DAIMLER TRUST LEASING LLC, as Transferor, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Owner Trustee AMENDED AND RESTATED TRUST AGREEMENT Dated as of October 1, 2016

 

DAIMLER TRUST LEASING LLC,

as Transferor,

 

and

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Owner Trustee

 

_______________________________

AMENDED AND RESTATED
TRUST AGREEMENT

Dated as of October 1, 2016

_______________________________

 

TABLE OF CONTENTS

 

 

ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms; Rules of Usage	1
ARTICLE TWO
ORGANIZATION
Section 2.01. Name	3
Section 2.02. Office	3
Section 2.03. Purposes and Powers	3
Section 2.04. Appointment of Owner Trustee	4
Section 2.05. Initial Capital Contribution of Owner Trust Estate	4
Section 2.06. Declaration of Trust	4
Section 2.07. Liability of Certificateholders	4
Section 2.08. Title to Owner Trust Estate	5
Section 2.09. Situs of Issuer	5
Section 2.10. Representations and Warranties of the Transferor	5
Section 2.11. Financing Statements	6
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership	7
Section 3.02. The Certificates	7
Section 3.03. Authentication and Delivery of the Certificates	8
Section 3.04. Registration, Transfer and Exchange of the Certificates	8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates	10
Section 3.06. Persons Deemed Certificateholders	11
Section 3.07. Access to List of Certificateholders’ Names and Addresses	11
Section 3.08. Maintenance of Office or Agency	11
Section 3.09. No Legal Title to Owner Trust Estate in Certificateholders	11
Section 3.10. No Recourse	11
Section 3.11. Appointment of Paying Agent	12
Section 3.12. Certificates Nonassessable and Fully Paid	12
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain Matters	13

 

Section 4.02. Action by Certificateholder with Respect to Certain Matters	13
Section 4.03. Action by Certificateholders with Respect to Bankruptcy	14
Section 4.04. Restrictions on Certificateholders’ Power	14
Section 4.05. Majority Control	14
Section 4.06. Certain Litigation Matters	14
ARTICLE FIVE
APPLICATION OF ISSUER FUNDS; CERTAIN DUTIES
Section 5.01. Application of Issuer Funds	15
Section 5.02. Method of Payment	15
Section 5.03. No Segregation of Monies; No Interest	16
Section 5.04. Accounting and Reports to Owners, IRS and Others	16
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority	17
Section 6.02. General Duties	17
Section 6.03. Action Upon Instruction	17
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions	18
Section 6.05. No Action Except Under Specified Documents or Instructions	18
Section 6.06. Restrictions	18
Section 6.07. Issuance of Notes	19
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties	20
Section 7.02. Furnishing of Documents	21
Section 7.03. Representations and Warranties	21
Section 7.04. Reliance; Advice of Counsel	22
Section 7.05. Not Acting in Individual Capacity	23
Section 7.06. Owner Trustee Not Liable for 2016-B Basic Documents or Certificates	23
Section 7.07. Owner Trustee May Own Certificates and Notes	23
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee’s Fees and Expenses	25
Section 8.02. Indemnification	25
Section 8.03. Payments to Owner Trustee	25

 

ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement	26
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee	28
Section 10.02. Resignation or Removal of Owner Trustee	28
Section 10.03. Successor Owner Trustee	29
Section 10.04. Merger or Consolidation of Owner Trustee	29
Section 10.05. Appointment of Co-Trustee or Separate Trustee	30
ARTICLE ELEVEN
REGULATION AB
Section 11.01. Intent of the Parties; Reasonableness	32
Section 11.02. Representations and Warranties	32
Section 11.03. Information to Be Provided by the Owner Trustee	32
ARTICLE TWELVE
TAX MATTERS
Section 12.01. Tax Accounting Characterization	34
Section 12.02. Signature on Returns; Tax Matters Partner	34
Section 12.03. Tax Reporting	34
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Amendments	35
Section 13.02. Limitations on Rights of Others	36
Section 13.03. Notices	36
Section 13.04. Severability	37
Section 13.05. Separate Counterparts	37
Section 13.06. Successors and Assigns	37
Section 13.07. No Petition	37
Section 13.08. Table of Contents and Headings	37
Section 13.09. GOVERNING LAW	37

 

EXHIBITS
Exhibit A – Certificate of Trust of Mercedes-Benz Auto Lease Trust 2016-B	A-1
Exhibit B – Form of Certificate	B-1

 

 

 

 

This AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1, 2016 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is between DAIMLER TRUST LEASING LLC, a Delaware limited liability company, as transferor (the “Transferor”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Owner Trustee”).

 

RECITALS

 

WHEREAS, the parties hereto entered into a Trust Agreement, dated as of September 8, 2016 (the “Original Trust Agreement”), and filed a Certificate of Trust with the Secretary of State of the State of Delaware pursuant to which the Mercedes-Benz Auto Lease Trust 2016-B was formed; and

 

WHEREAS, the parties hereto are entering into this Agreement pursuant to which, among other things, the Original Trust Agreement will be amended and restated.

 

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE ONE

DEFINITIONS

 

Section 1.01.  Capitalized Terms; Rules of Usage.  Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings ascribed thereto in Appendix 1 to the 2016-B Servicing Supplement or, if not defined therein, in Appendix A to the Basic Collateral Agency Agreement, which Appendices are hereby incorporated into and made a part of this Agreement.  Appendix 1 also contains rules as to usage applicable to this Agreement.  Whenever used herein, unless the context otherwise requires, the following words and phrases shall have the following meanings:

 

“2016-B Servicing Supplement” means the 2016-B Supplement to the Basic Servicing Agreement, dated as of October 1, 2016, among MBFS USA, Daimler Trust and Daimler Title Co.

 

“Applicants” has the meaning specified in Section 3.07.

 

“Basic Collateral Agency Agreement” means the Amended and Restated Collateral Agency Agreement, dated as of March 1, 2009, among Daimler Trust, U.S. Bank Trust National Association, Daimler Title Co. and MBFS USA.

 

“Basic Servicing Agreement” means the amended and restated servicing agreement, dated as of March 1, 2009, among MBFS USA, as servicer and as lender, Daimler Trust, as titling trust, and Daimler Title Co., as collateral agent.

 

“Certificate of Trust” means the Certificate of Trust filed for the Issuer pursuant to Section 3810(a) of the Delaware Statutory Trust Act, as originally filed with the Delaware Secretary of State on December 17, 2014.

