EXHIBIT 99.2
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 20[__]-[__]
AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
AS THE DEPOSITOR
AND
[____________],
AS THE OWNER TRUSTEE
DATED AS OF [__________]
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1. Capitalized Terms...................................... 1
SECTION 1.2. Other Interpretive Provisions.......................... 1
ARTICLE II ORGANIZATION.................................................. 2
SECTION 2.1. Name................................................... 2
SECTION 2.2. Office................................................. 2
SECTION 2.3. Purposes and Powers.................................... 2
SECTION 2.4. Appointment of the Owner Trustee....................... 3
SECTION 2.5. Initial Capital Contribution of Trust Estate........... 3
SECTION 2.6. Declaration of Trust................................... 3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.... 3
SECTION 2.8. Title to the Trust Estate.............................. 3
SECTION 2.9. Representations and Warranties of the Seller........... 3
SECTION 2.10. Situs of Issuer........................................ 4
ARTICLE III CERTIFICATE AND TRANSFER OF CERTIFICATE...................... 5
SECTION 3.1. Initial Ownership...................................... 5
SECTION 3.2. Authentication of Certificate.......................... 5
SECTION 3.3. Form of the Certificate................................ 5
SECTION 3.4. Registration of Certificates........................... 5
SECTION 3.5. Transfer of Certificate................................ 5
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates...... 6
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................... 7
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters........................................ 7
SECTION 4.2. Action by Certificateholder with Respect to
Certain Matters........................................ 7
SECTION 4.3. Action by Certificateholder with Respect to
Bankruptcy............................................. 7
SECTION 4.4. Restrictions on Certificateholder's Power.............. 8
SECTION 4.5. Majority Control....................................... 8
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................... 8
SECTION 5.1. Application of Trust Funds............................. 8
SECTION 5.2. Method of Payment...................................... 8
SECTION 5.3. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act..................................... 8
SECTION 5.4. Signature on Returns................................... 8
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................... 8
SECTION 6.1. General Authority...................................... 8
SECTION 6.2. General Duties......................................... 9
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 6.3. Action upon Instruction................................ 9
SECTION 6.4. No Duties Except as Specified in this Agreement or
in Instructions........................................ 10
SECTION 6.5. No Action Except under Specified Documents or
Instructions........................................... 10
SECTION 6.6. Restrictions........................................... 11
ARTICLE VII CONCERNING OWNER TRUSTEE..................................... 11
SECTION 7.1. Acceptance of Trusts and Duties........................ 11
SECTION 7.2. Furnishing of Documents................................ 12
SECTION 7.3. Representations and Warranties......................... 12
SECTION 7.4. Reliance; Advice of Counsel............................ 12
SECTION 7.5. Not Acting in Individual Capacity...................... 13
SECTION 7.6. The Owner Trustee May Own Notes........................ 13
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................... 13
SECTION 8.1. The Owner Trustee's Compensation....................... 13
SECTION 8.2. Indemnification........................................ 13
SECTION 8.3. Payments to the Owner Trustee.......................... 14
ARTICLE IX TERMINATION OF TRUST AGREEMENT................................ 14
SECTION 9.1. Termination of Trust Agreement......................... 14
SECTION 9.2. Dissolution of the Issuer.............................. 14
SECTION 9.3. Limitations on Termination............................. 15
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES......... 15
SECTION 10.1. Eligibility Requirements for the Owner Trustee......... 15
SECTION 10.2. Resignation or Removal of the Owner Trustee............ 15
SECTION 10.3. Successor Owner Trustee................................ 16
SECTION 10.4. Merger or Consolidation of the Owner Trustee........... 16
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.......... 16
ARTICLE XI MISCELLANEOUS................................................. 18
SECTION 11.1. Amendments............................................. 18
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder.... 19
SECTION 11.3. Limitations on Rights of Others........................ 19
SECTION 11.4. Notices................................................ 19
SECTION 11.5. Severability........................................... 19
SECTION 11.6. Separate Counterparts.................................. 19
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 11.7. Successors and Assigns................................. 19
SECTION 11.8. No Petition............................................ 19
SECTION 11.9. Headings............................................... 21
SECTION 11.10. GOVERNING LAW.......................................... 21
Exhibit A Form of Certificate
-iii-
This AMENDED AND RESTATED TRUST AGREEMENT is made as of [______________]
(as from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement") between VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, a
Delaware limited liability company, as the depositor (the "Seller"), and
[______________], a [Delaware banking corporation] ("Trustee Bank"), as the
owner trustee (in such capacity, the "Owner Trustee").
