________________________________________________________________________________
METLIFE CAPITAL EQUIPMENT LOAN TRUST [SERIES DESIGNATION]
FORM OF TRUST AGREEMENT
between
METLIFE CAPITAL FUNDING CORP. III,
as Transferor
and
[OWNER TRUSTEE],
as Owner Trustee
Dated as of [________ __, 19__]
________________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Capitalized Terms........................................ 1
SECTION 1.02. Other Definitional Provisions............................ 2
ARTICLE II
ORGANIZATION
SECTION 2.01. Name..................................................... 3
SECTION 2.02. Office................................................... 3
SECTION 2.03. Purpose and Powers....................................... 3
SECTION 2.04. Appointment of Owner Trustee............................. 4
SECTION 2.05. Initial Capital Contribution of Trust Estate............. 4
SECTION 2.06. Declaration of Trust..................................... 4
SECTION 2.07. Title to Trust Property.................................. 4
SECTION 2.08. Situs of Trust........................................... 5
SECTION 2.09. Representations and Warranties of Transferor............. 5
ARTICLE III
CERTIFICATE
SECTION 3.01. Initial Ownership........................................ 6
SECTION 3.02. Form of Certificates..................................... 6
SECTION 3.03. Authentication of Certificate............................ 6
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owner and Transferor with Respect to Certain
Matters ................................................. 7
SECTION 4.02. Action By Owner and Transferor with Respect to Certain
Matters ................................................. 7
SECTION 4.03. Restrictions on Power.................................... 7
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Page
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.01. General Authority........................................ 8
SECTION 5.02. General Duties........................................... 8
SECTION 5.03. Action Upon Instruction.................................. 8
SECTION 5.04. No Duties Except as Specified in This Agreement or in
Instructions ............................................ 9
SECTION 5.05. No Action Except under Specified Documents or Instructions 9
SECTION 5.06. Restrictions............................................. 10
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties.......................... 10
SECTION 6.02. Furnishing of Documents.................................. 11
SECTION 6.03. Representations and Warranties........................... 11
SECTION 6.04. Reliance; Advice of Counsel.............................. 11
SECTION 6.05. Not Acting in Individual Capacity........................ 12
SECTION 6.06. Owner Trustee Not Liable for Certificate, Notes or
Receivables ............................................. 12
SECTION 6.07. Owner Trustee May Own Notes.............................. 13
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
SECTION 7.01. Owner Trustee's Fees and Expenses........................ 13
SECTION 7.02. Indemnification.......................................... 13
SECTION 7.03. Payments to the Owner Trustee............................ 13
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.01. Termination of Trust Agreement........................... 14
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.01. Eligibility Requirements for Owner Trustee............... 14
SECTION 9.02. Resignation or Removal of Owner Trustee.................. 14
SECTION 9.03. Successor Owner Trustee.................................. 15
SECTION 9.04. Merger or Consolidation of Owner Trustee................. 16
SECTION 9.05. Appointment of Co-Trustee or Separate Trustee............ 16
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Supplements and Amendments............................... 17
SECTION 10.02. No Legal Title to Owner Trust Estate in Owner............ 18
SECTION 10.03. Limitations on Rights of Others.......................... 18
SECTION 10.04. Notices.................................................. 18
SECTION 10.05. Severability............................................. 18
SECTION 10.06. Separate Counterparts.................................... 19
SECTION 10.07. Successors and Assigns................................... 19
SECTION 10.08. Covenant of the Transferor............................... 19
SECTION 10.09. No Petition.............................................. 19
SECTION 10.10. No Recourse.............................................. 19
SECTION 10.11. Headings................................................. 19
SECTION 10.12. GOVERNING LAW............................................ 19
SECTION 10.13. Certificate Transfer Restrictions........................ 20
SECTION 10.14. Transferor Payment Obligation............................ 20
EXHIBITS
EXHIBIT A FORM OF CERTIFICATE......................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST.............................B-1
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TRUST AGREEMENT dated as of [________ __, 19__], between METLIFE CAPITAL
FUNDING CORP. III, a Delaware corporation, as Transferor, and [owner trustee], a
Delaware [form of organization], as Owner Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.01. 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
[_________ __, 19__], among the Administrator, the Trust, the Transferor and the
Indenture Trustee, as the same may be amended, modified or supplemented from
time to time.
"Administrator" means Metlife Capital Corporation, a Delaware corporation,
or any successor Administrator under the Administration Agreement.
