Exhibit 10.2
FORM OF ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of _______________,
200_, among [______________] TRUST 200_-_, a Delaware
business trust (the "Issuer"), ________________________, a
_________ corporation, as administrator (the
"Administrator"), and ________________, a __________ banking
corporation, not in its individual capacity but solely as
Indenture Trustee (the "Indenture Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer is issuing the Class [A-1] Asset Backed Notes and
Class [A-2] Asset Backed Notes, (together, the "Notes") pursuant to the
Indenture dated as of ___________, 200_ (as amended and supplemented from time
to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests
in the Issuer, including (i) a Sale and Servicing Agreement dated as of
___________, 200_ (as amended and supplemented from time to time, the "Sale
and Servicing Agreement"), among the Issuer, ML Asset Backed Corporation., as
depositor (the "Depositor") and ___________________, as servicer (the
"Servicer"), (ii) a Letter of Representations dated ____________, 200_ (as
amended and supplemented from time to time, the "Note Depository Agreement"),
among the Issuer, the Indenture Trustee, the Administrator and The Depository
Trust Company ("DTC") relating to the Notes, (iii) a Letter of Representations
dated ______________, 200_ (as amended and supplemented from time to time, the
"Certificate Depository Agreement", and together with the Note Depository
Agreement, the "Depository Agreements"), among the Issuer, the Administrator,
the Owner Trustee and DTC relating to the Certificates and (iv) the Indenture
(the Sale and Servicing Agreement, the Depository Agreements and the Indenture
being referred to hereinafter collectively as the "Related Agreements");
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the
Notes and the collateral therefor pledged pursuant to the Indenture (the
"Collateral") and (b) the beneficial ownership interests in the Issuer (the
registered holders of such interests being referred to herein as the
"Owners");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner
Trustee referred to in the preceding clause and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer and the Owner Trustee may from time to time request;
and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator. (a) Duties with Respect to the
Depository Agreements and the Indenture. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer and the
Owner Trustee under the Depository Agreements. In addition, the Administrator
shall consult with the Owner Trustee regarding the duties of the Issuer or the
Owner Trustee under the Indenture and the Depository Agreements. The
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the Issuer's or the
Owner Trustee's duties under the Indenture and the Depository Agreements. The
Administrator shall prepare for execution by the Issuer, or shall cause the
preparation by other appropriate persons of, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of
the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture and the Depository Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of the Issuer
or the Owner Trustee to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to sections of the
Indenture):
(A) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment
of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any specified
record date and the notification of the Indenture Trustee
and Noteholders with respect to special payment dates, if
any (Section 2.07(c));
(D) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and
delivery of the same to the Indenture Trustee (Section
2.02);
(E) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of collateral (Section 2.09);
(F) the maintenance of an office in the Borough of
Manhattan, City of New York, for registration of transfer
or exchange of Notes (Section 3.02);
(G) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.03);
(H) the direction to the Indenture Trustee to deposit
moneys with Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(J) the preparation of all supplements and amendments to
the Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Trust Estate (Section
3.05);
(K) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to
the Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance
with the Indenture (Sections 3.06 and 3.09);
(L) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture
(Section 3.07(b));
(M) the notification of the Indenture Trustee and the
Rating Agencies of a Servicer Default under the Sale and
Servicing Agreement and, if such Servicer Default arises
from the failure of the Servicer to perform any of its
duties under the Sale and Servicing Agreement with respect
to the Receivables, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(N) the duty to cause the Servicer to comply with Sections
4.09, 4.10, 4.11 and 5.09 and Article XI of the Sale and
Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(P) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer or the Depositor
under the Sale and Servicing Agreement (Section 3.19);
(Q) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining
of the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(R) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust
Estate in a commercially reasonable manner if an Event of
Default shall have occurred and be continuing (Section
5.04);
(S) the preparation and delivery of notice to Noteholders
of the removal of the Indenture Trustee and the appointment
of a successor Indenture Trustee (Section 6.08);
(T) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or
separate trustee and any written instruments necessary in
connection with the resignation or removal of any
co-trustee or separate trustee (Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.01);
(V) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies
and the Indenture Trustee of documents required to be filed
on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the
Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the
Noteholders (Section 7.03);
(W) the opening of one or more accounts in the Issuer's
name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all
other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02