RECITALS
WHEREAS, the Seller and the Owner Trustee entered into that certain Trust
Agreement dated as of [_____________] (the "Original Trust Agreement"), pursuant
to which the Issuer (as defined below) was created; and
WHEREAS, in connection with the issuance of the Notes, the parties have
agreed to amend and restate the Original Trust Agreement;
NOW THEREFORE, IN CONSIDERATION of the mutual agreements herein contained,
and of other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Unless otherwise indicated, capitalized
terms used in this Agreement are defined in Appendix A to the Sale and Servicing
Agreement dated as of the date hereof (as from time to time amended,
supplemented or otherwise modified and in effect, the "Sale and Servicing
Agreement") among the Issuer, the Seller, VW Credit, Inc., as servicer, and
[_______________], as indenture trustee, as the same may be amended, modified or
supplemented from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under GAAP;
(b) terms defined in Article 9 of the UCC as in effect in the State of Delaware
and not otherwise defined in this Agreement are used as defined in that Article;
(c) the words "hereof," "herein" and "hereunder" and words of similar import
refer to this Agreement as a whole and not to any particular provision of this
Agreement; (d) references to any Article, Section, Schedule or Exhibit are
references to Articles, Sections, Schedules and Exhibits in or to this
Agreement, and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (e) the
term "including" means "including without limitation"; (f) references to any law
or regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; and (g) references to any Person
include that Person's successors and assigns.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created under the Original Trust Agreement
shall be known as "Volkswagen Auto Loan Enhanced Trust 20_-__" (the
"Issuer"), in which name the Owner Trustee may conduct the business of such
trust, make and execute contracts and other instruments on behalf of such trust
and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificateholder, the Seller and
the Administrator.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell, transfer and exchange the Notes
and the Certificate and to pay interest on and principal of the Notes and
distributions on the Certificate;
(b) to acquire the property and assets set forth in the Sale and
Servicing Agreement from the Seller pursuant to the terms thereof, to make
deposits to and withdrawals from the Collection Account, the Principal
Distribution Account and the Reserve Account and to pay the organizational,
start-up and transactional expenses of the Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder any portion of the Trust Estate released from the lien
of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction
Documents to which it is a party;
(e) 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
(f) subject to compliance with the Transaction Documents, to engage in
such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions to the Certificateholder
and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Issuer. Neither the Issuer nor the Owner Trustee on behalf of the
Issuer shall engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement or the
other Transaction Documents.
2
SECTION 2.4. Appointment of the Owner Trustee. The Seller hereby appoints
the Owner Trustee as trustee of the Issuer effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. As of the date
of the Original Trust Agreement, the Seller sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Seller, as of such date, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be deposited in the Collection Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholder, subject to the
obligations of the Issuer under the Transaction Documents. It is the intention
of the parties hereto that the Issuer constitute a statutory trust under the
Statutory Trust Statute and that this Agreement constitute the governing
instrument of such statutory trust. It is the intention of the parties hereto
that, solely for income and franchise tax purposes, the Issuer will be
disregarded as an entity separate from the Seller, the Seller will be
disregarded as an entity separate from VCI and the Notes will be characterized
as debt. The parties agree that, unless otherwise required by appropriate tax
authorities, the Issuer will not file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Issuer as an entity separate from its owner. In the event that the Issuer
is deemed to have more than one beneficial owner for federal income tax
purposes, the Issuer will file returns, reports and other forms consistent with
the characterization of the Issuer as a partnership, and this Agreement shall be
amended to include such provisions as may be required under Subchapter K of the
Internal Revenue Code of 1986, as amended. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein and in
the Statutory Trust Statute with respect to accomplishing the purposes of the
Issuer. The Owner Trustee filed the Certificate of Trust with the Secretary of
State of the State of Delaware as required by Section 3810(a) of the Statutory
Trust Statute. Notwithstanding anything herein or in the Statutory Trust Statute
to the contrary, it is the intention of the parties hereto that the Issuer
constitute a "business trust" within the meaning of Section 101(9)(A)(v) of the
Bankruptcy Code.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Servicer shall pay organizational expenses of the Issuer as
they may arise.
(b) No Certificateholder (including the Seller) shall have any
personal liability for any liability or obligation of the Issuer.
SECTION 2.8. Title to the Trust Estate. Legal title to all the Trust Estate
shall be vested at all times in the Issuer as a separate legal entity.
SECTION 2.9. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) Existence and Power. The Seller is a Delaware limited liability
company validly existing and in good standing under the laws of the State
of Delaware and has, in
3
all material respects, all power and authority required to carry on its
business as now conducted. The Seller has obtained all necessary licenses
and approvals in each jurisdiction where the failure to do so would
materially and adversely affect the ability of the Seller to perform its
obligations under the Transaction Documents and the Underwriting Agreement.
(b) Authorization and No Contravention. The execution, delivery and
performance by each Seller of each Transaction Document to which it is a
party (i) have been duly authorized by all necessary action on the part of
the Seller and (ii) do not contravene or constitute a default under (A) any
applicable law, rule or regulation, (B) its organizational instruments or
(C) any material agreement, contract, order or other instrument to which it
is a party or its property is subject (other than violations of such laws,
rules, regulations, indenture or agreements which do not affect the
legality, validity or enforceability of any of such agreements and which,
individually or in the aggregate, would not materially and adversely affect
the transactions contemplated by, or the Seller's ability to perform its
obligations under, the Transaction Documents to which it is a party).
(c) No Consent Required. No approval, authorization or other action
by, or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Seller of any
Transaction Document other than UCC filings and other than approvals and
authorizations that have previously been obtained and filings which have
previously been made.
(d) Binding Effect. Each Transaction Document and the Underwriting
Agreement to which the Seller is a party constitutes the legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship or other similar laws affecting creditors'
rights generally and, if applicable the rights of creditors of limited
liability companies from time to time in effect or by general principles of
equity or other similar laws of general application relating to or
affecting the enforcement of creditors' rights generally and subject to
general principles of equity.