"Agreement" shall mean this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Basic Documents" shall mean the Contribution and Sale Agreement, the
Transfer and Servicing Agreement, the Indenture, the Administration Agreement,
the Depository Agreement, the Notes, the Certificate and the other documents and
certificates delivered in connection therewith.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from time to
time.
"Certificate" shall mean the certificate evidencing the beneficial interest
of the Owner in the Trust, substantially in the form attached hereto as Exhibit
A.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B which has been filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificateholder" or "Holder" shall mean the Owner.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at [address]; or
at such other address as the Owner Trustee may designate by notice to the
Transferor, or the principal corporate trust office of any successor Owner
Trustee (the address of which the successor owner trustee will notify the
Transferor).
"Depository Agreement" means the agreement among the Trust, the Indenture
Trustee, the Administrator and The Depository Trust Company, dated as of the
Closing Date, substantially in the form of Exhibit C to the Indenture.
"Expenses" shall have the meaning assigned to such term in Section 7.02.
"Indenture Trustee" shall mean [indenture trustee], not in its individual
capacity but solely as Indenture Trustee under the Indenture, and any successor
Indenture Trustee under the Indenture.
"Owner" shall mean [______________________________].
"Owner Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Transfer 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 Transfer
and Servicing Agreement and the Administration Agreement.
"Owner Trustee" shall mean [owner trustee], a Delaware [form of
organization], not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Transfer and Servicing Agreement" shall mean the Transfer and Servicing
Agreement among the Trust, the Transferor, as transferor, and Metlife Capital
Corporation, as servicer, dated as of [________ __, 19__], as the same may be
amended, modified or supplemented from time to time.
"Transferor" shall mean Metlife Capital Funding Corp. III in its capacity
as Transferor hereunder.
"Trust" shall mean the trust established by this Agreement.
SECTION 1.02. Other Definitional Provisions. (a) Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Transfer 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
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meanings given to them under generally accepted accounting principles. 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 document 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 2.01. Name. The Trust created hereby shall be known as "Metlife
Equipment Loan Trust [Series designation]," 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 2.02. Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in the State of
Delaware as the Owner Trustee may designate by written notice to the Transferor.
SECTION 2.03. Purpose and Powers. (a) The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell $[__________] aggregate principal
amount of the Notes to [initial note purchasers] upon the written order of
the Transferor and to issue $1.00 aggregate principal amount of the
Certificate to the Owner upon the written order of the Transferor;
(ii) with the proceeds of the sale of the Notes, to pay the Transferor
the amounts owed pursuant to Section 2.01 of the Transfer and Servicing
Agreement, by directing [__________] as representative of the Transferor to
wire transfer such proceeds in accordance with instructions received from
the Transferor;
(iii) with the proceeds from the sale of the Notes, to fund the
Reserve Account;
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(iv) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Owner pursuant to the terms of the Transfer and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to 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 2.04. Appointment of Owner Trustee. The Transferor 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 2.05. Initial Capital Contribution of Trust Estate. The Transferor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $1 received from the Owner. The Owner Trustee
hereby acknowledges receipt in trust from the Transferor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be held by the Owner Trustee. The Transferor 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 2.06. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Owner, 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 and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, for income
and franchise tax purposes, the Trust shall be disregarded as an entity and
treated as owned in whole by the Transferor. The parties hereto agree that they
will take no action contrary to the foregoing intention. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust.
SECTION 2.07. Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any
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jurisdiction requires title to any part of the Owner 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 2.08. 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 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 will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.09. Representations and Warranties of Transferor. The Transferor
hereby represents and warrants to the Owner Trustee that:
(a) The Transferor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted.
(b) The Transferor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the failure to so qualify or to
obtain such license or approval would render any Receivable unenforceable
that would otherwise be enforceable by the Transferor, the Servicer or the
Owner Trustee.
(c) The Transferor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Transferor has full power
and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust and the Transferor shall have duly authorized
such sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Transferor by all necessary
corporate action.
(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 certificate
of incorporation or by-laws of the Transferor, or any indenture, agreement
or other instrument to which the Transferor 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, to the best of the Transferor's knowledge, any order, rule or
regulation applicable to the Transferor of any court, federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties.
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(e) There are no proceedings or investigations pending, or, to the
best of Transferor's knowledge, threatened, before any court, federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its properties
which (i) assert the invalidity of this Agreement or any of the Basic
Documents, (ii) seek to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, or (iii) seek
any determination or ruling that might materially and adversely affect the
performance by the Transferor of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents.
