
terms (which may include continuing to hold the Leases and
receiving collections thereon). The proceeds of any such sale,
disposition or liquidation shall be treated as collections on the
Leases under the Pooling and Servicing Agreement and deposited in
the Collection Account, and thereupon this Agreement and the
respective obligations and responsibilities of the Seller, the
Servicer, the Owner Trustee and the Indenture Trustee shall
terminate (except as otherwise expressly provided herein).
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Supplements and Amendments.
(a) This Agreement may be amended from time to time by
the Owner Trustee and the Seller, without the consent of any of
the Noteholders or any Certificateholder, to (i) cure any
ambiguity, (ii) correct or supplement any provisions herein that
may be defective or inconsistent with any other provisions
herein, (iii) add or supplement any liquidity, credit or other
enhancement arrangement for the benefit of any Noteholders
(provided that if any such addition shall affect any class of
Noteholders differently than any other class of Noteholders, then
such addition shall not, as evidenced by an opinion of counsel
for the Seller or the Administrator, adversely affect in any
material respect the interests of any series of Noteholders),
(iv) add to the covenants, restrictions or obligations of the
Seller or the Owner Trustee for the benefit of the Noteholders,
(v) evidence and provide for the acceptance of the appointment of
a successor trustee with respect to the Trust Estate and add to
or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee
pursuant to Article VIII or (vi) add, change or eliminate any
other provision of this Agreement in any manner that shall not,
as evidenced by an opinion of counsel for the Seller or the
Administrator, adversely affect in any material respect the
interests of the Noteholders.
(b) This Agreement may also be amended from time to
time by the Seller and the Owner Trustee, with the consent of the
Certificateholders and the consent of Noteholders owning a
majority in principal amount of the Notes outstanding as of the
close of business on the preceding Payment Date (which consent
shall be obtained by the Indenture Trustee as provided in Section
11.3 of the Indenture, and which consent, whether given pursuant
to this Section 10.1 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on
all future holders of such Notes and of any Notes issued upon the
transfer thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made upon the Notes),
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Certificateholders
or the Noteholders; provided, however, that no such amendment
shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections on Leases or
payments that are required to be made on any Note, (ii) adversely
effect the rating of any class of Notes without the consent of
Noteholders owning a majority in principal amount of such class
of Notes as of the close of business on the preceding Payment
Date or (iii) reduce the aforesaid percentage of Note principal
balance required to consent to any such amendment, without the
unanimous consent of the Noteholders.
(c) Promptly after the execution of any amendment to
the Certificate of Trust, the Owner Trustee shall cause the
filing of such amendment with the Secretary of State if and as
required by the Business Trust Statute.
(d) It shall not be necessary for the consent of the
Noteholders under this Section 10.1 to approve the particular
form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of
the execution thereof by the Noteholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(e) The Owner Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement
or otherwise.
(f) Upon the execution of any amendment to this
Agreement, this Agreement shall be modified in accordance
therewith, and such amendment shall form a part of this Agreement
for all purposes; and every holder of a Certificate theretofore
or thereafter executed and delivered hereunder shall be bound
thereby.
(g) In connection with any amendment pursuant to this
Section 10.1 the Owner Trustee shall be entitled to receive an
opinion of counsel to the Seller or the Administrator acceptable
to the Owner Trustee to the effect that such amendment is
authorized or permitted by the Agreement.
SECTION 10.2 Notices. All demands, communications
and notices pursuant hereto to the Certificateholders, the
Seller, the Administrator, the Owner Trustee or the Indenture
Trustee shall be in writing and delivered or mailed to it at the
following address:
If to the Certificateholders:
To the Seller at the address set forth below for the
Seller and to the Originator at:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller:
TL Lease Funding Corp. IV
Corporate Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrator:
Trans Leasing International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Trustee:
Bankers Trust (Delaware)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Group-
Structured Finance
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee or to the Noteholders:
Manufacturers and Traders Trust Company
▇▇▇ ▇&▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the party may designate by notice to
the other parties hereto, which shall be effective when received.
Any notice required or permitted to be given to the
Certificateholders shall be given by first-class mail, postage
prepaid, at the address as shown in this Section 10.2. Any
notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether
or not the Certificateholders receives such notice.
SECTION 10.3 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided
herein.