(e) No Proceedings. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Seller, threatened
against the Seller which, either in any one instance or in the aggregate,
would result in any material adverse change in the business, operations,
financial condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its business
substantially as now conducted, or in any material liability on the part of
the Seller, or which would render invalid this Agreement or the Receivables
or the obligations of the Seller contemplated herein, or which would
materially impair the ability of the Seller to perform under the terms of
this Agreement or any other Transaction Document.
SECTION 2.10. Situs of Issuer. The Issuer shall be located in the State of
Delaware and administered in the State of Delaware or the State of New York. All
bank accounts maintained by the Owner Trustee on behalf of the Issuer shall be
located in the State of Delaware or the
4
State of New York. The Issuer shall not have any employees in any state;
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 Issuer only in Delaware or New York and payments will be
made by the Issuer only from Delaware or New York.
ARTICLE III
CERTIFICATE AND TRANSFER OF CERTIFICATE
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer and until
the issuance of the Certificate, the Seller is the sole beneficiary of the
Issuer; and upon the issuance of the Certificate, the Seller will no longer be a
beneficiary of the Issuer, except to the extent that the Seller is the
Certificateholder.
SECTION 3.2. Authentication of Certificate. Concurrently with the sale of
the Transferred Assets to the Issuer pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Issuer, authenticated and delivered to or upon the written order
of the Seller, signed by its chairman of the board, its president, its chief
financial officer, its chief accounting officer, any vice president, its
secretary, any assistant secretary, its treasurer or any assistant treasurer,
without further corporate action by the Seller. The Certificate shall have an
initial aggregate principal amount equal to the Initial Certificate Balance,
shall represent the entire beneficial interest in the Issuer, and shall be
fully-paid and nonassessable.
SECTION 3.3. Form of the Certificate. The Certificate, upon original
issuance, will be issued in the form of a typewritten Certificate representing a
definitive Certificate and shall be registered in the name of "[_____________]"
as the initial registered owner thereof. The Owner Trustee shall execute and
authenticate, or cause to be authenticated, the definitive Certificate in
accordance with the instructions of the Seller.
SECTION 3.4. Registration of Certificates. The Owner Trustee shall maintain
at its office referred to in Section 2.2, or at the office of any agent
appointed by it and approved in writing by the Certificateholder at the time of
such appointment, a register for the registration and transfer of the
Certificate.
SECTION 3.5. Transfer of Certificate. (a) The Certificateholder may assign,
convey or otherwise transfer all or any of its right, title and interest in the
Certificate; provided that (i) the Rating Agency Condition is satisfied, (ii)
the Owner Trustee and the Issuer receive an Opinion of Counsel stating that, in
the opinion of such counsel, such transfer (a) will not adversely affect the tax
characterization as debt of Notes of any outstanding Class that were
characterized as debt for federal income tax purposes at the time of their
issuance; (b) will not cause the Issuer to be deemed to be an association (or
publicly traded partnership) taxable as a corporation; and (c) will not cause or
constitute an event in which gain or loss would be recognized by any Noteholder,
and (iii) the Certificate may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
whether or not subject to the provisions of Title I of ERISA, (b) a plan
described in Section 4975 of the Code or (c) any entity whose underlying assets
include plan assets by reason of an employee benefit plan's or a plan's
5
investment in the entity. By accepting and holding the Certificate, the holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing on behalf of a Benefit Plan. The Owner
Trustee shall have no duty to independently determine that the requirement in
(iii) above is met and shall incur no liability to any person in the event the
holder of the Certificate does not comply with such restrictions. Subject to the
transfer restrictions contained herein and in the Certificate, the
Certificateholder may transfer all or any portion of the beneficial interest in
the Issuer evidenced by the Certificate upon surrender thereof to the Owner
Trustee accompanied by the documents required by this Section. Such transfer may
be made by the registered Certificateholder in person or by his attorney duly
authorized in writing upon surrender of the Certificate to the Owner Trustee
accompanied by a written instrument of transfer and with such signature
guarantees and evidence of authority of the Persons signing the instrument of
transfer as the Owner Trustee may reasonably require. Promptly upon the receipt
of such documents and receipt by the Owner Trustee of the transferor's
Certificate, the Owner Trustee shall record the name of such transferee as the
Certificateholder and its percentage of beneficial interest in the Issuer in the
Certificate register and issue, execute and deliver to such Certificateholder
the Certificate evidencing such beneficial interest in the Issuer. In the event
a transferor transfers only a portion of its beneficial interest in the Issuer,
the Owner Trustee shall register and issue, to such transferor a new Certificate
evidencing such transferor's new percentage of beneficial interest in the
issuer. Subsequent to a transfer and upon the issuance of the new Certificate or
Certificates, the Owner Trustee shall cancel and destroy the Certificate
surrendered to it in connection with such transfer. The Owner Trustee may treat
the Person in whose name the Certificate is registered as the sole owner of the
beneficial interest in the Issuer evidenced by the Certificate.
(b) As a condition precedent to any registration of transfer under
this Section 3.5, the Owner Trustee may require the payment of a sum
sufficient to cover the payment of any tax or taxes or other governmental
charges required to be paid in connection with such transfer.