ARTICLE III
CERTIFICATE
SECTION 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution pursuant to Section 2.05, the Owner shall be the sole beneficiary
of the Trust.
SECTION 3.02. Form of Certificates. The Certificate shall be issued in
registered form in substantially the form of Exhibit A. The Certificate shall be
executed on behalf of the Trust by manual or facsimile signature of a Trust
Officer of the Owner Trustee. The Certificate bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall, when duly
authenticated pursuant to Section 3.03, be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of the Certificate or did not hold such offices at the date of authentication
and delivery of the Certificate.
SECTION 3.03. Authentication of Certificate. Concurrently with the initial
sale of the Receivables to the Trust pursuant to the Transfer and Servicing
Agreement, the Owner Trustee shall cause a single Certificate in an aggregate
principal amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Transferor, signed by its Chairman of the Board, its President, any Vice
President, its Treasurer, its Secretary or any Assistant Treasurer, without
further corporate action by the Transferor. The Certificate shall not entitle
its holder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on the Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authentication agent, by manual signature;
such authentication shall constitute conclusive evidence that the Certificate
shall have been duly authenticated and delivered hereunder. The Certificate
shall be dated the date of its authentication.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owner and Transferor with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless the Owner Trustee shall have notified the Owner and Transferor and
the Owner and Transferor shall have given its prior written consent:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on a Receivable) and the compromise of any action, claim
or lawsuit brought by or against the Trust (other than an action to collect
on a Receivable);
(b) the election by the Trust to file an amendment to the Certificate
of Trust;
(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 Owner and
Transferor;
(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 Owner and Transferor; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar or Trustee, or the consent to the assignment by the Note
Registrar or Trustee of its obligations under the Indenture.
SECTION 4.02. Action By Owner and Transferor with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Owner and Transferor, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 8 thereof, (b) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement, (c) remove
the Servicer under the Transfer and Servicing Agreement pursuant to Section 8.01
thereof or (d) except as expressly provided in the Basic Documents, sell the
Receivables after the termination of the Indenture. The Owner Trustee shall take
the actions referred to in the preceding sentence only upon written instructions
signed by the Owner and Transferor.
SECTION 4.03. Restrictions on Power. The Owner and Transferor 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 2.03 nor shall the Owner Trustee be obligated to follow any such
direction, if given.
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.01. 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, or any
amendment thereto or other agreement, in each case, in such form as the
Transferor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take 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 directs in writing
with respect to the Basic Documents.
SECTION 5.02. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents and to administer the Trust
in the interest of the Owner, subject to the Basic Documents and in accordance
with the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and 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.
SECTION 5.03. Action Upon Instruction. (a) Subject to Article IV, the Owner
may, by written instruction, and with the written consent of the Transferor,
direct the Owner Trustee in the management of the Trust. Such direction may be
exercised at any time by written instruction of the Owner and the Transferor
pursuant to Article IV. The Owner shall, with respect to any action not directed
by the Transferor, act in the capacity as Owner in the best interests of the
Transferor.
(b) 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 any
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Owner 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 Owner 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 within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be
8
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 interest of the Owner, and
shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application of
any provision of this Agreement or any Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Owner requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Basic Documents,
as it shall deem to be in the best interests of the Owner, and shall have no
liability to any Person for such action or inaction.
SECTION 5.04. No Duties Except as Specified in This Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner 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 5.03; 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 prepare or file any Securities and Exchange Commission filing
for the Trust 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
Owner 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 Owner
Trust Estate.
SECTION 5.05. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner 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 5.03.
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SECTION 5.06. Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.03 or
(b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes.
Neither the Owner nor the Transferor shall direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner 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 6.03 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 a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Administrator or any Owner;
(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;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Transferor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or
in respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Certificate, and the Owner
Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Owner, other than as expressly
provided for herein and in the Basic Documents;
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(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee shall
have no obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Transfer
and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Owner, unless the Owner has offered to the Owner
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any 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 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
Noteholders promptly upon written request therefor, copies of the Contribution
and Sale Agreement, the Transfer and Servicing Agreement, the Administration
Agreement and the Trust Agreement.
SECTION 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Transferor, for the benefit of the Owner, that:
(a) It is a [form of organization] 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.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound.