 

“Certificate Register” has the meaning specified in Section 3.04(a).

 

“Certificate Registrar” has the meaning specified in Section 3.04(a).

 

“Expenses” has the meaning specified in Section 8.02.

 

“Indemnified Parties” has the meaning specified in Section 8.02.

 

“Original Trust Agreement” has the meaning specified in the Recitals.

 

“Owner Trust Estate” means all of the Issuer’s right, title and interest in and to the 2016-B Collateral.  Notwithstanding the foregoing, it is understood that for all purposes of the 2016-B Basic Documents, with respect to the proceeds from the sale or other disposition of a 2016-B Vehicle that are part of 2016-B Collections, the Servicer shall remit when due an amount equal to such proceeds (less related Liquidation Expenses) rather than the actual proceeds from such sale or other disposition, which actual proceeds shall be deposited into a Qualified Intermediary Account and shall not constitute part of the Owner Trust Estate; provided, that, so long as an Event of Default has occurred and is continuing, the Servicer shall remit the actual proceeds from such sale or other disposition (less related Liquidation Expenses) directly into the 2016-B Exchange Note Collection Account.

 

 

ARTICLE TWO

ORGANIZATION

 

Section 2.01.  Name.  The trust created pursuant to the Original Trust Agreement and continued hereby shall be known as “Mercedes-Benz Auto Lease Trust 2016-B”, in which name the Owner Trustee may conduct the business of the Issuer, make and execute contracts and other instruments on behalf of the Issuer and ▇▇▇ and be sued.

 

Section 2.02.  Office.  The office of the Issuer 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 Indenture Trustee, the Certificateholders and the Transferor.

 

Section 2.03.  Purposes and Powers.

 

 

 

 

 

 

 

 

 

 

 

 

Section 2.04.  Appointment of Owner Trustee.  The Transferor hereby confirms the appointment of the Owner Trustee as trustee of the Issuer effective as of the date of the Original Trust Agreement, to have all the rights, powers and duties set forth herein and under the Delaware Statutory Trust Act.

 

Section 2.05.  Initial Capital Contribution of Owner Trust Estate.  The Transferor has previously sold, assigned, transferred, conveyed and set over to the Owner Trustee, as of the date of the Original Trust Agreement, the sum of $1.  The Owner Trustee hereby acknowledges receipt in trust from the Transferor, of the foregoing contribution, which shall constitute the initial Owner Trust Estate.  The Transferor shall pay the organizational expenses of the Issuer 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.  On the 2016-B Closing Date, the Transferor will sell, transfer, assign and convey to the Issuer certain property to be included in the Owner Trust Estate pursuant to the Second-Tier Sale Agreement, and the Issuer will issue and convey the Notes to or upon the direction of the Transferor.

 

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 Certificateholders, subject to the obligations of the Issuer under the 2016-B Basic Documents.  It is the intention of the parties that (i) the Issuer constitute a statutory trust under the Delaware Statutory Trust Act and that this Agreement constitute the governing instrument of such statutory trust and (ii) solely for income and franchise tax purposes, the Issuer shall be treated as either an entity that is disregarded as separate from the beneficial owner of the equity if there is only one Certificateholder, or as a partnership (other than an association or publicly traded partnership) if there are two or more Certificateholders, with the assets of the partnership being the ownership of the 2016-B Reference Pool represented by the 2016-B Exchange Note and other assets held by the Issuer, the partners of the partnership being the Certificateholders and any holders of Notes that are required by the IRS to be treated as equity in the Issuer, and the remaining Notes constituting indebtedness of the partnership.  The parties agree that, unless otherwise required by appropriate tax authorities, the Issuer will file or cause to be filed annual or other necessary returns, reports and other forms consistent with the foregoing characterization of the Issuer for such tax purposes.  Effective as of the date hereof, the Owner Trustee shall have all the rights, powers and duties set forth herein and in the Delaware Statutory Trust Act with respect to accomplishing the purposes of the Issuer as set forth in Section 2.03.  The Owner Trustee has filed the Certificate of Trust with the Secretary of State.

 

Section 2.07.  Liability of Certificateholders.  The Certificateholders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the general corporation law of the State of Delaware.

 

Section 2.08.  Title to Owner Trust Estate.  Legal title to the Owner Trust Estate shall be vested at all times in the Issuer as a separate legal entity except where Applicable Law in any 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; provided, that concurrently with or prior to title being deemed to be vested in a co-trustee and/or separate trustee, such trustee must provide a written grant of a security interest in the Owner Trust Estate to the Indenture Trustee and must authorize the filing of financing statements to perfect the Indenture Trustee’s security interest.

 

Section 2.09.  Situs of Issuer.  The Issuer will be located and administered in the State of Delaware and the State of Michigan.  All bank accounts maintained by the Owner Trustee on behalf of the Issuer shall be located in the States of Delaware or New York.  The Issuer 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 outside of 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 the States of Delaware or New York.  The only office of the Issuer will be at the Corporate Trust Office of the Owner Trustee in the State of Delaware.

 

Section 2.10.  Representations and Warranties of the Transferor.  The Transferor hereby represents and warrants to the Owner Trustee that:

 

 

 

 

 

the enforcement of creditors’ rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.

 

 

 

Section 2.11.  Financing Statements.  The Issuer hereby authorizes the filing of financing statements in connection with the grant of a security interest to the Indenture Trustee pursuant to the granting clause of the Indenture.  In addition, the Issuer hereby ratifies any such financing statements filed prior to the date hereof.

 

ARTICLE THREE

CERTIFICATES AND TRANSFER OF INTERESTS

 

Section 3.01.  Initial Ownership.  Upon the formation of the Issuer by the contribution and conveyance by the Transferor pursuant to Section 2.05, the Transferor will be the sole beneficial owner of the Owner Trust Estate, which ownership interest is represented by the Certificates.  As Certificateholder, the Transferor (or, if the Certificate is transferred to another Person, such Person) will be entitled to receive (i) 2016-B Available Funds payable to the Certificateholder pursuant to Section 8.03 of the Indenture, (ii) any amounts payable to the Certificateholder pursuant to Section 5.04(b) of the Indenture and (iii) the remaining Owner Trust Estate following the payment in full of the Notes and of all Issuer Obligations.

 

Section 3.02.  The Certificates.