(c) The Owner Trustee shall not be obligated to register any transfer
of the Certificate unless each of the transferor and the transferee have
certified to the Owner Trustee that such transfer does not violate any of
the transfer restrictions stated herein. The Owner Trustee shall not be
liable to any Person for registering any transfer based on such
certifications.
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates. If (i) any
mutilated Certificate is surrendered to the Owner Trustee, or (ii) the Owner
Trustee receives evidence to its satisfaction that the Certificate has been
destroyed, lost or stolen, and upon proof of ownership satisfactory to the Owner
Trustee together with such security or indemnity as may be requested by the
Owner Trustee to save it harmless, the Owner Trustee shall execute and deliver a
new Certificate for the same percentage of beneficial interest in the Issuer as
the Certificate so mutilated, destroyed, lost or stolen, of like tenor and
bearing a different issue number, with such notations, if any, as the Owner
Trustee shall determine. Upon the issuance of any new Certificate under this
Section 3.6, the Issuer or Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate and any other
reasonable expenses (including the reasonable fees and expenses of the Issuer
and the Owner Trustee) connected therewith. Any
6
duplicate Certificate issued pursuant to this Section 3.6 shall constitute
complete and indefeasible evidence of ownership in the Issuer, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that the
Certificateholder has withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) 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 interests of the
Certificateholder;
(c) the amendment, change or modification of the Sale and Servicing
Agreement, or the Administration Agreement, except to cure any ambiguity or
defect or to amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholder; or
(d) the appointment pursuant to the Indenture of a successor Indenture
Trustee or the consent to the assignment by the Note Registrar or the
Indenture Trustee of its obligations under the Indenture or this Agreement,
as applicable.
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholder, to (a) except as expressly provided in the Transaction
Documents, sell the Collateral after the termination of the Indenture in
accordance with its terms, (b) remove the Administrator under the Administration
Agreement pursuant to Section 8 thereof or (c) appoint a successor Administrator
pursuant to Section 8 of the Administration Agreement. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholder.
SECTION 4.3. Action by Certificateholder with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer until one year and one day after the
Outstanding Amount of all the Notes has been reduced to zero and without the
prior written approval of the Certificateholder and the delivery to the Owner
Trustee by the Certificateholder of a certificate certifying that the
Certificateholder reasonably believes that the Issuer is insolvent.
7
SECTION 4.4. Restrictions on Certificateholder's Power. The
Certificateholder 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 Issuer or the Owner Trustee under this Agreement or any of the
Transaction Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. To the extent that there is more than one
Certificateholder, any action which may be taken or consent or instructions
which may be given by the Certificateholder under this Agreement may be taken by
Certificateholders holding in the aggregate a percentage of the beneficial
interest in the Issuer equal to more than 50% of the beneficial interest in the
Issuer at the time of such action.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds. Distributions on the Certificate
shall be made in accordance with the provisions of the Indenture and the Sale
and Servicing Agreement. Subject to the lien of the Indenture, the Owner Trustee
shall promptly distribute to the Certificateholder all other amounts (if any)
received by the Issuer or the Owner Trustee in respect of the Trust Estate.
After the termination of the Indenture in accordance with its terms, the Owner
Trustee shall distribute all amounts received (if any) by the Issuer and the
Owner Trustee in respect of the Trust Estate at the direction of the
Certificateholder.
SECTION 5.2. Method of Payment. Subject to the Indenture, distributions
required to be made to the Certificateholder on any Payment Date and all amounts
received by the Issuer or the Owner Trustee on any other date that are payable
to the Certificateholder pursuant to this Agreement or any other Transaction
Document shall be made to the Certificateholder by wire transfer, in immediately
available funds, to the account of the Certificateholder designated by the
Certificateholder to the Owner Trustee and Indenture Trustee in writing.
SECTION 5.3. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Notwithstanding anything to the contrary
herein or in any Transaction Document, the Owner Trustee shall not be required
to execute, deliver or certify in accordance with the provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act on behalf of the Issuer or any other Person, any periodic
reports filed pursuant to the Exchange Act, or any other documents pursuant to
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
SECTION 5.4. Signature on Returns. Subject to Section 2.6, the
Certificateholder shall sign on behalf of the Issuer the tax returns of the
Issuer, unless applicable law requires the Owner Trustee to sign such documents,
in which case such documents shall be signed by the Owner Trustee at the written
direction of the Certificateholder.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Issuer is
named as a party, and each
8
certificate or other document attached as an exhibit to or contemplated by the
Transaction Documents to which the Issuer or the Owner Trustee is named as a
party and any amendment thereto, in each case, in such form as the Seller shall
approve, as evidenced conclusively by the Owner Trustee's execution thereof, and
at the written direction of the Seller, to direct the Indenture Trustee to
authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$[__________], Class A-2 Notes in the aggregate principal amount of
$[__________], Class A-3 Notes in the aggregate principal amount of
$[__________] and Class A-4 Notes in the aggregate principal amount of
$[__________]. In addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required of the Issuer pursuant
to the Transaction Documents. The Owner Trustee is further authorized from time
to time to take such action as the Seller or the Administrator recommends or
directs in writing with respect to the Transaction Documents, except to the
extent that this Agreement expressly requires the consent of the
Certificateholder for such action.