SECTION 6.04. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent,
11
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 other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under 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, 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 6.05. Not Acting in Individual Capacity. Except as provided in this
Article VI, in accepting the trusts hereby created [owner trustee] acts solely
as Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.06. Owner Trustee Not Liable for Certificate, Notes or
Receivables. The recitals contained herein and in the Certificate (other than
the signature and counter-signature of the Owner Trustee on the Certificate and
its representations and warranties in Section 6.03) shall be taken as the
statements of the Transferor and the Owner Trustee assumes no responsibility for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, or of the Certificate (other than the
signature and countersignature of the Owner Trustee on the Certificate) or the
Notes or of any other Basic Document or of any Receivable or related documents.
The Owner Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any Receivable, or
the perfection and priority of any security interest created by any Receivable
in any Financed Equipment or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Owner Trust Estate or
its ability to generate the payments to be distributed to the Certificateholder
under this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Equipment;
the existence and enforceability of any insurance thereon; the existence and
contents of any Receivable on any computer or other record thereof; the validity
of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Transferor or the
12
Servicer with any warranty or representation made under any Basic Document or in
any related document or the accuracy of any such warranty or representation or
any action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 6.07. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the Owner or pledgee of Notes and
may deal with the Transferor, the Administrator, the Indenture Trustee and the
Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
SECTION 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Transferor and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Transferor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder; provided,
however, that the Owner Trustee's right to enforce such obligation shall be
subject to the provisions of Section 10.09.
SECTION 7.02. Indemnification. The Transferor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Transferor shall not be
liable for or required to indemnify the Owner Trustee from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 6.01; provided, however, that the Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 10.09. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Transferor, which approval shall not be unreasonably withheld.
SECTION 7.03. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
13
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.01. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Trust shall terminate and be of no further force or
effect, upon the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture and the Transfer and Servicing Agreement. Any money or other
property held as part of the Owner Trust Estate following such distribution
shall be distributed to the Transferor. The bankruptcy, liquidation,
dissolution, death or incapacity of the Owner shall not (x) operate to terminate
this Agreement or the Trust, or (y) entitle the Owner's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Owner Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither the Transferor nor the
Owner shall be entitled to revoke or terminate the Trust.
(c) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Business Trust Statute; authorized to exercise corporate trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent which has) a rating of at least Baa3 by Moody's and at least
BBB- by Standard & Poor's. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
9.02.
SECTION 9.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice
14
of resignation, the Administrator shall promptly appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator shall fail to mail such notice within
10 days after acceptance of appointment by
15
the successor Owner Trustee, the successor Owner Trustee shall cause such notice
to be mailed at the expense of the Administrator.
SECTION 9.04. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder; provided
such corporation shall be eligible pursuant to Section 9.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; anything herein to the contrary notwithstanding; provided,
further that the Owner Trustee shall mail notice of such merger or consolidation
to the Rating Agencies.
SECTION 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Equipment 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
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
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, but 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
16
(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.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, 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 X
MISCELLANEOUS
SECTION 10.01. Supplements and Amendments. This Agreement may be amended by
the Transferor and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder.
This Agreement may also be amended from time to time by the Transferor and
the Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the Certificateholder, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholder; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the holders
of the Class A Notes or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Class A Notes required to consent to any such amendment, without
the consent of the holders of all the outstanding Class A Notes.
17
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. 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.
SECTION 10.02. No Legal Title to Owner Trust Estate in Owner. The Owner
shall not have legal title to any part of the Owner Trust Estate. No transfer,
by operation of law or otherwise, of any right, title, and interest of the Owner
to and in their ownership interest in the Owner 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 Owner
Trust Estate.
SECTION 10.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
Owner, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 10.04. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Owner
Trustee shall be deemed given only upon actual receipt by the Owner Trustee), if
to the Owner Trustee, addressed to the Corporate Trust Office; if to the
Transferor, addressed to Metlife Capital Funding Corp. III, [address]; if to the
Owner, addressed to [Owner], [address]; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
SECTION 10.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18
SECTION 10.06. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee and its successors and the Owner and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Owner shall bind
the successors and assigns of the Owner.
SECTION 10.08. Covenant of the Transferor. The Transferor agrees that prior
to the termination of the Trust it shall not revoke, modify or otherwise amend
any agreements with Metlife Capital Corporation in effect on the Closing Date in
any manner that would adversely affect the rights of the Transferor to receive
from Metlife Capital Corporation contributions of capital or payments on demand
pursuant to such agreements. The Transferor further covenants and agrees that it
will not enter into any transaction or take any action (other than any
transaction or action contemplated by this Agreement or any of the Basic
Documents) if, as a result of such transaction or action, any rating of either
the Notes by any of the Rating Agencies would be downgraded or withdrawn.