 

 

 

 

 

 

 

 

Without limiting the foregoing, one or more classes of such additional securities may, if so directed by the Transferor, be secured by all or a portion of the Trust Estate, so long as such security interest is subordinated in priority to the security interest granted to the Noteholders pursuant to the Indenture.  Subject to this Section and the terms of the other Basic Documents, the Issuer, will take (at the expense of the Transferor) all actions requested by the Transferor to facilitate the issuance and sale of any such additional securities or the grant and perfection of any security interest granted pursuant to this Section, including the authorization of the filing of any financing statements in jurisdictions deemed necessary or advisable by the Transferor to perfect such security interest.

 

Notwithstanding any exchange of the Certificates made pursuant to the terms of this Section 3.02(c), there shall at all times be at least one Certificateholder.

 

Section 3.03.  Authentication and Delivery of the Certificates.  On the Closing Date, the Owner Trustee shall cause the Certificates to be executed on behalf of the Issuer, authenticated and delivered to or upon the written order of the Transferor, signed by its president, any vice president, its treasurer, any assistant treasurer, its secretary or any assistant secretary, without further limited liability company action by the Transferor.  No Certificate shall entitle the respective Certificateholder to any benefit under this Agreement, or be valid for any purpose, unless there shall appear on such Certificate a certificate of authentication substantially in the form set forth in Exhibit B, executed by the Owner Trustee or its authenticating agent, by manual signature; and such authentication shall constitute conclusive evidence that such Certificate shall have been duly authenticated and delivered hereunder.  All Certificates shall be dated the date of their authentication.  Upon issuance, authentication and delivery pursuant to the terms hereof, the Certificates will be entitled to the benefits of this Agreement.

 

Section 3.04.  Registration, Transfer and Exchange of the Certificates.

 

 

No transfer of a Certificate shall be made to any Person unless (i) the Certificate Registrar has received an opinion of independent counsel that such action will not cause the Issuer to be treated as an association (or publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes and (ii) such transferee or assignee agrees to take positions for tax purposes consistent with the tax positions agreed to be taken by the Certificateholder. For the avoidance of doubt, any transfer of a Certificate by a Certificateholder other than the initial Certificateholder also must comply with the foregoing provision. No Certificate (other than the Certificates issued to and held by the Transferor) may be subdivided upon transfer or exchange in a manner such that the resulting Certificate represents less than a 2.00% fractional undivided interest in the Issuer (or such other amount as the Transferor may determine in order to prevent the Issuer from being treated as a “publicly traded partnership” under Section 7704 of the Code, but in no event less than a 1.00% fractional undivided interest in the Issuer).

 

 

To the extent permitted under Applicable Law (including ERISA), neither the Owner Trustee nor the Certificate Registrar shall be under any liability to any Person for any registration of transfer of any Certificate that is in fact not permitted under Applicable Law (including ERISA) or for taking any other action with respect to such Certificate under the provisions of this Agreement so long as such transfer was registered by the Owner Trustee or the Certificate Registrar in accordance with this Agreement.

 

 

promptly cancelled by it, and no Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement.  The Owner Trustee shall dispose of cancelled Certificates in accordance with its normal practice.

 

Section 3.05.  Mutilated, Destroyed, Lost or Stolen Certificates.

 

 

 

 

 

Section 3.06.  Persons Deemed Certificateholders.  Prior to due presentation of a Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar, any Paying Agent and any of their respective agents may treat the Person in whose name such Certificate is registered in the Certificate Register (as of the day of determination) as the Certificateholder of such Certificate for the purpose of receiving distributions pursuant to Section 5.01 and for all

other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar, any Paying Agent or any of their respective agents shall be bound by any notice to the contrary.

 

Section 3.07.  Access to List of Certificateholders’ Names and Addresses.  The Certificate Registrar shall furnish or cause to be furnished to the Servicer, the Transferor and the Indenture Trustee or the Owner Trustee, as the case may be, within 15 days after receipt by the Certificate Registrar of a written request therefor from the Servicer, the Transferor or either Trustee, as the case may be, a list, in such form as the requesting party may reasonably require, of the names and addresses of the Certificateholders as of the most recent Record Date.  If three or more Certificateholders, or one or more Holders of Certificates evidencing not less than 25% of the aggregate Certificate Percentage Interest (hereinafter referred to as the “Applicants”), apply in writing to the Certificate Registrar, and such application states that the Applicants desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates and such application is accompanied by a copy of the communication that such Applicants propose to transmit (which shall be deemed to be a purpose reasonably related to the Applicants’ interest in the Issuer), then the Certificate Registrar shall, within five Business Days after the receipt of such application, afford such Applicants access during normal business hours to the current list of Certificateholders.  Each Certificateholder, by receiving and holding a Certificate, shall be deemed to have agreed not to hold any of the Transferor, the Certificate Registrar or the Owner Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.

 

Section 3.08.  Maintenance of Office or Agency.  The Issuer shall maintain an office or offices or agency or agencies where notices and demands to or upon the Issuer or the Owner Trustee in respect of the 2016-B Basic Documents may be served.  The Issuer initially designates the Corporate Trust Office of the Owner Trustee for such purposes and will promptly notify the Transferor, the Administrator and the Certificateholder of any change in the location of such office.

 

Section 3.09.  No Legal Title to Owner Trust Estate in Certificateholders.  The Certificateholders shall not have legal title to any part of the Owner Trust Estate.  The Certificateholders shall be entitled to receive distributions with respect to its beneficial interest therein only in accordance with this Agreement and the Indenture.  No transfer, by operation of law or otherwise, of any right, title or interest of the Certificateholders to and in their beneficial interest in the Issuer 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 3.10.  No Recourse.  Each Certificateholder acknowledges, by accepting a Certificate, that its interests in the Issuer do not represent interests in or obligations of the Transferor, 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 may be expressly set forth in, or contemplated by, the 2016-B Basic Documents.