SECTION 10.4 Headings. The headings of the various
Articles and Sections herein and the Table of Contents are for
convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.5 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF OR OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.6 Counterparts. This Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
SECTION 10.7 No Legal Title to Trust Estate in
Certificateholders. The Certificateholders shall not have legal
title to any part of the Trust Estate. The Certificateholders
shall be entitled to receive distributions with respect to its
ownership interest only in accordance with Section 3.6 and
Article IX. No transfer, by operation of law or otherwise, of
any right, title or interest of the Certificateholders to and in
its ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 10.8 Limitation on Rights of Others. Except
for the terms of Section 2.7 and 10.1, nothing in this Agreement,
whether express or implied, shall be construed to give to any
Person other than the Owner Trustee, the Seller and the
Certificateholders any legal or equitable right, remedy or claim
under or in respect of this Trust Agreement or any covenants,
conditions or provisions contained herein. Such covenants,
conditions and provisions are, and shall be held to be, for the
sole and exclusive benefit of the Owner Trustee, the Seller and
the Certificateholders.
SECTION 10.9 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof or of any provision in any other
Basic Document, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. The provisions of this
Agreement shall remain valid and enforceable notwithstanding the
invalidity, unenforceability, impossibility or illegality of
performance of any Basic Document.
SECTION 10.10 Successors and Assigns. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, the Owner Trustee, the Seller and the
Certificateholders and their respective successors and assigns.
Any request, notice, direction, consent, waiver or other
instrument or action by the Certificateholders shall bind its
successors and assigns.
SECTION 10.11 No Implied Waiver. No term or provision
of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing entered
into as provided in Section 10.1 hereof; and any such waiver of
the terms hereof shall be effective only in the specific instance
and for the specific purpose given.
SECTION 10.12 No Petition. The Owner Trustee (not in
its individual capacity but solely as Owner Trustee), by entering
into this Agreement, the Certificateholders, by accepting the
Certificates, and the Indenture Trustee and each Noteholder by
accepting the benefits of this Agreement, hereby covenant and
agree that they will not, until one year and one day after
termination of this Agreement, institute against the Seller or
the Trust, or join in any institution against the Seller or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any
federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this
Agreement or any of the Basic Documents.
SECTION 10.13 No Recourse. Each of the Certificate-
holders, by accepting a Certificate, acknowledges that such
Certificate represents a beneficial interest in the Trust only
and does not represent interests in or obligations of the Seller,
the Administrator, the Owner Trustee, the Indenture Trustee or
any Affiliate thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic
Documents. Except as expressly provided in the Basic Documents,
none of the Seller, the Administrator or the Owner Trustee, in
their respective individual capacities, or any of their respective
partners, beneficiaries, agents, officers, directors,
employees or successors or assigns, shall be personally liable
for, or shall recourse be had to any of them for, the distribution
of any amounts owed the Certificateholders with respect to
or interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in the
Certificates or this Agreement, it being expressly understood
that said covenants, obligations and indemnifications have been
made by the Owner Trustee solely as the Owner Trustee. Each of
the Certificateholders, by the acceptance of a Certificate (or
beneficial interest therein), shall agree that, except as expressly
provided in the Basic Documents, in the case of nonpayment of any
amounts with respect to a Certificate, it shall have
no claim against any of the foregoing for any deficiency, loss or
claim therefrom.
SECTION 10.14 Indemnification by and Reimbursement of
the Servicer. The Owner Trustee acknowledges and agrees to
reimburse the Servicer and its directors, officers, employees and
agents in accordance with Section 6.1(b) of the Pooling and
Servicing Agreement. The Owner Trustee further acknowledges and
accepts the conditions and limitations with respect to the
Servicer's obligation to indemnify, defend and hold the Owner
Trustee harmless as set forth in Section 6.2 of the Pooling and
Servicing Agreement.
SECTION 10.15 Confidential Information. The Owner
Trustee agrees that it shall neither use nor disclose to any
Person the names and addresses of the Lessees or the vendors of
the Equipment, except in connection with the enforcement of the
Trust's rights under the Pooling and Servicing Agreement, under
the Indenture or under the Receivables or as required by law.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized this 6th day of October, 1995.
TL LEASE FUNDING CORP. IV
By:
Name:
Title:
Bankers Trust (Delaware),
not in its individual capacity
but solely as Owner Trustee of
TLFC IV EQUIPMENT LEASE TRUST 1995-1
By:
Name:
Title:
EXHIBIT A
FORM OF CERTIFICATE
Form of Face of Certificate
TLFC IV EQUIPMENT LEASE TRUST 1995-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR
AN INTEREST IN TRANS LEASING INTERNATIONAL, INC., TL LEASE
FUNDING CORP. IV, BANKERS TRUST (DELAWARE) OR ANY AFFILIATES
THEREOF.
THIS CERTIFICATE IS NON-TRANSFERABLE.
No. RC-__
This certifies that ___________________________ is the
registered owner of a _____________ (_____%) beneficial interest
in the TLFC IV Equipment Lease Trust 1995-1 (the "Trust"). The
Trust Estate held by the Trust includes among its assets a pool
of leases (the "Leases"), the related equipment (or a security
interest therein) and Collections thereon. The Trust has been
created pursuant to a Trust Agreement dated as of October 6, 1995
between TL Lease Funding Corp. IV, a Delaware corporation, and
Bankers Trust (Delaware), a Delaware banking corporation, not in
its individual capacity but solely as Owner Trustee (herein,
together with its permitted successors in the trusts hereunder,
called the "Owner Trustee").