SECTION 10.09. No Petition. The Owner Trustee, by entering into this
Agreement (not in its individual capacity but solely as Owner Trustee), the
Certificateholder, by accepting the Certificate, and the Indenture Trustee and
each Noteholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not, prior to the date which is one year and one day after
the termination of the Trust, institute against the Transferor, or join in any
institution against the Transferor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, this Agreement or any of
the Basic Documents.
SECTION 10.10. No Recourse. The Certificateholder by accepting the
Certificate acknowledges that the Certificate represents the beneficial interest
in the Trust only and does not represent an interest in or obligation of the
Transferor, the Servicer, 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 Certificate or the other Basic Documents.
SECTION 10.11. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
19
SECTION 10.13. Certificate Transfer Restrictions. The Certificate (or any
interest therein) may not be transferred to any Person.
SECTION 10.14. Transferor Payment Obligation. The Transferor shall be
responsible for payment of the Administrator's fees under the Administration
Agreement (to the extent not paid pursuant to Section 5.04 of the Transfer and
Servicing Agreement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
20
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
[OWNER TRUSTEE],
not in its individual capacity
but solely as Owner Trustee,
By: ______________________________
Name:
Title:
METLIFE CAPITAL FUNDING CORP. III,
as Transferor,
By: ______________________________
Name:
Title:
Acknowledged and accepted
with respect to Section 9.02 of this Trust Agreement:
[INDENTURE TRUSTEE],
not in its individual capacity,
solely in its capacity as Indenture Trustee
By:_____________________________________________
Name:
Title:
EXHIBIT A
No. ____ One Unit
[FORM OF CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERRABLE.
A-1
METLIFE CAPITAL EQUIPMENT LOAN TRUST [SERIES DESIGNATION]
OWNER CERTIFICATE
(This Certificate does not represent an interest in or obligation of Metlife
Funding Corporation, Metlife Capital Corporation or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT [OWNER] is the registered Owner of the Metlife Capital
Equipment Loan Trust [Series Designation] (the "Trust") formed by Metlife
Funding Corporation, a Delaware corporation (the "Transferor").
The Trust was created pursuant to a Trust Agreement as of [_________ __,
19__] (the "Trust Agreement"), between the Transferor and [owner trustee], as
owner trustee (the "Owner Trustee"). To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
Trust Agreement or the Transfer and Servicing Agreement dated as [_________ __,
19__] (the "Transfer and Servicing Agreement"), among the Trust, the Transferor
and Metlife Corporation, as servicer (the "Servicer"), as applicable.
This Certificate is the duly authorized Certificate evidencing ownership of
the Trust (herein called the "Certificate"). Also issued under the Indenture
dated as of [_______ __ 19__] between the Trust and the [indenture trustee], as
indenture trustee, are Notes designated as "Asset Backed Notes", (the "Notes").
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Owner by virtue
of the acceptance hereof assents and by which the Owner is bound.
Notwithstanding any prior termination of the Trust Agreement, the Owner, by
its acceptance of the Certificate, covenants and agrees that it shall not, prior
to the date which is one year and one day after the termination of the Trust
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer, under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Transfer and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
METLIFE CAPITAL EQUIPMENT LOAN TRUST
[SERIES DESIGNATION],
By: [OWNER TRUSTEE],
as Owner Trustee
Dated: By: ___________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
[OWNER TRUSTEE], or [OWNER TRUSTEE]
as Owner Trustee as Owner Trustee
By ______________________,
Authenticating Agent
By:___________________________ By:______________________________
Authorized Signatory Authorized Signatory
A-4
EXHIBIT B
CERTIFICATE OF TRUST OF
METLIFE CAPITAL EQUIPMENT LOAN TRUST [SERIES DESIGNATION]
THIS Certificate of Trust of METLIFE CAPITAL EQUIPMENT LOAN TRUST [SERIES
DESIGNATION] (the "Trust"), dated [________ __, 19__], is being duly executed
and filed by [owner trustee], a Delaware [form of organization], as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code, ss.
3801 et seq.).
1. Name. The name of the business trust formed hereby is METLIFE CAPITAL
EQUIPMENT LOAN TRUST [SERIES DESIGNATION].
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is [owner trustee] [address], Attention:
[____________________________].
3. Effective Date. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
[Owner Trustee], not in its
individual capacity but solely
as Owner Trustee,
By: ____________________________
Name:
Title:
B-1