 

Section 3.11.  Appointment of Paying Agent.  The Paying Agent shall make distributions to Certificateholders in accordance with the Indenture and shall report the amount of such distributions to the Owner Trustee.  For so long as the Indenture Trustee is the Paying Agent, the

Paying Agent shall have the revocable power to withdraw funds from the 2016-B Exchange Note Collection Account for the purpose of making the distributions referred to above.  The Owner Trustee may revoke such power and remove the Paying Agent upon direction from the Transferor if it is determined that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect.  The Paying Agent shall initially be the Indenture Trustee, and any co-paying agent chosen by the Paying Agent that is acceptable to the Transferor.  Each Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ prior written notice to the Owner Trustee and the Transferor.  In the event that the Indenture Trustee shall no longer be the Paying Agent, the Owner Trustee, on behalf of the Issuer, upon receipt of written instruction from the Transferor, shall appoint a successor to act as Paying Agent (which shall be a bank or trust company).  The Owner Trustee shall cause such successor Paying Agent or any additional Paying Agent appointed by the Issuer to execute and deliver to the Owner Trustee, on behalf of the Issuer, an instrument in which such successor Paying Agent or additional Paying Agent shall agree that, as Paying Agent, such successor or additional Paying Agent will hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such Certificateholders.  The Paying Agent shall return all unclaimed funds to the Owner Trustee and, upon removal of a Paying Agent, such Paying Agent shall also return all funds in its possession to the Owner Trustee.  If at any time the Owner Trustee shall act as Paying Agent, the rights, privileges, protections and indemnities afforded to the Owner Trustee hereunder shall apply equally to the Owner Trustee in its role as Paying Agent.  Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.

 

Section 3.12.  Certificates Nonassessable and Fully Paid.  Certificateholders shall not be personally liable for obligations of the Issuer.  The interests represented by the Certificates shall be nonassessable for any losses or expenses of the Issuer or for any reason whatsoever, and, upon the authentication thereof by the Owner Trustee, the Certificates are and shall be deemed fully paid.

 

ARTICLE FOUR

ACTIONS BY OWNER TRUSTEE

 

Section 4.01.  Prior Notice to Certificateholders with Respect to Certain Matters.  Subject to the provisions and limitations of Section 4.04, with respect to the following matters, the Owner Trustee shall not take action unless at least 30 days before the taking of such action the Owner Trustee shall have notified the Certificateholders in writing of the proposed action and the holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest shall not have notified the Owner Trustee in writing prior to the 30^th day after such notice is given that such Certificateholders have withheld consent or provided alternative direction:

 

 

 

 

 

 

 

Section 4.02.  Action by Certificateholder with Respect to Certain Matters.  The Owner Trustee may not (i) pursuant to Article Eight of the Servicing Agreement, remove the Servicer or appoint a successor Servicer or (ii) remove the Administrator pursuant to clause (b) or (c) of Section 1.09 of the 2016-B Administration Agreement unless the Certificateholder directs the Owner Trustee to take such action (a) upon the occurrence of the termination of the Servicer pursuant to Sections 8.01 or 8.03 of the Servicing Agreement or (b) subsequent to the payment in full of the Notes and in accordance with the direction of the Certificateholders.

 

Section 4.03.  Action by Certificateholders with Respect to Bankruptcy.  The Owner Trustee shall not have the power to commence a voluntary Proceeding in bankruptcy relating to the Issuer unless all outstanding 2016-B Exchange Notes and 2016-B ABS Notes have been paid in full for not less than one year and one day (or, if longer, the applicable preference period) and each Certificateholder approves of such commencement in advance and delivers to the Owner Trustee a certificate certifying that such Certificateholder reasonably believes that the Issuer is insolvent.

 

Section 4.04.  Restrictions on Certificateholders’ Power.  The Certificateholders shall not direct the Owner Trustee to take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Issuer or the Owner Trustee under any 2016-B Basic Document or would be contrary to Section 2.03, nor shall the Owner Trustee be obligated to follow any such direction, if given.

 

Section 4.05.  Majority Control

 

.  Except as expressly provided herein, (i) any action that may be taken by the Certificateholders under this Agreement may be taken by the Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest and (ii) any written notice of the Certificateholders delivered pursuant to this Agreement shall be effective if signed by Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest at the time of the delivery of such notice.

 

Section 4.06.  Certain Litigation Matters.  The Owner Trustee shall provide prompt written notice to the Transferor, the Administrator and the Servicer of any Proceeding or investigation actually known to an Authorized Officer of the Owner Trustee in any way relating to the Issuer, the Owner Trust Estate or any 2016-B Basic Document.

 

ARTICLE FIVE

APPLICATION OF ISSUER FUNDS; CERTAIN DUTIES

 

Section 5.01.  Application of Issuer Funds.

 

 

 

 

 

Section 5.02.  Method of Payment.  Subject to Section 9.01(a), distributions required to be made to the Certificateholders on any Payment Date shall be made by the Paying Agent to the Certificateholders on such Payment Date by wire transfer, in immediately available funds, to the account of each Certificateholder of record at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall have provided to the Paying Agent appropriate written instructions at least five Business Days prior to such Payment Date, or, if not, by check mailed to such Certificateholder at the address provided by such Certificateholder.  Notwithstanding the foregoing, the final distribution in respect of any Certificate (whether on the Class A-4 Final Scheduled Payment Date or otherwise) will be payable only upon presentation and surrender of

such Certificate at the office or agency maintained for that purpose by the Certificate Registrar pursuant to Section 3.08.

 

Section 5.03.  No Segregation of Monies; No Interest.  Subject to Section 5.01, monies received by the Owner Trustee hereunder need not be segregated in any manner except to the extent required by the 2016-B Basic Documents or Applicable Law, and may be deposited under such general conditions as may be prescribed by Applicable Law and the Owner Trustee shall not be liable for any interest thereon.

 

Section 5.04.  Accounting and Reports to Owners, IRS and Others.

 

 

 

ARTICLE SIX

AUTHORITY AND DUTIES OF OWNER TRUSTEE

 

Section 6.01.  General Authority.  The Owner Trustee is authorized and directed to execute and deliver the 2016-B Basic Documents to which the Issuer is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Issuer Basic Documents and any amendment or other agreement or instrument, 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 Issuer pursuant to the 2016-B Basic Documents.  The Owner Trustee is further authorized from time to time to take such action as the Administrator or the Certificateholders recommends with respect to the 2016-B Basic Documents.

 

Section 6.02.  General Duties.  It shall be the duty of the Owner Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to the terms of this Agreement and to administer the Issuer in the interest of the Certificateholders, subject to the 2016-B 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 to the extent expressly provided for under the other 2016-B Basic Documents to the extent the Administrator has agreed in the 2016-B Administration Agreement to perform any act or to discharge any duty of the Owner Trustee hereunder or under any other 2016-B Basic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the 2016-B Administration Agreement.