and 8.03);
(X) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of
the Trust Estate (Sections 8.04 and 8.05);
(Y) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(Z) the execution and delivery of new Notes conforming to
any supplemental indenture (Section 9.06);
(AA) the duty to notify Noteholders of redemption of the
Notes or to cause the Indenture Trustee to provide such
notification (Section 10.02);
(BB) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to
the Indenture Trustee to take any action under the
Indenture (Section 11.01(a));
(CC) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
(DD) the notification of the Rating Agencies, upon the
failure of the Indenture Trustee to give such notification,
of the information required pursuant to Section 11.04 of
the Indenture (Section 11.04);
(EE) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06);
(FF) the recording of the Indenture, if applicable (Section
11.15);
(GG) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.12); and
(HH) the appointment of any successor Calculation Agent
(Section 2.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee (and any separate trustee or
co-trustee appointed pursuant to Section 6.10 of the
Indenture (a "Separate Trustee")) from time to time
reasonable compensation for all services rendered by the
Indenture Trustee or Separate Trustee, as the case may be,
under the Indenture (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the
Indenture, reimburse the Indenture Trustee or any Separate
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
Indenture Trustee or Separate Trustee, as the case may be,
in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith;
(C) indemnify the Indenture Trustee and any Separate
Trustee and their respective agents for, and hold them
harmless against, any losses, liability or expense incurred
without negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration
of the transactions contemplated by the Indenture,
including the reasonable costs and expenses of defending
themselves against any claim or liability in connection
with the exercise or performance of any of their powers or
duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and
hold them harmless against, any losses, liability or
expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance
or administration of the transactions contemplated by the
Trust Agreement, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement.
(b) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements or Section
5.05(a), (b), (c) or (d) of the Trust Agreement, and at the request of the
Owner Trustee shall take all appropriate action that it is the duty of the
Issuer or the Owner Trustee to take pursuant to the Related Agreements. In
furtherance thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions. Subject
to Section 5 of this Agreement, and in accordance with the directions of the
Owner Trustee, the Administrator shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Related Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator. Such responsibilities
shall include the obtainment and maintenance of any licenses required to be
obtained or maintained by the Trust under the Pennsylvania Motor Vehicle Sales
Finance Act. In addition, the Administrator shall promptly notify the
Indenture Trustee and the Owner Trustee in writing of any amendment to the
Pennsylvania Motor Vehicle Sales Finance Act that would affect the duties or
obligations of the Indenture Trustee or the Owner Trustee under any Basic
Document and shall assist the Indenture Trustee or the Owner Trustee in its
obtainment and maintenance of any licenses required to be obtained or
maintained by the Indenture Trustee or the Owner Trustee thereunder. In
connection therewith, the Administrator shall cause the Depositor to pay all
fees and expenses under such Act.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Trust's payments (or allocations of income) to an Owner as
contemplated in Section 5.02(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld by the Owner
Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section 5.05(a),
(b), (c) and (d), the penultimate sentence of Section 5.05 and Section 5.06(a)
of the Trust Agreement with respect to, among other things, accounting and
reports to Owners; provided, however, that the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s necessary to enable
each Owner to prepare its federal and state income tax returns.
(iv) The Administrator shall satisfy its obligations
with respect to clauses (ii) and (iii) above by retaining, at the expense of
the Trust payable by the Administrator, a firm of independent public
accountants (the "Accountants") acceptable to the Owner Trustee, which shall
perform the obligations of the Administrator thereunder. In connection with
paragraph (ii) above, the Accountants will provide prior to[_________], 200_,
a letter in form and substance satisfactory to the Owner Trustee as to whether
any tax withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the Code. The
Accountants shall be required to update the letter in each instance that any
additional tax withholding is subsequently required or any previously required
tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance
with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(c) Non-Ministerial Matters. (i) With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought
by or against the Issuer (other than in connection with the
collection of the Receivables or Eligible Investment
Receivables);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to
the Indenture or the appointment of successor
Administrators or Successor Servicers, or the consent to
the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations under the Indenture;
and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x)
make any payments to the Noteholders under the Related Agreements, (y) sell
the Trust Estate pursuant to Section 5.04 of the Indenture or (z) take any
other action that the Issuer directs the Administrator not to take on its
behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Company at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $_______ per
month which shall be solely an obligation of the Depositor.