SECTION 6.2. 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 other Transaction Documents and to
administer the Issuer in the interest of the Certificateholder, subject to
Transaction Documents, and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Transaction
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Issuer or the Owner
Trustee hereunder or under any Transaction 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 and shall have no duty to monitor
the performance of the Administrator or any other Person under the
Administration Agreement or any other document. The Owner Trustee shall have no
obligation to administer, service or collect the Receivables or to maintain,
monitor or otherwise supervise the administration, servicing or collection of
the Receivables. The Owner Trustee shall not be required to perform any of the
obligations of the Issuer under any Transaction Document that are required to be
performed by the Servicer, the Seller, the Administrator or the Indenture
Trustee.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Certificateholder may, by written
instruction, direct the Owner Trustee in the management of the Issuer. Such
direction may be exercised at any time by written instruction of the
Certificateholder pursuant to Article IV.
(b) Subject to Section 7.1, the Owner Trustee shall not be required to
take any action hereunder or under any Transaction Document if the Owner
Trustee shall have reasonably determined or been advised by counsel that
such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Transaction Document
or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Transaction Document or is unsure as to the application of any
provision of this Agreement or any Transaction Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
9
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 shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholder requesting instruction as to the
course of action to be adopted or application of such provision, and to the
extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any written instruction of the Certificateholder 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 ten days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or
the Transaction Documents, as it shall deem to be in the best interests of
the Certificateholder, and shall have no liability to any Person for such
action or inaction.
(d) 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, at the request, order or direction of the
Certificateholder or any other Person, unless such Certificateholder or
such Person 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 (including, without limitation, the
reasonable fees and expenses of its counsel) therein or thereby, including
such advances as the Owner Trustee shall reasonably request.
SECTION 6.4. 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 Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Issuer or the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Transaction Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Commission filing (including any filings required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act)
for the Issuer or to record this Agreement or any Transaction Document. Trustee
Bank nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Estate that result from actions by, or claims against, Trustee Bank that
are not related to the ownership or the administration of the Trust Estate. The
Owner Trustee shall have no responsibility or liability for or with respect to
the genuineness, value, sufficiency or validity of the Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction
10
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Issuer set forth in Section 2.3 or
(b) that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would (i) affect the treatment of the Notes as indebtedness for federal income,
state and local income and franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or state income or franchise
tax purposes or (iii) cause the Issuer or any portion thereof to be treated as
an association or publicly traded partnership taxable as a corporation for
federal income, state and local income or franchise tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it constituting part of the
Trust Estate upon the terms of the Transaction Documents and this Agreement. The
Owner Trustee shall not be personally liable or accountable hereunder or under
any Transaction Document under any circumstances notwithstanding anything herein
or in the Transaction Documents to the contrary, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3 expressly made by Trustee
Bank in its individual capacity, (iii) for liabilities arising from the failure
of Trustee Bank to perform obligations expressly undertaken by it in the last
sentence of Section 6.4 or (iv) for taxes, fees or other charges on, based on or
measured by, any fees, commissions or compensation received by the Owner
Trustee. In particular, but not by way of limitation of the foregoing:
(i) The Owner Trustee shall not be personally liable for any
error of judgment made in good faith by any of its officers or
employees unless it is proved that such persons were negligent in
ascertaining the pertinent facts;
(ii) No provision of this Agreement shall require the Owner
Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the exercise of its rights or powers hereunder;
(iii) Under no circumstances shall the Owner Trustee be
personally liable for any representation, warranty, covenant,
obligation or indebtedness of the Issuer, and
(iv) The Owner Trustee shall not be personally responsible for or
in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by any Person other than the Owner Trustee.
11
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Transaction Documents.
SECTION 7.3. Representations and Warranties. Trustee Bank hereby represents
and warrants to the Seller for the benefit of the Certificateholder, that:
(a) It is a banking corporation duly incorporated and validly existing
in good standing under the laws of the State of Delaware and having an
office within 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) This Agreement constitutes a legal, valid and binding obligation
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors of
banks generally and to equitable limitations on the availability of
specific remedies.
(d) 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.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur
no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer,
secretary 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
Transaction
12
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, but the
Owner Trustee shall not be personally liable for the conduct or misconduct
of such agents, custodians, nominees (including persons acting under a
power of attorney) or attorneys selected with reasonable care and (ii) may
consult with counsel, accountants and other skilled persons knowledgeable
in the relevant area to be selected with reasonable care and employed by it
at the expense of the Issuer. The Owner Trustee shall not be personally
liable for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel,
accountants or other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, Trustee Bank acts solely as
the 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 Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes. The
Owner Trustee may deal with the Seller, the Indenture Trustee, the Administrator
and their respective Affiliates in banking transactions with the same rights as
it would have if it were not the Owner Trustee, and the Seller, the Indenture
Trustee, the Administrator and their respective Affiliates may maintain normal
commercial banking relationships with the Owner Trustee and its Affiliates.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. The Owner Trustee's Compensation. The Issuer shall cause the
Servicer to pay to Trustee Bank pursuant to Section 3.11 of the Sale and
Servicing Agreement from time to time compensation for all services rendered by
Trustee Bank under this Agreement pursuant to a fee letter between the Servicer
and the Owner Trustee (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust). The
Servicer, pursuant to Section 3.11 of the Sale and Servicing Agreement and the
fee letter between the Servicer and the Owner Trustee, shall reimburse Trustee
Bank upon its request for all reasonable expenses, disbursements and advances
incurred or made by Trustee Bank in accordance with any provision of this
Agreement (including the reasonable compensation, expenses and disbursements of
such agents, experts and counsel as Trustee Bank may employ in connection with
the exercise and performance of its rights and its duties hereunder), except any
such expense may be attributable to its willful misconduct, negligence (other
than an error in judgment) or bad faith. To the extent not paid by the Servicer,
such fees and reasonable expenses shall be paid in accordance with Section 4.4
of the Sale and Servicing Agreement or Section 5.4(b) of the Indenture, as
applicable.