 

Section 6.03.  Action Upon Instruction.

 

 

 

particular set of facts, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Certificateholders requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of holders of Certificates evidencing at least 51% of the Certificate Percentage Interest received or the Transferor, as applicable, 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 necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with the 2016-B Basic Documents as it shall deem to be in the best interests of the Certificateholders, and shall have no liability to any Person for such action or inaction.

 

 

Section 6.04.  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 6.03; and no implied duties or obligations shall be read into this Agreement or any other 2016-B 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, preparing or filing any Commission filing for the Issuer or recording any 2016-B 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 in its individual capacity that are not related to the ownership or the administration of the Owner Trust Estate.

 

Section 6.05.  No Action Except Under Specified Documents or Instructions.  The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except in accordance with (i) the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) the 2016-B Basic Documents and (iii) any document or instruction delivered to the Owner Trustee pursuant to Section 6.03.

 

Section 6.06.  Restrictions.  The Owner Trustee shall not take any action (i) that is inconsistent with the purposes of the Issuer set forth in Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would result in the Issuer becoming taxable as a corporation for federal income tax purposes.  The Certificateholders and the Transferor shall not direct the Owner Trustee to take action that would violate the provisions of this Section, or any other provision of any other 2016-B Basic Document.  Notwithstanding anything herein to the contrary, the Transferor, the Servicer and their respective Affiliates may maintain normal commercial banking relationships with the Owner Trustee and its Affiliates.

 

Section 6.07.  Issuance of Notes.  The Owner Trustee is hereby authorized and directed on behalf of the Issuer to execute, issue and deliver the Notes pursuant to the Indenture.

 

ARTICLE SEVEN

CONCERNING THE OWNER TRUSTEE

 

Section 7.01.  Acceptance of Trusts and Duties.  The Owner Trustee accepts the trusts hereby continued 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 monies actually received by it constituting part of the Owner Trust Estate upon the terms set forth in this Agreement and the other 2016-B Basic Documents.  The Owner Trustee shall not be answerable or accountable hereunder or under any other 2016-B Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee.  In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):

 

 

 

 

 

 

Agent under the Indenture, the Paying Agent under this Agreement or the Servicer under the 2016-B Servicing Agreement;

 

 

 

 

Section 7.02.  Furnishing of Documents.  The Owner Trustee shall furnish to the Certificateholders, promptly upon receipt of a written request therefor, and at the expense of the related Certificateholders, copies of (i) the 2016-B Basic Documents and (ii) all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Owner Trustee under the 2016-B Basic Documents.

 

Section 7.03.  Representations and Warranties.  The Owner Trustee hereby represents and warrants to the Transferor and the Certificateholders, that:

 

 

 

governmental rule or regulation governing the banking or trust powers of the Owner Trustee or any judgment or order binding on it, or constitute any default under its charter documents or bylaws 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 7.04.  Reliance; Advice of Counsel.

 

party or parties.  The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect.  As to any fact or matter the method of determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other Authorized Officers of the relevant party, as to such fact or matter, and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.

 

 

Section 7.05.  Not Acting in Individual Capacity.  Except as provided in this Article, in accepting the trusts hereby created Wilmington Trust 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 any 2016-B Basic Document shall look only to the Owner Trust Estate for payment or satisfaction thereof.

 

Section 7.06.  Owner Trustee Not Liable for 2016-B Basic Documents or Certificates.  The recitals contained herein 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 any 2016-B Basic Document or the Securities (in each case other than the signature on the Securities and the certificate of authentication of the Owner Trustee on the Certificates and the representations and warranties in Section 7.03).  The Owner Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity or enforceability of any 2016-B Basic Document to which the Owner Trustee is to be a party (except for enforceability against the Owner Trustee), or the perfection and priority of any security interest created by or under any 2016-B Basic Document, 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 Certificateholders under this Agreement or the Noteholders under the Indenture, the validity of the transfer of the 2016-B Exchange Note or for the compliance by the Transferor, the Administrator or the Servicer with any warranty or representation made under any 2016-B Basic Document or for the accuracy of any such warranty or representation or for any action of the Administrator, the Servicer or the Indenture Trustee taken in the name of the Owner Trustee.

 

Section 7.07.  Owner Trustee May Own Certificates and Notes.  The Owner Trustee in its individual or any other capacity may become a Securityholder or pledgee of Certificates or 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 EIGHT

COMPENSATION OF OWNER TRUSTEE

 

Section 8.01.  Owner Trustee’s Fees and Expenses.  The Owner Trustee shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof among the Administrator, the Transferor, the Issuer and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed, except as otherwise provided in the 2016-B Basic Documents, 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.

 

When the Owner Trustee incurs expenses after the occurrence of an Event of Default set forth under Section 5.01(e) of the Indenture with respect to the Issuer, such expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable Insolvency Law.

 

Section 8.02.  Indemnification.  The Transferor shall be liable as primary obligor for, and shall indemnify the Owner Trustee and its officers, directors, successors, assigns, agents and servants (collectively, for purposes of this Section, 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, including legal fees and expenses in connection with enforcement of its rights hereunder) of any kind and nature whatsoever (collectively, for purposes of this Section, “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 the 2016-B 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 an Indemnified Party from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.01.  To the extent not paid, or caused to be paid, by the Transferor or the Administrator, any indemnity due and owing the Owner Trustee shall be paid in accordance with Section 5.04 and 8.03 of the Indenture.  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 8.03.  Payments to Owner Trustee.  Any amounts paid to the Owner Trustee pursuant to this Article from assets that are part of the Owner Trust Estate shall be deemed not to be a part of the Owner Trust Estate immediately after such payment.

 

ARTICLE NINE

TERMINATION OF TRUST AGREEMENT

 

Section 9.01.  Termination of Trust Agreement.

 

 

 

Subject to applicable escheat laws, any funds remaining in the Issuer after exhaustion of such remedies shall be distributed by the Owner Trustee to the Servicer.

 

 

ARTICLE TEN

SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

 

Section 10.01.  Eligibility Requirements for Owner Trustee.  The Owner Trustee shall at all times be (i) a corporation or association organized under the laws of the United States or any State and satisfying the provisions of Section 3807(a) of the Delaware Statutory Trust Act, (ii) authorized to exercise corporate trust powers; having (or having a parent that has) a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or State authorities and (iii) having (or having a parent that has) time deposits that are rated investment grade by Standard & Poor’s and ▇▇▇▇▇’▇ or, are otherwise acceptable to the Rating Agencies.  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.  If 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 10.02.

 

Section 10.02.  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 and the Transferor, and will provide to the Transferor in writing and in form and substance reasonably satisfactory to the Transferor, all information reasonably requested by the Transferor in order to comply with its reporting obligation under the Exchange Act with respect to the resignation of the Owner Trustee.  Upon receiving such notice of resignation, the Administrator shall promptly appoint a successor Owner Trustee acceptable to the Transferor 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.  Neither the Administrator nor the Transferor shall owe the outgoing Owner Trustee any expenses associated with the resignation of the outgoing Owner Trustee and the outgoing Owner Trustee shall not be responsible for any expenses associated with the appointment of a successor Owner Trustee.

 

If at any time the Owner Trustee shall (i) cease to be eligible in accordance with the provisions of Section 10.01 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, (ii) 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, (iii) fail to comply with any of its obligations under Sections 11.01 or 11.03, during the period that the Transferor is required to file Exchange Act Reports with respect to the Issuer and such failure is not remedied within the lesser of ten calendar days and the period of time in which the related Exchange Act Report is required to be filed (without taking into account any extensions) or (iv) otherwise become incapable of acting, then the Administrator or the Transferor 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 acceptable to the Transferor by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing Owner Trustee.

 

Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee.  So long as any Notes are Outstanding, the Administrator shall provide notice of such resignation or removal of the Owner Trustee to the Noteholders and each Rating Agency.  Any costs associated with the removal of the Owner Trustee shall be paid by the Administrator.

 

Section 10.03.  Successor Owner Trustee.  Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement and deliver to the Transferor in writing and in form and substance reasonably satisfactory to the Transferor, all information reasonably requested by the Transferor in order to comply with its reporting obligations under the Exchange Act with respect to the successor Owner Trustee, and thereupon, subject to the payment of all fees and expenses owed to the predecessor Owner Trustee, 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 10.01.  Any successor Owner Trustee shall promptly file an amendment to the Certificate of Trust as required by the Delaware Statutory Trust Act.

 

Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Administrator shall mail notice thereof to the Rating Agencies, the Certificateholders and the Indenture Trustee.  If the Administrator shall fail to mail such notice within 10 days after acceptance of such appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Administrator.

 

Section 10.04.  Merger or Consolidation of Owner Trustee.

 

the Owner Trustee hereunder, without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, that such Person shall be eligible pursuant to Section 10.01; and, provided, further, that, so long as any Notes are Outstanding, the Owner Trustee shall mail notice of such merger or consolidation to the Transferor and the Administrator, and the Administrator shall provide a copy of such notice to the Rating Agencies.  Any successor Owner Trustee as a result of a merger or consolidation shall promptly file an amendment to the Certificate of Trust as required by the Delaware Statutory Trust Act and provide the Transferor in writing and in form and substance reasonably satisfactory to the Transferor, all information reasonably requested by the Transferor in order to comply with its reporting obligations under the Exchange Act with respect to the successor Owner Trustee.

 

 

Section 10.05.  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 2016-B Vehicle may at the time be located, the Administrator and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Administrator and Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or as separate trustee or separate trustees, of all or any part of the Owner 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 Administrator and the Owner Trustee may consider necessary or desirable.  If the  Administrator shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment.  No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.03.

 

Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:

 

unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Owner Trust Estate 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;

 

 

 

Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them.  Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article.  Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee.  Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrator.

 

Any separate trustee or co-trustee may at any time appoint the Owner Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.  If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor co-trustee or separate trustee.

 

ARTICLE ELEVEN

REGULATION AB

 

Section 11.01.  Intent of the Parties; Reasonableness.  The parties hereto acknowledge and agree that the purpose of this Article is to facilitate compliance by the Transferor with the provisions of Regulation AB and related rules and regulations of the Commission.  The Transferor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith, or for purposes other than the Transferor’s compliance with the Securities Act, the Exchange Act and the rules and regulations of the Commission thereunder (or the provision in a private offering of disclosure comparable to that required under the Securities Act).  The Owner Trustee agrees to cooperate in good faith with any reasonable request by the Transferor for information regarding the Owner Trustee which is required in order to enable the Transferor to comply with the provisions of Regulation AB, including Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB as such items relate to the Owner Trustee or to the Owner Trustee’s obligations under this Agreement.

 

Section 11.02.  Representations and Warranties.  The Owner Trustee represents that:

 

 

 

 

Section 11.03.  Information to Be Provided by the Owner Trustee.

 

 

 

 

 

 

In addition, the Owner Trustee shall provide a description of whether there is, and if so the general character of, any business relationship, agreement, arrangement, transaction or understanding between the Owner Trustee and any above-listed party that is entered into outside the ordinary course of business or is on terms other than would be obtained in an arm’s-length transaction with an unrelated third party, apart from the Securitization Transactions, that currently exists or that existed during the past two years and that is material to an investor’s understanding of the Notes.

 

The Transferor agrees to notify the Owner Trustee in writing if it is no longer required to report under Regulation AB.

 

ARTICLE TWELVE

TAX MATTERS

 

Section 12.01.  Tax Accounting Characterization.

 

 

 

 

Section 12.02.  Signature on Returns; Tax Matters Partner.

 

 

 

Section 12.03.  Tax Reporting.

 

 

 

ARTICLE THIRTEEN

MISCELLANEOUS

 

Section 13.01.  Amendments.

 

 

 

 

Certificateholder and the Transferor shall furnish written notice of the substance of such amendment or consent to the Indenture Trustee and the Rating Agencies.

 

 

 

Section 13.02.  Limitations on Rights of Others.  The provisions of this Agreement are solely for the benefit of the Owner Trustee, the Transferor, the Certificateholders, the Administrator and, to the extent expressly provided herein, the Indenture Trustee, 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 13.03.  Notices.  Unless otherwise expressly specified or permitted by the terms hereof, all notices, requests, demands, consents, waivers or other communications to or from the parties to this Agreement will be in writing.  Notices, requests, demands, consents and other communications will be deemed to have been given and made, (i) upon delivery or, in the case of a letter mailed via registered first class mail, postage prepaid, three days after deposit in the mail and (ii) in the case of (a) a facsimile, when receipt is confirmed by telephone or by reply e-mail or reply facsimile from the recipient, (b) an e-mail, when receipt is confirmed by telephone or by reply e‑mail from the recipient and (c) an electronic posting to a password-protected website, upon printed confirmation of the recipient’s access to such password-protected website, or when notification of such electronic posting is confirmed in accordance with clauses (ii)(b) and (ii)(c) above.  Unless otherwise specified in this Agreement, any such notice, request, demand, consent or other communication will be delivered or addressed, in the case of (i) if to the Owner Trustee, addressed to the Corporate Trust Office, with a copy to Wilmington Trust, National Association, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:  Corporate Trust Administration (e-mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, facsimile:  (302) 636‑4140); (ii) if to the Transferor, addressed to Daimler Trust Leasing LLC, c/o Mercedes-Benz Financial Services USA LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:  ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (e‑mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, facsimile: (248) 981‑6962); (iii) Moody’s, at ▇▇▇▇▇’▇ Investors Service, Inc., ABS Monitoring

Department, 7 World Trade Center, 25th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (e-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇); (iv) if to Standard & Poor’s, at S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇  ▇▇▇▇▇, Attention: Asset Backed Surveillance Department (e‑mail: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇); or (v) as to each party, at such other address as shall be designated by such party in a written notice to each other party.

 

Section 13.04.  Severability.  If any one or more of the covenants, agreements, provisions or terms of this Agreement or the Certificates shall be for any reason whatsoever held invalid, illegal or unenforceable, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions and terms of this Agreement and the Certificates, and such invalidity shall in no way affect the validity or enforceability of the other covenants, agreements, provisions and terms of this Agreement or the Certificates or the rights of the Certificateholders.

 

Section 13.05.  Separate Counterparts.  This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.

 

Section 13.06.  Successors and Assigns.  All covenants and agreements contained herein and in the Certificates shall be binding upon, and inure to the benefit of the Transferor and its permitted assignees, the Owner Trustee and its successors and the Certificateholders and their respective successors and permitted assigns, all as herein provided.  Any request, notice, direction, consent, waiver or other instrument or action by a Certificateholder shall bind its successors and assigns.

 

Section 13.07.  No Petition.  The Owner Trustee and the Transferor, by entering into this Agreement, each Certificateholder, by accepting a Certificate, the Indenture Trustee and each Noteholder or beneficial owner of Notes, by accepting the benefits of this Agreement, hereby covenant and agree that, prior to the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of the 2016-B Exchange Notes, the 2016-B ABS Notes or all amounts due to each Holder in respect of a Specified Interest, they will not institute against, or join any other Person, in instituting against, the Issuer, the Titling Trust, the Initial Beneficiary or the Transferor any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or other Proceeding under any Insolvency Law in connection with any obligations relating to the 2016-B Exchange Note, the Notes, this Agreement or any other 2016-B Basic Document and agrees that it will not cooperate with or encourage others to file a bankruptcy petition against the Transferor or the Issuer during the same period.

 

Section 13.08.  Table of Contents and Headings.  The Table of Contents and the various headings in this Agreement are included for convenience only and will not affect the meaning or interpretation of any provision of this Agreement.

 

Section 13.09.  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.

 

IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Trust Agreement to be duly executed by their respective officers, thereunto duly authorized, as of the day and year first above written.

 

	DAIMLER TRUST LEASING LLC, as Transferor
	By:	/s/
		Name:
		Title:

 

	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Owner Trustee
	By:	/s/
		Name:
		Title:

 

 

Amended and Restated Trust Agreement

EXHIBIT A

 

CERTIFICATE OF TRUST
OF
MERCEDES-BENZ AUTO LEASE TRUST 2016-B

 

This Certificate of Trust of Mercedes-Benz Auto Lease Trust 2016-B (the “Trust”) is being duly executed and filed by Wilmington Trust, National Association, a national banking association, as trustee (the “Owner Trustee”), to form a statutory trust under the Delaware Statutory Trust Act (12 Del.C. Section 3801 et seq.) (the “Act”).

 

 

 

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in accordance with Section 3811(a) of the Act.

 

	WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee
	By:	/s/
		Name:
		Title:

 

 

 

 

EXHIBIT B

 

FORM OF CERTIFICATE

 

THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE EXTENT DESCRIBED IN THE TRUST AGREEMENT AND THE OTHER 2016-B BASIC DOCUMENTS REFERRED TO HEREIN.

 

THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION OF DAIMLER TRUST LEASING LLC, MERCEDES-BENZ FINANCIAL SERVICES USA LLC OR ANY OF THEIR RESPECTIVE AFFILIATES.

 

THIS CERTIFICATE MAY NOT BE PURCHASED BY A PERSON THAT IS OR IS ACTING ON BEHALF OF, OR USING THE ASSETS OF ANY OF (1) AN “EMPLOYEE BENEFIT PLAN”, AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), THAT IS SUBJECT TO TITLE I OF ERISA, (2) A “PLAN”, AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), THAT IS SUBJECT TO SECTION 4975 OF THE CODE, (3) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT OF LABOR REGULATION 29 C.F.R. SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA), OR (4) A GOVERNMENTAL, CHURCH, NON-U.S. OR OTHER PLAN, THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL, OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”).  BY ACCEPTANCE OF THIS CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTIONS.

 

TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE TRUST AGREEMENT.

 

REGISTERED

NO. R-1

 

MERCEDES-BENZ AUTO LEASE TRUST 2016-B
ASSET BACKED CERTIFICATE

 

Evidencing an undivided beneficial interest in the property of Mercedes-Benz Auto Lease Trust 2016-B, a Delaware statutory trust (the “Issuer”), which property includes the 2016-B Exchange Note, the 2016-B Bank Accounts and certain other rights under the Trust Agreement and Second Tier Sale Agreement.  The property of the Issuer has been pledged by the Issuer to U.S. Bank National Association, a national banking association, as indenture trustee (the “Indenture Trustee”), pursuant to an indenture, dated as of October 1, 2016 (as amended,

restated, supplemented or otherwise modified from time to time, the “Indenture”), between the Issuer and the Indenture Trustee, to secure the payment of the Notes issued thereunder.

 

This certifies that DAIMLER TRUST LEASING LLC is the registered owner of a 100% Certificate Percentage Interest nonassessable, fully paid, undivided beneficial interest in the Issuer.  The Issuer is governed by an amended and restated trust agreement dated as of October 1, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Trust Agreement”), between Daimler Trust Leasing LLC, as transferor (in such capacity, the “Transferor”), and Wilmington Trust, National Association, as owner trustee (in such capacity, and not in its individual capacity, the “Owner Trustee”), a summary of certain of the pertinent provisions of which is set forth below.  Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix 1 to the 2016-B Servicing Supplement, dated as of October 1, 2016, among Mercedes-Benz Financial Services USA LLC (“MBFS USA”), as servicer and as lender, Daimler Trust, as titling trust, and Daimler Title Co., as collateral agent or, if not defined therein, in Appendix A to the Amended and Restated Collateral Agency Agreement, dated as of March 1, 2009, among Daimler Trust, as borrower, U.S. Bank Trust National Association, as administrative agent, Daimler Title Co., as collateral agent, and MBFS USA, as lender and as servicer.

 

This Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the registered holder of this Certificate (the “Certificateholder”) by virtue of the acceptance hereof assents and by which such Certificateholder is bound.

 

Pursuant to the Trust Agreement, there will be distributed on each Payment Date to the Person in whose name this Certificate is registered at the close of business on the Business Day preceding such Payment Date such Certificateholder’s Certificate Percentage Interest in the amount to be distributed to Certificateholders on such Payment Date.  “Payment Date” means the 15^th day of each month or, if such 15^th day is not a Business Day, the following Business Day, commencing on November 15, 2016.

 

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 TRUST AGREEMENT AND THE INDENTURE.

 

It is the intent of the Transferor, the Owner Trustee, the Administrator, the Servicer and the Certificateholders that, for purposes of federal income taxes, State and local income taxes and any other income taxes, the Issuer will be treated as either an entity that is disregarded as separate from the beneficial owner of the equity in the Issuer if there is only one such owner, or as a partnership (other than an association or publicly traded partnership) if there are two or more such owners.  The Transferor and any other Certificateholders, by acceptance of a Certificate, agree with the foregoing characterization of the Certificates for such tax purposes and further agree to take no action inconsistent therewith.

 

Each Certificateholder, by its acceptance of a Certificate or a beneficial interest therein, covenants and agrees that, prior to the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of the 2016-B Exchange Notes, the 2016-B ABS Notes or all amounts due to each Holder in respect of a Specified Interest, they will not institute against, or join any other Person, in instituting against, the Issuer, the Titling Trust, the Initial Beneficiary or the Transferor any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or other Proceeding under any Insolvency Law in connection with any obligations relating to the 2016-B Exchange Note, the 2016-B ABS Notes, this Agreement or any other 2016-B Basic Document.

 

Distributions on this Certificate will be made as provided in the Trust Agreement by the Paying Agent by wire transfer or check mailed to the Certificateholder of record in the Certificate Register without the presentation or surrender of this Certificate or the making of any notation hereon.  Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Owner Trustee of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency of the Owner Trustee maintained for that purpose in Wilmington, Delaware.

 

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 fully set forth on the face of this Certificate.

 

Unless the certificate of authentication hereon has 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 Indenture or be valid for any purpose.

 

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.

 

IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in its individual capacity, has caused this Certificate to be duly executed as of the date set forth below.

 

Dated:  October __, 2016	MERCEDES-BENZ AUTO LEASE TRUST 2016-B,
	By:	WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee
	By:	/s/
		Name:
		Title:

                                                             

 

OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Certificates referred to in the within-mentioned Trust Agreement.

 

 

 

[REVERSE OF CERTIFICATE]

 

This Certificate does not represent an obligation of, or an interest in, the Transferor, the Servicer, the Administrator, the Owner Trustee or any of their respective Affiliates, and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated herein, in the Trust Agreement or in the other 2016-B Basic Documents.  In addition, this Certificate is not guaranteed by any Governmental Authority and is limited in right of payment to certain collections with respect to the 2016-B Exchange Note (and certain other amounts), all as more specifically set forth herein and in the Indenture and the Exchange Note Supplement.

 

The Trust Agreement permits the Transferor and the Owner Trustee, on behalf of the Issuer, with certain exceptions therein provided, to amend from time to time certain terms and conditions set forth in the Trust Agreement without the consent of the Certificateholders.  The Trust Agreement also permits the Transferor and the Owner Trustee, on behalf of the Issuer, with certain exceptions as therein provided, to amend certain terms and conditions set forth in the Trust Agreement with the consent of the Majority Noteholders of the Controlling Class or, if the Notes are no longer Outstanding, the Holders of Certificates evidencing not less than 51% of the aggregate Certificate Percentage Interest.  Any such consent by the Certificateholder shall be conclusive and binding on such Certificateholder and on all future Certificateholders and of any Certificate issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent is made upon this Certificate.

 

As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Certificate may be registered in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office and a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Certificateholder or such Certificateholder’s attorney duly authorized in writing, and thereupon one or more new Certificates in any authorized denomination and in the same aggregate Certificate Percentage Interest in the Issuer will be issued to the designated transferee or transferees.  No service charge shall be made for any registration of transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection therewith.  The initial Certificate Registrar appointed under the Trust Agreement is the Owner Trustee.

 

Each Certificateholder, by its acceptance of a Certificate, shall be deemed to have represented and warranted that such Certificateholder is not and is not acting on behalf of, or using the assets of a Benefit Plan.

 

The Certificates are issuable only in registered form in denominations as provided in the Trust Agreement, subject to certain limitations therein set forth.

 

The Owner Trustee, the Certificate Registrar and any Paying Agent may treat the Person in whose name this Certificate is registered in the Certificate Register (as of the day of determination) as the owner of this Certificate for the purpose of receiving distributions pursuant to the Trust Agreement and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or any Paying Agent shall be bound by any notice to the contrary.

 

The Trust Agreement, with certain exceptions therein provided, shall terminate in accordance with Article Nine of the Trust Agreement.

 

ASSIGNMENT

 

SOCIAL SECURITY NUMBER
OR OTHER IDENTIFICATION
NUMBER OF ASSIGNEE:  ________________

 

 

 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
                                                                                                                                                                                        

---

(name and address of assignee)

the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints ________________________, attorney, to transfer said Certificate on the Certificate Register, with full power of substitution in the premises.

 

Dated:
	________________________________________*/
	Signature Guaranteed:
	________________________________________*/

 

 

*/

NOTICE:  The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without alteration, enlargement or any change whatsoever.  Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Certificate Registrar.

 

 

 

B-7

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