4. Additional Information To Be Furnished to Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Owner Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in
any way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of
Administrator. (a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days' prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days' prior
written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall
occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot be
cured in such time, shall not give within ten days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter
a decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, shall consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven days after
the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect
to the proposed appointment.
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Sale and Servicing Agreement, the Administrator shall immediately resign and
such Successor Servicer shall automatically become the Administrator under
this Agreement.
9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8(a) or the resignation or removal of the Administrator pursuant to Section
8(b) or (c), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 8(b) or (c), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist
the Issuer in making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
[___________________] Trust 200_-_
c/o _____________________
____________________________________
____________________________________
Attention: ________________________
(b) if to the Administrator, to:
____________________________________
____________________________________
____________________________________
Attention: _______________
(c) if to the Indenture Trustee, to:
____________________________________
____________________________________
____________________________________
Attention: _______________
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Noteholders or Certificateholders; provided that such amendment
will not, in the Opinion of Counsel satisfactory to the Indenture Trustee,
materially and adversely affect the interest of any Noteholder or
Certificateholder. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the holders of Notes evidencing at least a majority of the
Outstanding Amount of the Notes and the holders of Certificates evidencing at
least a majority of the Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or
the Certificateholders; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or Certificateholders
or (ii) reduce the aforesaid percentage of the holders of Notes and
Certificates which are required to consent to any such amendment, without the
consent of the holders of all the outstanding Notes and Certificates.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Depositor, which permission shall not be
unreasonably withheld.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization
executes and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement in which such corporation or other organization agrees to
be bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
17. Not Applicable to the Administrator in Other Capacities. Nothing
in this Agreement shall affect any obligation ________________ may have in any
other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by ___________________ not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event
shall _____________________ in its individual capacity or any beneficial owner
of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by __________________ not in its individual
capacity but solely as Indenture Trustee and in no event shall
______________________ have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
* * * * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
[_________________] TRUST 200_-_
By: _________________________,
not in its individual capacity
but solely as Owner Trustee on
behalf of the Trust
By:
Name:
Title:
[________________________________],
not in its individual capacity
but solely as Indenture Trustee
By:
Name:
Title:
[________________________________]
as Administrator
By: ___________________________________
Name:
Title:
EXHIBIT A
POWER OF ATTORNEY
STATE OF __________ }
}
COUNTY OF _________ }
KNOW ALL MEN BY THESE PRESENTS, that
___________________________________, a ______________ banking corporation, not
in its individual capacity but solely as owner trustee (the "Owner Trustee")
for [_____________] Trust 200_-__ (the "Trust"), does hereby make, constitute
and appoint ____________________, as administrator under the Administration
Agreement dated ______________ (the "Administration Agreement"), among the
Trust, the Administrator and ___________________________________________, as
Indenture Trustee, as the same may be amended from time to time, and its
agents and attorneys, as Attorneys-in-Fact to execute on behalf of the Owner
Trustee or the Trust all such documents, reports, filings, instruments,
certificates and opinions as it should be the duty of the Owner Trustee or the
Trust to prepare, file or deliver pursuant to the Basic Documents, or pursuant
to Section 5.05(a), (b), (c) or (d) of the Trust Agreement, including, without
limitation, to appear for and represent the Owner Trustee and the Trust in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and
all acts associated with such returns and audits that the Owner Trustee could
perform, including without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to audits,
initiate and defend litigation, and to execute waivers of restrictions on
assessments of deficiencies, consents to the extension of any statutory or
regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein
shall have the meanings ascribed thereto in the Administration Agreement.
EXECUTED this ___ of _____________, 200_.
[_________________________________],
not in its individual capacity but
solely as Owner Trustee
___________________________________
Name:
Title:
STATE OF ___________ }
}
COUNTY OF _________ }
Before me, the undersigned authority, on this day personally appeared
__________________________________________________________ , known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she signed the same for the purposes and
considerations therein expressed.
Sworn to before me this ___ day of _______, 200__.
Notary Public - State of
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