SECTION 8.2. Indemnification. The Seller shall cause the Servicer to
indemnify Trustee Bank in its individual capacity and as trustee and its
successors, assigns, directors, officers, employees and agents (the "Indemnified
Parties") from and against, any and all loss, liability, expense, tax, penalty
or claim (including reasonable legal fees and expenses) of any
13
kind and nature whatsoever which may at any time be imposed on, incurred by, or
asserted against Trustee Bank in its individual capacity and as trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Transaction Documents, the Trust Estate, the administration of the Trust Estate
or the action or inaction of Trustee Bank hereunder; provided, however, that
neither the Seller nor the Servicer shall be liable for or required to indemnify
Trustee Bank from and against any of the foregoing expenses arising or resulting
from (i) Trustee Bank's own willful misconduct, bad faith or negligence, (ii)
the inaccuracy of any representation or warranty contained in Section 7.3
expressly made by Trustee Bank in its individual capacity, (iii) liabilities
arising from the failure Trustee Bank to perform obligations expressly
undertaken by it in the last sentence of Section 6.4 or (iv) taxes, fees or
other charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee. To the extent not paid by the Servicer, such
indemnification shall be paid in accordance with Section 4.4 of the Sale and
Servicing Agreement.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII and the Sale and Servicing Agreement shall
be deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. The Issuer shall wind up and
dissolve and this Agreement shall terminate (other than provisions hereof which
by their terms survive termination) upon the later of (a) the final distribution
by the Owner Trustee of all moneys or other property or proceeds of the Trust
Estate in accordance with the terms of the Indenture, the Sale and Servicing
Agreement and Article V and (b) the discharge of the Indenture in accordance
with Article IV of the Indenture. The bankruptcy, liquidation, dissolution,
death or incapacity of the Certificateholder shall not (x) operate to terminate
this Agreement or the Issuer, nor (y) entitle the Certificateholder'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
Issuer or Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
SECTION 9.2. Dissolution of the Issuer. Upon dissolution of the Issuer, the
Owner Trustee shall, at the direction of the Administrator, wind up the business
and affairs of the Issuer as required by Section 3808 of the Statutory Trust
Statute. Upon the satisfaction and discharge of the Indenture, and receipt of a
certificate from the Indenture Trustee stating that all Noteholders have been
paid in full and that the Indenture Trustee is aware of no claims remaining
against the Issuer in respect of the Indenture and the Notes, the Owner Trustee,
in the absence of actual knowledge of any other claim against the Issuer and at
the written direction of the Certificateholder, shall be deemed to have made
reasonable provision to pay all claims and obligations (including conditional,
contingent or unmatured obligations) for purposes of Section 3808(e) of the
Statutory Trust Statute and shall cause the Certificate of Trust to be cancelled
by filing a certificate of cancellation with the Delaware Secretary of State in
accordance with the provisions of Section 3810 of the Statutory Trust Statute,
at which time the Issuer shall terminate and this Agreement (other than Article
VIII) shall be of no further force or effect.
14
SECTION 9.3. Limitations on Termination. Except as provided in Section 9.1,
neither the Seller nor the Certificateholder shall be entitled to revoke or
terminate the Issuer.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) having a combined capital and surplus of at least $50,000,000 and
(iii) subject to supervision or examination by Federal or state authorities. If
such bank 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. The Owner Trustee shall at
all times be an institution satisfying the provisions of Section 3807(a) of the
Statutory Trust Statute. 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
10.2.
SECTION 10.2. Resignation or Removal of the 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 Seller, the Administrator, the Servicer,
the Indenture Trustee and the Certificateholder. Upon receiving such notice of
resignation, the Seller and the Administrator, acting jointly, shall promptly
appoint a successor Owner Trustee which satisfies the eligibility requirements
set forth in Section 10.1 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;
provided, however, that such right to appoint or to petition for the appointment
of any such successor shall in no event relieve the resigning Owner Trustee from
any obligations otherwise imposed on it under the Transaction Documents until
such successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Seller or 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 Seller or the Administrator may remove the
Owner Trustee. If the Seller or the Administrator shall remove the Owner Trustee
under the authority of the immediately preceding sentence, the Seller and the
Administrator, acting jointly, shall promptly appoint a successor Owner Trustee
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the successor
Owner Trustee and shall pay all fees owed to the outgoing Owner Trustee.
15
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 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Seller shall provide (or shall cause to be
provided) notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Seller, 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 the
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 Seller 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 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Seller shall mail (or shall cause to be mailed) notice of the
successor of such Owner Trustee to the Certificateholder, Indenture Trustee, the
Noteholders and each of the Rating Agencies. If the Seller shall fail to mail
(or cause to be mailed) such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Seller.
SECTION 10.4. Merger or Consolidation of the 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, 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, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 10.1; and
provided further that the Owner Trustee shall mail notice of such merger or
consolidation to the Seller, the Administrator and the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Seller and the Owner Trustee
acting jointly shall have the power and shall execute and
16
deliver all instruments to appoint one or more Persons approved by the Owner
Trustee to act as co-trustee, jointly with the Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Issuer, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Seller and the Owner Trustee may
consider necessary or desirable. If the Seller 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 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.3.
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 Issuer 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
(iii) the Seller 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
copies thereof given to the Seller and 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 become incapable of acting, resign or be removed, all of its estates,
17
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. The Owner Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any jurisdiction
in which any part of the Trust Estate may be located.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Amendments.
(a) Any term or provision of this Agreement may be amended by the
Seller and the Owner Trustee without the consent of the Indenture Trustee,
any Noteholder, the Issuer or any other Person; provided that such
amendment shall not, as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee materially and adversely affect the interests of the
Noteholders.
(b) Any term or provision of this Agreement may be amended by the
Seller and the Owner Trustee, without the consent of the Indenture Trustee,
any Noteholder, the Issuer or any other Person to add, modify or eliminate
any provisions as may be necessary or advisable in order to enable the
Seller, the Servicer or any of their Affiliates to comply with or obtain
more favorable treatment under any law or regulation or any accounting rule
or principle, it being a condition to any such amendment that the Rating
Agency Condition shall have been satisfied.
(c) This Agreement may also be amended from time to time by the Seller
and the Owner Trustee, with the consent of the Holders of Notes evidencing
not less than a majority of the aggregate principal amount of the
Outstanding Notes, voting as a single class, 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. The manner of obtaining such consents (and any other
consents of Noteholders provided for in this Agreement) and of evidencing
the authorization of the execution thereof by Noteholders will be subject
to such reasonable requirements as the Indenture Trustee may prescribe,
including the establishment of record dates pursuant to the Note Depository
Agreement.
(d) Prior to the execution of any such amendment, the Seller shall
provide written notification of the substance of such amendment to each
Rating Agency and the Owner Trustee; and promptly after the execution of
any such amendment or consent, the Seller shall furnish a copy of such
amendment or consent to each Rating Agency, the Owner Trustee and the
Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied. The
Owner Trustee may, but shall not be obligated to,
18
enter into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder. The
Certificateholder shall not have legal title to any part of the Trust Estate.
The Certificateholder shall be entitled to receive distributions with respect to
its undivided beneficial interest therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholder to and in its ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Administrator, the Certificateholder 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 Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested, if to the Owner Trustee, addressed as
specified on Schedule II to the Sale and Servicing Agreement; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
(b) Any notice required or permitted to be given to the
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of the Certificateholder as shall be designated by such party
in a written notice to each other party. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. 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 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and its successors and the Certificateholder and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the
Certificateholder shall bind the successors and assigns of the
Certificateholder.
SECTION 11.8. No Petition.
19
(a) Each of the Owner Trustee (in its individual capacity and as the
Owner Trustee), by entering into this Agreement, the Seller, the
Certificateholder, by accepting the Certificate, and the Indenture Trustee
and each Noteholder or Note Owner by accepting the benefits of this
Agreement, hereby covenants and agrees that prior to the date which is one
year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by the
Bankruptcy Remote Parties (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to such Bankruptcy Remote Party or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to
such Bankruptcy Remote Party or any substantial part of its property or to
consent to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced
against such Bankruptcy Remote Party, or to make a general assignment for
the benefit of, its creditors generally, any party hereto or any other
creditor of such Bankruptcy Remote Party, and (ii) such party shall not
commence, join or institute against, with any other Person, any proceeding
against such Bankruptcy Remote Party under any bankruptcy, reorganization,
arrangement, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
(b) The Seller's obligations under this Agreement are obligations
solely of the Seller and will not constitute a claim against the Seller to
the extent that the Seller does not have funds sufficient to make payment
of such obligations. In furtherance of and not in derogation of the
foregoing, each of the Owner Trustee (in its individual capacity and as the
Owner Trustee), by entering into or accepting this agreement, each
Certificateholder, by accepting the Certificate, and the Indenture Trustee
and each Noteholder or Note Owner, by accepting the benefits of this
Agreement, hereby acknowledges and agrees that such Person has no right,
title or interest in or to the Other Assets of the Seller. To the extent
that, notwithstanding the agreements and provisions contained in the
preceding sentence, each of the Owner Trustee, the Indenture Trustee, each
Noteholder or Note Owner and the Certificateholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, or (ii) is deemed to
have any such interest, claim to, or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then such Person further acknowledges
and agrees that any such interest, claim or benefit in or from Other Assets
is and will be expressly subordinated to the indefeasible payment in full,
which, under the terms of the relevant documents relating to the
securitization or conveyance of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to a priority of distributions or
application under applicable law, including insolvency laws, and whether or
not asserted against the Seller), including the payment of post-petition
interest on such other obligations and liabilities. This subordination
agreement will be deemed a subordination agreement within the meaning of
Section 510(a) of the Bankruptcy Code. Each of the Owner Trustee (in its
individual capacity
20
and as the Owner Trustee), by entering into or accepting this agreement,
each Certificateholder, by accepting the Certificate, and the Indenture
Trustee and each Noteholder or Note Owner, by accepting the benefits of
this Agreement, hereby further acknowledges and agrees that no adequate
remedy at law exists for a breach of this Section and the terms of this
Section may be enforced by an action for specific performance. The
provisions of this Section will be for the third party benefit of those
entitled to rely thereon and will survive the termination of this
Agreement.
SECTION 11.9. 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 11.10. 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.
SECTION 11.11. Information to Be Provided by the Owner Trustee. For as long
as the Issuer is requested to report under the Exchange Act, the Owner Trustee
shall (i) on or before the fifth Business Day of each month, provide to the
Depositor, in writing, such information regarding the Owner Trustee as is
requested for the purpose of compliance with Item 1117 of Regulation AB;
provided, however, that the Owner Trustee shall not be required to provide such
information in the event that there has been no change to the information
previously provided by the Owner Trustee to the Depositor, and (ii) as promptly
as practicable following notice to or discovery by a Responsible Officer of the
Owner Trustee of any changes to such information, provide to the Depositor, in
writing, such updated information.
[Remainder of Page Intentionally Left Blank]
21
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.
[_______________________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Trust Agreement
S-1
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
EXHIBIT A
FORM OF CERTIFICATE
NUMBER $[_________________]
R-1
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 20[__]-[_____]
CERTIFICATE
Evidencing the entire beneficial interest in all of the assets of the
Issuer (as defined below), which consist primarily of motor vehicle receivables,
including motor vehicle retail installment sales contracts and/or installment
loans that are secured by new and used automobiles and light-duty trucks.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, VW CREDIT, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD
(IN THE INITIAL ACQUISITION OR THROUGH A TRANSFER) BY OR FOR THE ACCOUNT OF OR
WITH THE ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"))
WHETHER OR NOT SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (B) A PLAN
DESCRIBED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED OR
(C) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN
EMPLOYEE BENEFIT PLAN'S OR A PLAN'S INVESTMENT IN THE ENTITY.
THIS CERTIFIES THAT [_________] is the registered owner of $[_________]
nonassessable, fully-paid and entire beneficial interest in the Trust Estate of
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 20[__]-[_____], a Delaware statutory trust
(the "Issuer") formed by Volkswagen Auto Lease Underwritten Funding, LLC, a
Delaware limited liability company, as depositor (the "Seller").
The Issuer was created pursuant to a Trust Agreement dated as of [________] (as
amended and restated as of [________], the "Trust Agreement"), between the
Seller and [________], as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below.
A-1
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Sale and Servicing Agreement, dated as
of [________], among the Seller, the Issuer, [________] as indenture trustee,
and VW Credit, Inc., as servicer, as the same may be amended or supplemented
from time to time.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which such
holder is bound. The provisions and conditions of the Trust Agreement are hereby
incorporated by reference as though set forth in their entirety herein.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture, the Sale and Servicing
Agreement and the Trust Agreement, as applicable.
THIS CERTIFICATE 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.
By accepting this Certificate, the Certificateholder hereby covenants and
agrees that prior to the date which is one year and one day after payment in
full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by the Bankruptcy Remote Parties (i) such Person shall not
authorize such Bankruptcy Remote Party to commence a voluntary winding-up or
other voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to such Bankruptcy Remote Party or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii)
such Person shall not commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
This Certificate may not be acquired by or for the account of or with the
assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
whether or not subject to the provisions of Title I of ERISA, (b) a plan
described in Section 4975 of the Code or (c) any entity whose underlying assets
include plan assets by reason of an employee benefit plan's or a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the holder hereof shall be deemed to have represented and warranted
that it is not a Benefit Plan and is not purchasing on behalf of a Benefit Plan.
A-2
It is the intention of the parties to the Trust Agreement that, solely for
income and franchise tax purposes, (i) so long as there is a single
Certificateholder, the Issuer will be disregarded as an entity separate from
such Certificateholder, and if there is more than one Certificateholder, the
Issuer will be treated as a partnership, (ii) the Seller will be disregarded as
an entity separate from VCI and (iii) the Notes will be characterized as debt.
By accepting this Certificate, the Certificateholder agrees to take no action
inconsistent with the foregoing intended tax treatment.
By accepting this Certificate, the Certificateholder acknowledges that this
Certificate represents the entire beneficial interest in the Issuer only and
does not represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any of their
respective Affiliates and no recourse may be had against such parties or their
assets, except as expressly set forth or contemplated in this Certificate, the
Trust Agreement or any other Transaction Document.
A-3
IN WITNESS WHEREOF, the Issuer has caused this Certificate to be duly
executed.
VOLKSWAGEN AUTO LOAN ENHANCED
TRUST [________________]
By: [______________________], not in its
individual capacity, but solely
as Owner Trustee
Dated:
------------------------------
By:
---------------------------------
A-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
[__________________________], not in its
individual capacity but solely
as Owner Trustee
By:
------------------------------------
Authenticating Agent
By:
------------------------------------
Authorized Signatory
A-5