This Certificate is a Certificate described in the
Trust Agreement, dated as of October 6, 1995 (the "Trust Agreement")
and is issued pursuant and subject to the Trust Agreement.
By acceptance of this Certificate, the holder (the
"Certificateholder") assents to and becomes bound by the Trust
Agreement. To the extent not defined herein, all capitalized
terms have the meanings assigned to them in the Trust Agreement.
Distributions on this Certificate will be made in
accordance with the terms of the Pooling and Servicing Agreement
by wire transfer to a bank account previously identified by the
Certificateholder, without the presentation or surrender of this
Certificate or the making of any notation hereon.
Reference is hereby made to the further provisions of
the Certificate set forth on the reverse hereof, which further
provisions shall have the same effect as if set forth at this
place.
The holder hereof, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Trust
Estate to the extent available for distribution to the holder
hereof as provided in the Pooling and Servicing Agreement for
payment hereunder and that the Owner Trustee in its individual
capacity is not personally liable to the holder hereof for any
amounts payable under the Certificate, the Trust Agreement or the
Pooling and Servicing Agreement or, except as expressly provided
in the Trust Agreement, subject to any liability under the Trust
Agreement or any Basic Document.
This Certificate does not purport to summarize the
Trust Agreement and reference is made to the Trust Agreement for
information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Owner Trustee. Copies of the Trust
Agreement and all amendments thereto will be provided to the
Certificateholder free of charge upon a written request to the
Owner Trustee.
IN WITNESS WHEREOF, the Trust has caused this Certificate
to be duly executed by an Authorized Officer of the Owner
Trustee.
Date: _________ __, 199_ TLFC IV EQUIPMENT LEASE TRUST 1995-1
By: Bankers Trust (Delaware), not
in its individual capacity but
solely as Owner Trustee
By:___________________________
Authorized Officer
Form of Reverse of Certificate
This Certificate represents a ________________ (___%)
beneficial interest in the Trust. This Certificate is limited in
right of payment to certain collections respecting the Leases and
related assets, all as more specifically set forth herein and in
the Trust Agreement and the Pooling and Servicing Agreement.
This Certificate is not insured or guaranteed by any person or
governmental agency.
The Trust Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of
the rights and obligations of the Certificateholder under the
Trust Agreement from time to time by the Owner Trustee and the
Seller with the consent of Noteholders owning a majority in
principal amount of the Notes outstanding. Any such consent by
the Noteholders shall be conclusive and binding on the N
oteholders and on all future holders of such Notes. The Trust
Agreement also permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and
obligations of the Certificateholders under the Trust Agreement
from time to time by the Owner Trustee and the Seller without the
consent of the Noteholders.
As provided for in the Trust Agreement, following the
transfer of a portion of the original Certificate from the Seller
to the Originator as contemplated by the Contribution and Sale
Agreement, Certificates shall not be transferable and each
Certificateholder, by accepting a Certificate, agrees that it
shall not assign any of its interest in a Certificate to any
Person.
As provided in the Trust Agreement, the Owner Trustee
shall establish reasonable procedures to replace the Certificate
in the event the Certificate is mutilated, destroyed, lost or
stolen.
The Owner Trustee and any agent of the Owner Trustee
may treat the person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Owner
Trustee nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the
Trust Agreement (other than Article VII) and the Trust created
thereby shall terminate as provided in Article IX of the Trust
Agreement.
EXHIBIT B
Form of Certificate of Trust
CERTIFICATE OF TRUST OF
TLFC IV EQUIPMENT LEASE TRUST 1995-1
THIS Certificate of Trust of TLFC IV Equipment Lease
Trust 1995-1 (the "Trust"), dated as of October 6, 1995, is being
duly executed and filed by Bankers Trust (Delaware), a Delaware
banking corporation, as trustee, to form a business trust under
the Delaware Business Trust Act (12 Del. C s3801 et seq.).
1. Name. The name of the business trust form hereby
is TLFC IV Equipment Lease Trust 1995-1.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware is Bankers
Trust (Delaware), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
3. This Certificate of Trust shall be effective on
October 6, 1995.
IN WITNESS WHEREOF, the undersigned, being the sole
trustee of the Trust, has executed this Certificate of Trust as
the date first-above written.
BANKERS TRUST (DELAWARE), not in
its individual capacity but solely
as Owner Trustee under a Trust
Agreement dated as of October 6,
1995
By:_______________________________
Name:
Title: