Asset Backed Notes MERCEDES-BENZ AUTO LEASE TRUST 201_-[__], as Issuer, and [_______________], as Indenture Trustee

$_____________________
Asset Backed Notes

 

MERCEDES-BENZ AUTO LEASE TRUST 201_-[__],
as Issuer,

 

and

 

[_______________],
as Indenture Trustee

 

---

CROSS REFERENCE TABLE^*

 

*	This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture.

 

**	N.A. means Not Applicable.

TABLE OF CONTENTS

 

 

 

 

 

 

EXHIBITS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This INDENTURE, dated as of [_______________], is between MERCEDES-BENZ AUTO LEASE TRUST 201_-[__], a Delaware statutory trust (the “Issuer”), and [_______________], a national banking association, as trustee and not in its individual capacity (the “Indenture Trustee”).

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Issuer’s [_____%][floating rate] Class A-1 Asset Backed Notes (the “Class A-1 Notes”), [_____%][floating rate]  Class A-2A Asset Backed Notes (the “Class A-2A Notes”),[ LIBOR + [___]]% Class A-2B Asset Backed Notes (the “Class A-2B Notes”), [_____%][floating rate]  Class A-3 Asset Backed Notes (the “Class A-3 Notes”), [_____%][floating rate]  Class A-4 Asset Backed Notes (the “Class A-4 Notes”) and [_____%][floating rate] Class B Asset Backed Notes (the “Class B Notes” and, together with the Class A-1 Notes, the Class A-2A Notes, the Class A-2B Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, the “Notes”):

 

GRANTING CLAUSE

 

The Issuer hereby Grants to the Indenture Trustee on the 201_-[__] Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, without recourse, all of the Issuer’s right, title and interest in and to (i) all rights (but none of the obligations) of the Issuer as holder of the 201_-[__] Exchange Note, including the right of the Issuer to receive payments with respect to the 201_-[__] Exchange Note, (ii) all rights of the Issuer in the 201_-[__] Bank Accounts, all funds on deposit in the 201_-[__] Bank Accounts and all investments and proceeds, including all investment earnings (net of losses and investment expenses), from amounts on deposit in the 201_-[__] Bank Accounts, (iii) all rights of the Issuer under the 201_-[__] Basic Documents, including its rights as assignee of the Transferor under the First-Tier Sale Agreement, (iv) the rights of the Issuer as third-party beneficiary of the Basic Servicing Agreement, the 201_-[__] Servicing Supplement and the 201_-[__] Exchange Note Supplement and (v) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing (collectively, the “201_-[__] Collateral”).

 

The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, except as otherwise provided in this Indenture and the other 201_-[__] Basic Documents, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture.

 

The Indenture Trustee, as trustee on behalf of the 201_-[__] Secured Parties, acknowledges such Grant and the Grant by the Titling Trust under the Titling Trust Control Agreement of a security interest in the 201_-[__] Exchange Note Collection Account, accepts the

trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture in accordance with the terms hereof.

 

Notwithstanding any statement to the contrary contained herein or in any other 201_-[__] Basic Document, neither the Indenture Trustee, any Holder nor other Person shall have a security interest in any funds held in connection with the Tax Owner’s Master Exchange Program in an account that is not one of the 201_-[__] Bank Accounts established pursuant to the 201_-[__] Servicing Supplement for the exclusive benefit of the Noteholders, including any funds that represent the net proceeds from the sale or other disposition of a 201_-[__] Vehicle, and no funds in any such other accounts shall be included in the Trust Estate; provided, that, so long as an Event of Default has occurred and is continuing, the Servicer shall remit actual net proceeds from the sale or other disposition of a 201_-[__] Vehicle directly into the 201_-[__] Exchange Note Collection Account.  It is the intention of the parties hereto that the preceding sentence shall satisfy the requirements of Section 1.1031(k)-1(g)(4) of the Treasury Regulations with respect to prohibiting the Tax Owner from having the right to receive, pledge, borrow or otherwise obtain the benefits of money or other property held in such other accounts.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE ONE

DEFINITIONS

 

Section 1.01.  Capitalized Terms; Rules of Usage.  Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix 1 to the 201_-[__] 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 Indenture.  Except as otherwise specified herein or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Indenture.  In the event of any conflict between a definition appearing below and any other 201_-[__] Basic Document, the definition appearing below shall control for purposes of this Indenture.

 

“201_-[__] Servicing Supplement” means the 201_-[__] Servicing Supplement, dated as of [______], 201_], to the Basic Servicing Agreement, among MBFS USA, as servicer and lender, Daimler Trust, as titling trust, and Daimler Title Co., as collateral agent.

 

“Act” has the meaning specified in Section 11.03(a).

 

“Authenticating Agent” means any Person authorized by the Indenture Trustee to act on behalf of the Indenture Trustee to authenticate and deliver the Notes.

 

“Authorized Newspaper” means a newspaper of general circulation in The City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays and holidays.

 

“Basic Collateral Agency Agreement” means the Amended and Restated Basic Collateral Agency Agreement, dated as of March 1, 2009, among Daimler Trust, the Administrative Agent, Daimler Title Co., as collateral agent, and MBFS USA, as lender and as servicer.

 

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

 

“Executive Officer” means, with respect to any (i) corporation, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, Executive Vice President, any Vice President, the Secretary or the Treasurer of such corporation and (ii) partnership, any general partner ▇▇▇▇▇▇▇.

 

“FATCA” means Sections 1471 through 1474 of the Code (or any amended or successor version) and any current or future regulations or official interpretations thereof.

 

“FATCA Withholding Tax” means any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to FATCA.

 

“Holder” or “Noteholder” means the Person in whose name a Note is registered on the Note Register.

 

“Noteholder FATCA Information” means, with respect to any Noteholder or holder of an interest in a Note, information sufficient to eliminate the imposition of, or determine the amount of, U.S. withholding tax under FATCA.

 

“Predecessor Note” means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.06 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.

 

“PTCE” means Prohibited Transaction Class Exemption.

 

“Trust Estate” means all of the Issuer’s right, title and interest in and to the 201_-[__] Collateral.  Notwithstanding the foregoing, it is understood that for all purposes of this Indenture and the other 201_-[__] Basic Documents, with respect to the proceeds from the sale or other disposition of a 201_-[__] Vehicle that are part of 201_-[__] 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 Trust Estate; provided, that, so long as an Event of Default has occurred and is continuing, the Servicer shall remit the actual proceeds (less related Liquidation Expenses) from such sale or other disposition directly into the 201_-[__] Exchange Note Collection Account.

 

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939.

 

Section 1.02.  Incorporation by Reference of Trust Indenture Act

 

.  Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by reference in and made a part of this Indenture.  The following TIA terms used in this Indenture have the following meanings:

 

“indenture securities” means the Notes.

 

“indenture security holder” means a Noteholder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Indenture Trustee.

 

“obligor” on the indenture securities means the Issuer and any other obligor on the indenture securities.

 

All other TIA terms used in this Indenture that are defined in the TIA, defined by TIA reference to another statute or defined by Commission rule have the meaning assigned to them by such definitions.

 

 

ARTICLE TWO

THE NOTES

 

Section 2.01.  Form.  The Notes, together with the Indenture Trustee’s certificate of authentication, shall be substantially in the form set forth in Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the Authorized Officer of the Issuer executing such Notes, as evidenced by his or her execution of the Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.

 

The Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.

 

Each Note shall be dated the date of its authentication.  The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture.

 

Section 2.02.  Execution, Authentication and Delivery.  The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.

 

Notes bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.

 

The Indenture Trustee shall upon Issuer Order authenticate and deliver Notes for original issue the Notes in the following aggregate principal amounts: (i) $__________ of Class A-1 Notes, (ii) $__________ of Class A-2A Notes, (iii) $__________ of Class A-2B Notes, (iv) $__________ of Class A-3 Notes , (v) $__________ of Class A-4 Notes and (vi) $__________ of Class B Notes. The aggregate principal amount of Class A-1 Notes, Class A-2A Notes, Class A-2B Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes outstanding at any time may not exceed such respective amounts except as provided in Section 2.06.

 

Each Note shall be dated the date of its authentication.  The Notes shall be issuable as registered notes in book-entry form in minimum denominations of $1,000 and in integral multiples of $1,000 in excess thereof; provided, however, that on the 201_-[__] Closing Date, one Class A-1 Note, one Class A-2A Note, one Class A-2B Note, one Class A-3 Note, one Class A-4 Note and one Class B Note may be issued in a denomination that includes any remaining portion of the Initial Class A-1 Note Balance, the Initial Class A-2A Note Balance, the Initial Class A-2B Note Balance, the Initial A-3 Note Balance, the Initial Class A-4 Note Balance and the Initial Class B Note Balance, respectively.

 

No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the

form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

Section 2.03.  Temporary Notes.  Pending the preparation of Definitive Notes pursuant to Section 2.12, the Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.

 

If temporary Notes are issued, the Issuer shall cause Definitive Notes to be prepared without unreasonable delay.  After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.02, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver in exchange therefor, a like tenor and principal amount of Definitive Notes of authorized denominations of the same aggregate outstanding principal amount.  Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.

 

Section 2.04.  Tax Treatment.  The Issuer has entered into this Indenture, and the Notes will be issued, with the intention that, for all purposes, including federal, State and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer secured by the Trust Estate.  The Issuer, by entering into this Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner, by its acceptance of an interest in the applicable Book-Entry Note), agree (i) to treat the Notes for all purposes, including federal, State and local income, single business and franchise tax purposes, as indebtedness and (ii) not to take any action inconsistent with the agreement in clause (i) above, including claiming a Note represents ownership of any 201_-[__] Vehicles or the right to take deductions for depreciation or otherwise.

 

Section 2.05.  Registration; Registration of Transfer and Exchange.

 

 

If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to

obtain copies thereof, and the Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Holders of Notes and the principal amounts and number of such Notes.

 

 

 

Every Note presented or surrendered for registration of transfer or exchange shall (if so required by the Issuer or the Indenture Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form and substance satisfactory to the Issuer and the Indenture Trustee, duly executed by the Noteholder thereof or its attorney-in-fact duly authorized in writing.

 

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

 

No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith, other than exchanges pursuant to Sections 2.03 or 9.06 not involving any transfer.

 

 

 

applicable, or the Code; except that if a certificate is specifically required by the terms of this Section to be provided to the Indenture Trustee by a prospective transferor or transferee, the Indenture Trustee shall be under a duty to receive and examine the same to determine whether it conforms substantially on its face to the applicable requirements of this Section.

 

 

Section 2.06.  Mutilated, Destroyed, Lost or Stolen Notes.  If (i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a Protected Purchaser, and provided that the requirements of Sections 8-405 and 8-406 of the UCC are met, the Issuer shall execute, and upon receipt of an Issuer Request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of like tenor and principal amount; provided, however, that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become or within seven days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender thereof.  If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a Protected Purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom such replacement Note was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a Protected Purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.

 

Upon the issuance of any replacement Note under this Section, the Issuer may require the payment by the Holder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee) connected therewith.

 

Every replacement Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

Section 2.07.  Persons Deemed Owner.  Prior to due presentment for registration of transfer of any Note, the Issuer and any agent of the Issuer or the Indenture Trustee will treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.

 

Section 2.08.  Payment of Principal and Interest.

 

 

 

 

Section 2.09.  Cancellation.  All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee.  The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture.  All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that they be destroyed or returned to it; provided, that such Issuer Order is timely and the Notes have not been previously disposed of by the Indenture Trustee.

 

Section 2.10.  Book-Entry Notes.  Except as provided in Section 2.12, the Notes, upon original issuance, will be issued in the form of a typewritten Note or Notes representing the Book-Entry Notes, to be delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Issuer.  The Book-Entry Notes shall be registered initially on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner will receive a Definitive Note representing such Note Owner’s interest in such Book Entry Note, except as provided in Section 2.12.  Unless and until Definitive Notes have been issued to Note Owners pursuant to Section 2.12:

 

 

 

 

 

beneficial interest in the Notes or such Class of Notes and has delivered such instructions to the Indenture Trustee.

 

Section 2.11.  Notices to Clearing Agency.  Whenever a notice or other communication to Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.12, the Indenture Trustee shall give all such notices and communications specified herein to be given to Noteholders to the Clearing Agency, and shall have no obligation to the Note Owners.

 

Section 2.12.  Definitive Notes.  Definitive Notes will be issued only if:

 

 

 

In each case, the Indenture Trustee shall then notify Note Owners of the related Class of Notes through the Clearing Agency of the occurrence of any such event and of the availability of Definitive Notes of the related Class of Notes to Note Owners requesting the same.

 

Upon surrender to the Indenture Trustee of the Note or Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by registration instructions, the Issuer at its own expense shall execute and deliver the Definitive Notes to the Indenture Trustee and the Indenture Trustee shall authenticate the Definitive Notes in accordance with the instructions of the Clearing Agency.  None of the Issuer, the Note Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions.  Upon the issuance of Definitive Notes of a Class, the Indenture Trustee shall recognize the Noteholders of the Definitive Notes as Noteholders hereunder.

 

Section 2.13.  Release of Collateral.  Subject to Section 11.01 and the terms of the other 201_-[__] Basic Documents, the Indenture Trustee shall release property from the Lien of this Indenture only upon receipt of an Issuer Request accompanied by an Officer’s Certificate, an Opinion of Counsel and, if required by Section 11.01, Independent Certificates in accordance with Sections 314(c) and 314(d)(1) of the TIA or an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates.  If the Commission shall issue an exemptive order under TIA Section 304(d) modifying the Indenture Trustee’s obligations under TIA Sections 314(c) and 314(d)(1), the Indenture Trustee shall release property from the Lien of this Indenture in accordance with the conditions and procedures set forth in such exemptive order.

 

Section 2.14.  [Reserved].

 

Section 2.15.  Authenticating Agents.  Upon the request of the Issuer, the Indenture Trustee shall appoint one or more Authenticating Agents with power to act on its behalf and subject to its direction in the authentication of Notes in connection with issuance, transfers and exchanges under Sections 2.02, 2.03, 2.05, 2.06 and 9.05, as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized by such Sections to authenticate such Notes.  For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent pursuant to this Section shall be deemed to be the authentication of Notes by the Indenture Trustee.

 

Any entity into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any document or any further act on the part of the parties hereto or such Authenticating Agent or such successor entity.

 

Section 2.16.  FATCA.  Each Noteholder or holder of an interest in a Note, by acceptance of such Note or such interest therein, agrees to provide to the Indenture Trustee, any Note Paying Agent or the Issuer, upon its request, the Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is applicable, the Noteholder FATCA Information. In addition, each Noteholder or holder of an interest in a Note, by acceptance of such Note or such interest therein, agrees that the Indenture Trustee has the right to withhold any amounts of interest (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or holder of an interest in a Note that fails to comply with the requirements of the preceding sentence.

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE THREE

COVENANTS AND REPRESENTATIONS

 

Section 3.01.  Payment of Principal and Interest.  The Issuer will duly and punctually pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes and this Indenture. Amounts properly withheld under the Code by any Person from a payment to any Noteholder of interest and/or principal shall be considered as having been paid by the Issuer to such Noteholder for all purposes of this Indenture.

 

Section 3.02.  Maintenance of Office or Agency.  The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office of the Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.

 

Section 3.03.  Money for Payments to be Held in Trust.  As provided in Sections 5.04(b) and 8.03, all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the 201_-[__] Distribution Account pursuant to such Sections shall be made on behalf of the Issuer by the Indenture Trustee or by a Note Paying Agent, and no amounts so withdrawn from the 201_-[__] Distribution Account for payments of Notes shall be paid over to the Issuer except as provided in this Section.

 

The Issuer will cause each Note Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Note Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Note Paying Agent, it hereby so agrees), subject to the provisions of this Section, that such Note Paying Agent will:

 

 

 

 

 

 

The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Note Paying Agent to pay to the Indenture Trustee all sums held in trust by such Note Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Note Paying Agent; and upon such payment by any Note Paying Agent to the Indenture Trustee, such Note Paying Agent shall be released from all further liability with respect to such money.

 

Subject to Applicable Laws with respect to escheat of funds, any money held by the Indenture Trustee or any Note Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuer on Issuer Request; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Note Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or such Note Paying Agent, before being required to make any such repayment, shall at the expense and direction of the Issuer cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at the expense and direction of the Issuer, any other reasonable means of notification of such repayment (including mailing notice of such repayment to Holders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in monies due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Note Paying Agent, at the last address of record for each such Holder).

 

Section 3.04.  Existence.  The Issuer will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other State or of the United States, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Trust Estate and each other instrument or agreement included in the Trust Estate.

 

Section 3.05.  Protection of the Trust Estate.  The Issuer intends the security interest Granted pursuant to this Indenture in favor of the Indenture Trustee on behalf of the Noteholders

to be prior to all other Liens in respect of the Trust Estate, and the Issuer shall take all actions necessary to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the Noteholders, a first Lien on and a first priority, perfected security interest in the Trust Estate.  The Issuer will from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to:

 

 

 

 

 

 

The Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact to execute any financing statement, continuation statement or other instrument required to be executed pursuant to this Section.

 

The Issuer authorizes the Indenture Trustee and its counsel to file UCC financing statements in form and substance satisfactory to the Indenture Trustee, describing the collateral as “all assets of the Issuer, including its present and future right, title and interest in, to and under (but not, except to the extent required by law, any obligations with respect to) such assets, whether now owned or existing or hereafter arising or acquired and wheresoever located” or words to that effect, and any limitations on such collateral description.

 

Section 3.06.  Opinions as to Trust Estate.

 

 

Counsel in which such details are given or (ii) no such action is necessary to continue such lien and security interest.

 

Section 3.07.  Performance of Obligations; Servicing of 201_-[__] Leases and 201_-[__] Vehicles.

 

 

 

 

 

Trustee shall notify the other entity of such appointment, specifying in such notice the name and address of such successor Servicer.

 

 

If the Indenture Trustee shall succeed to the duties of the Servicer as provided herein, it shall do so in its individual capacity and not in its capacity as Indenture Trustee and, accordingly, except as otherwise provided in the proviso to Section 6.01(a), the provisions of Article Six shall be inapplicable to the Indenture Trustee in its duties as the successor to the Servicer and the servicing of the 201_-[__] Leases and 201_-[__] Vehicles.  In case the Indenture Trustee shall become successor to the Servicer under the 201_-[__] Servicing Agreement, the Indenture Trustee shall be entitled to appoint as Servicer any one of its Affiliates or agents; provided, that the Indenture Trustee, in its capacity as Servicer, shall be fully liable for the actions and omissions of such Affiliate or agent in such capacity as Successor Servicer.  Notwithstanding any other provisions of this Indenture to the contrary, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid under the 201_-[__] Servicing Agreement and the amount necessary to induce any Successor Servicer to act as Successor Servicer under the 201_-[__] Servicing Agreement.

 

 

Section 3.08.  Negative Covenants.  So long as any Notes are Outstanding, the Issuer shall not:

 

 

 

 

 

 

 

Section 3.09.  Issuer May Consolidate, etc., Only on Certain Terms.

 

 

 

 

 

 

 

 

 

 

 

partnership taxable as a corporation, each for federal income tax purposes, (B) such transaction will not cause the Notes to be characterized other than as indebtedness for federal income tax purposes and (C) such transaction will not cause the Notes to be deemed to have been exchanged for purposes of Section 1001 of the Code.

 

 

 

 

Section 3.10.  Successor or Transferee.

 

 

 

Section 3.11.  Servicer’s Obligations.  The Issuer shall cause the Servicer to comply with the 201_-[__] Servicing Agreement.

 

Section 3.12.  Guarantees, Loans, Advances and Other Liabilities.  Except as otherwise contemplated by the 201_-[__] Basic Documents, the Issuer shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.

 

Section 3.13.  Capital Expenditures.  The Issuer shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty).

 

Section 3.14.  Removal of Administrator.  So long as any Notes are Outstanding, the Issuer shall not remove the Administrator without cause without providing prior written notice to the Rating Agencies.

 

Section 3.15.  Restricted Payments.  Except as otherwise permitted by the 201_-[__] Basic Documents, the Issuer shall not, directly or indirectly, (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, (a) distributions as contemplated by, and to the extent funds are available for such purpose under, the 201_-[__] Basic Documents and (b) payments to the Trustees pursuant to Section 1.02(b) of the 201_-[__] Administration Agreement.  The Issuer will not, directly or indirectly, make payments to or distributions from the 201_-[__] Exchange Note Collection Account, the 201_-[__] Distribution Account or the 201_-[__] Reserve Account except in accordance with this Indenture and the other 201_-[__] Basic Documents.

 

Section 3.16.  Notice of Events of Default.  The Issuer shall give the Indenture Trustee and each Rating Agency prompt written notice of each Event of Default hereunder.

 

Section 3.17.  Further Instruments and Acts.  Upon request of the Indenture Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.

 

Section 3.18.  Delivery of 201_-[__] Exchange Note.  On the 201_-[__] Closing Date, the Issuer shall deliver or cause to be delivered to the Indenture Trustee as security for its obligations hereunder, the 201_-[__] Exchange Note.  The Indenture Trustee shall take possession of the 201_-[__] Exchange Note in the State of New York and shall at all times during the period of this Indenture maintain custody of the 201_-[__] Exchange Note in the State of New York.

 

Section 3.19.  Compliance With Laws.  The Issuer shall comply with the requirements of all Applicable Laws, the non-compliance with which would, individually or in the aggregate, materially and adversely affect the ability of the Issuer to perform its obligations under the Notes, this Indenture or any other 201_-[__] Basic Document.

 

Section 3.20.  Annual Statement as to Compliance.  The Issuer will deliver to the Transferor and the Indenture Trustee, on or before June 30 of each year (commencing with the June 30 that is at least six months after the 201_-[__] Closing Date), an Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:

 

 

covenant, specifying each such default known to such Authorized Officer and the nature and status thereof.

 

Section 3.21.  Representations.  The Issuer hereby represents, warrants, and covenants to the Indenture Trustee as follows on the 201_-[__] Closing Date:

 

 

 

 

 

 

 

ARTICLE FOUR

SATISFACTION AND DISCHARGE

 

Section 4.01.  Satisfaction and Discharge of Indenture.  This Indenture shall cease to be of further effect with respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments of principal thereof and interest thereon, (d) Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.12 and 3.13, (e) certain rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Section 4.02) and (f) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when:

 

 

 

 

pursuant to this Section will not cause any Noteholder to be treated as having exchanged its Notes for purposes of Section 1001 of the Code.

 

Section 4.02.  Satisfaction, Discharge and Defeasance of the Notes.

 

 

 

 

 

 

 

 

 

 

Indenture relating to the defeasance contemplated by this Section will not cause any Noteholder to be treated as having exchanged its Notes for purposes of Section 1001 of the Code; and

 

 

Section 4.03.  Application of Trust Money.  All monies deposited with the Indenture Trustee pursuant to this Article shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Note Paying Agent, to the Holders of the particular Notes for the payment or redemption of which such monies have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such monies need not be segregated from other funds except to the extent required herein or in the 201_-[__] Servicing Agreement or required by Applicable Law.

 

Section 4.04.  Repayment of Monies Held by Note Paying Agent.  In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all monies then held by any Note Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 3.03, and thereupon such Note Paying Agent shall be released from all further liability with respect to such monies.

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE FIVE

EVENTS OF DEFAULT; REMEDIES

 

Section 5.01.  Events of Default.  “Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

 

 

 

 

 

Notwithstanding the foregoing, a delay in or failure of performance referred to under clauses (a) through (d) above for a period of 120 days will not constitute an Event of Default if that failure or delay was caused by a Force Majeure.

 

The Issuer shall deliver to the Transferor and the Indenture Trustee, within five days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any event which with the giving of notice, the lapse of time or both would become an Event of Default under

clause (c) or (d) above, its status and what action the Issuer is taking or proposes to take with respect thereto.

 

Section 5.02.  Acceleration of Maturity; Rescission and Annulment.

 

 

 

 

 

No such rescission shall affect any subsequent default or impair any right consequent thereto.

 

Section 5.03.  Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.

 

 

 

 

 

 

 

 

 

and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of the Indenture Trustee’s or each predecessor Indenture Trustee’s negligence or bad faith.

 

 

 

 

Section 5.04.  Remedies; Priorities.

 

 

 

 

 

 

provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Trust Estate following an Event of Default, other than an Event of Default described in Section 5.01(i) or (ii), unless (A) the Holders of 100% of the Outstanding Amount of the Notes of the Controlling Class consent thereto, (B) the proceeds of such sale or liquidation distributable to the Noteholders are sufficient to discharge in full all amounts then due and unpaid upon such Notes for principal and interest or (C) the Indenture Trustee determines that the Trust Estate will not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of Holders of 66 2/3% of the Note Balance of the Controlling Class; provided, further, that the Indenture Trustee may not sell the Trust Estate unless it shall first have obtained an Opinion of Counsel (at the expense of the Issuer) that such sale will not cause the Titling Trust or an interest therein or portion thereof or the Issuer to be classified as an association or a publicly traded partnership taxable as a corporation for federal income tax purposes.  In determining such sufficiency or insufficiency with respect to clauses (B) and (C), the Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose.

 

 

 

 

 

Section 5.05.  Optional Preservation of the Trust Estate.  If the Notes have been declared to be due and payable under Section 5.02 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, but need not, elect to maintain possession of the Trust Estate and continue to apply the proceeds thereof, in accordance with Sections 3.01 and 8.03.  It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Trust Estate.  In determining whether to maintain possession of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an opinion of

an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose.

 

Section 5.06.  Limitation of Suits.  No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (i) such ▇▇▇▇▇▇ has previously given written notice to the Indenture Trustee of a continuing Event of Default; (ii) the Holders of not less than 25% of the Note Balance of the Controlling Class have made written request to the Indenture Trustee to institute such Proceeding in respect of such Event of Default in its own name as Indenture Trustee hereunder; (iii) such Holder or Holders have offered to the Indenture Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in complying with such request; (iv) the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such Proceedings; and (v) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by the Majority Noteholders of the Controlling Class.

 

It is understood and intended that no one or more Holders of Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided.

 

In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders of Notes, each representing less than a majority of the Outstanding Amount of the Notes of the Controlling Class, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture.

 

Section 5.07.  Unconditional Rights of Noteholders to Receive Principal and Interest.  Notwithstanding any other provisions in this Indenture, any Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Note on or after the respective due dates thereof expressed in such Note or in this Indenture (or, in the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.

 

Section 5.08.  Restoration of Rights and Remedies.  If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.

 

Section 5.09.  Rights and Remedies Cumulative.  No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any

other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.10.  Delay or Omission Not a Waiver.  No delay or omission of the Indenture Trustee or any Holder of any Note to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.

 

Section 5.11.  Control by Noteholders of the Controlling Class.  The Majority Noteholders of the Controlling Class shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or exercising any trust or power conferred on the Indenture Trustee; provided that:

 

 

 

 

 

Notwithstanding the rights of Noteholders set forth in this Section, subject to Section 6.01, the Indenture Trustee need not take any action that it determines might involve it in liability or might materially adversely affect the rights of any Noteholders not consenting to such action.

 

Section 5.12.  Waiver of Past Defaults.  Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 5.02, the Majority Noteholders of the Controlling Class may, on behalf of all Noteholders, waive any past Default or Event of Default and its consequences except a Default or Event of Default (i) in payment of principal of or interest on any of the Notes or (ii) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Note.  In the case of any such waiver, the Issuer, the Indenture Trustee and the Holders of Notes shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.

 

Upon any such waiver, such Default or Event of Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.

 

Section 5.13.  Undertaking for Costs.  All parties to this Indenture agree, and each Holder of a Note by such ▇▇▇▇▇▇’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, the provisions of this Section shall not apply to any suit instituted by (i) the Indenture Trustee, (ii) any Noteholder, or group of Noteholders, in each case holding in the aggregate more than 10% of the Outstanding Amount of the Notes (or, in the case of any suit which is instituted by the Controlling Class, more than 10% of the Note Balance of the Controlling Class) or (iii) by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in this Indenture (or, in the case of redemption, on or after the Redemption Date).

 

Section 5.14.  Waiver of Stay or Extension Laws.  The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 5.15.  Action on Notes.  The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied in accordance with Section 5.04(b).

 

Section 5.16.  Performance and Enforcement of Certain Obligations.

 

connection with the 201_-[__] Servicing Agreement, as the case may be, to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Servicer of its obligations under the 201_-[__] Servicing Agreement.

 

 

Section 5.17.  Sale of Trust Estate.  If the Indenture Trustee acts to sell the Trust Estate or any part thereof, pursuant to Section 5.04(a), the Indenture Trustee shall publish a notice in an Authorized Newspaper stating that the Indenture Trustee intends to effect such a sale in a commercially reasonable manner and on commercially reasonable terms, which shall include the solicitation of competitive bids.  Following such publication, the Indenture Trustee shall, unless otherwise prohibited by applicable law from any such action, sell the Trust Estate or any part thereof, in such manner and on such terms as provided above to the highest bidder; provided, however, that the Indenture Trustee may from time to time postpone any sale by public announcement made at the time and place of such sale.  The Indenture Trustee shall give notice to the Transferor and Servicer of any proposed sale, and the Transferor and Servicer shall be permitted to bid for the Trust Estate at any such sale.  The Indenture Trustee may obtain a prior determination from a conservator, receiver or trustee in bankruptcy of the Issuer that the terms and manner of any proposed sale are commercially reasonable.  The power to effect any sale of any portion of the Trust Estate pursuant to Section 5.04 and this Section shall not be exhausted by any one or more sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall has been sold or all amounts payable on the Notes shall have been paid.

 

ARTICLE SIX

THE INDENTURE TRUSTEE

 

Section 6.01.  Duties of Indenture Trustee.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 6.02.  Rights of Indenture Trustee

 

.

 

 

 

 

 

 

pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

 

Section 6.03.  Individual Rights of Indenture Trustee.  The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of the Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee.  Any Note Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same with like rights.  The Indenture Trustee must, however, comply with Section 6.11.

 

Section 6.04.  Indenture Trustee’s Disclaimer.  The Indenture Trustee shall not be (i) responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, (ii) accountable for the Issuer’s use of the proceeds from the Notes and (iii) responsible for any statement of the Issuer in the Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication.

 

Section 6.05.  Notice of Defaults and Repurchase Requests.

 

 

 

Section 6.06.  Reports by Indenture Trustee to Holders.  On or prior to each Payment Date, the Indenture Trustee shall deliver or make available on its website (___________.com) to each Noteholder a copy of each Monthly Investor Report delivered to it pursuant to the 201_-[__] Servicing Supplement.  The Indenture Trustee shall make available electronically, within a reasonable period of time after the end of each calendar year, to each Person who at any time

during such calendar year was a Noteholder, such information furnished to the Indenture Trustee as may be required to enable such Person to prepare its federal and State income tax returns.  The Indenture Trustee shall provide to each Noteholder upon request, copies of the 201_-[__] Basic Documents, the report regarding the Servicer’s compliance and the accountants’ attestation delivered pursuant to the 201_-[__] Servicing Supplement.

 

Section 6.07.  Compensation and Indemnity.  The Issuer shall, or shall cause the Administrator to, pay to the Indenture Trustee from time to time reasonable compensation for its services pursuant to a fee agreement between the Administrator and the Indenture Trustee. The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall, or shall cause the Administrator to, reimburse the Indenture Trustee for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts.

 

The Issuer shall, or shall cause the Administrator to, indemnify and hold harmless the Indenture Trustee and its officers, directors, employees, representatives and agents against any and all loss, liability, tax (other than taxes based on the income of the Indenture Trustee) or expense (including attorneys’ fees) of whatever kind or nature regardless of their merit directly or indirectly incurred by it or them without willful misconduct, negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the transactions contemplated by this Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under this Indenture or under any of the other 201_-[__] Basic Documents.  The Indenture Trustee shall notify the Issuer and the Administrator promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Administrator shall not relieve the Issuer or the Administrator of its obligations hereunder.  The Issuer shall, or shall cause the Administrator to, defend any such claim, and the Indenture Trustee may have separate counsel and the Issuer shall, or shall cause the Administrator to, pay the fees and expenses of such counsel.  Neither the Issuer nor the Administrator need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee’s own willful misconduct, negligence or bad faith.

 

The Issuer’s payment obligations to the Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture or resignation or removal of the Indenture Trustee.  When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.01(e) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable Insolvency Law.

 

Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for special, indirect or consequential damages of any kind whatsoever, including but not limited to lost profits, even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

Section 6.08.  Replacement of Indenture Trustee.

 

 

 

 

 

 

Section 6.09.  Successor Indenture Trustee by ▇▇▇▇▇▇.

 

 

 

Section 6.10.  Appointment of Co-Indenture Trustee or Separate Indenture Trustee.

 

 

 

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 Indenture Trustee;

 

 

 

 

 

Section 6.11.  Eligibility; Disqualification.  The Indenture Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA and shall in addition have a combined capital and surplus of at least $50,000,000 (as set forth in its most recent published annual report of condition) and shall have a long-term debt rating of “A-” or better by [___] and “A3” or better by[__________] or shall otherwise be acceptable to each Rating Agency.  The Indenture Trustee shall satisfy the requirements of Section 310(b) of the TIA.

 

Section 6.12.  Preferential Collection of Claims Against Issuer.  The Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b).  An Indenture Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.

 

Section 6.13.  Issuer as Holder of the 201_-[__] Exchange Note.  So long as any Notes are Outstanding, to the extent that the Owner Trustee or the Issuer has rights as a holder of the 201_-[__] Exchange Note, including rights to distributions and notice, or is entitled to consent to any actions taken by the Transferor, the Owner Trustee or the Issuer may initiate such action or grant such consent only with consent of the Indenture Trustee (acting at the direction of the Majority Noteholders of the Controlling Class).  To the extent that the Issuer has rights as a holder or Registered Pledgee of the 201_-[__] Exchange Note or has the right to consent or

withhold consent with respect to actions taken by the Transferor, the Owner Trustee or the Issuer, such rights shall be exercised or consent granted (or withheld) upon the written direction of the Majority Noteholders of the Controlling Class; provided, however, that subject to Section 3.07, any direction to the Indenture Trustee to remove or replace the Servicer upon a Servicer Event of Default shall be made by Holders of Notes evidencing not less than 66 2/3% of the Outstanding Amount of the Controlling Class.

 

Section 6.14.  Representations and Warranties of Indenture Trustee.  The Indenture Trustee hereby makes the following representations and warranties, as of the 201_-[__] Closing Date, on which the Issuer and Noteholders shall rely:

 

 

 

 

 

 

 

 

 

Section 6.15.  Furnishing of Monthly Investor Reports and Other Documents.  The Indenture Trustee shall furnish to any Noteholder promptly upon receipt of a written request by such Noteholder or Note Owner therefor (at the expense of the requesting Noteholder or Note Owner), copies of the 201_-[__] Basic Documents and duplicates or copies of all reports, notices, requests, demands, certificates and any other instruments furnished to the Indenture Trustee under the 201_-[__] Basic Documents.

 

Section 6.16.  Encryption.  Notwithstanding anything to the contrary herein, any and all communications (both text and attachments) by or from the Indenture Trustee that the Indenture Trustee in its sole discretion deems to contain confidential, proprietary, and/or sensitive information may be encrypted or made available at the Indenture Trustee’s website at www_______.com on a password protected basis.

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE SEVEN

NOTEHOLDER COMMUNICATIONS AND REPORTS

 

Section 7.01.  Noteholder List and Noteholder Communications.

 

 

 

 

 

 

Section 7.02.  Noteholder Demand for Asset Representations Review. If a Delinquency Trigger occurs, a Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may make a demand on the Indenture Trustee to cause a vote of the Noteholders or Note Owners, as applicable, on whether to direct the Asset Representations Reviewer to conduct a Review under the Asset Representations Review Agreement.  In the case of a Note Owner, each demand must be accompanied by a certification from that Person that it is a Note Owner, together with at least one form of documentation evidencing its ownership of a Note, including a trade confirmation, account statement, letter from a broker or dealer or similar document.  If the Indenture Trustee receives within 90 days of the filing of the Form 10-D reporting the occurrence of the Delinquency Trigger a written demand from the Noteholders and Note Owners of at least 5% of the aggregate Note Balance of the Notes to initiate a vote with respect to the Review, then (a) the Indenture Trustee will promptly notify the Servicer and the Administrator thereof and request such vote of the Noteholders and Note Owners through the applicable Clearing Agency and (b) the Servicer will include in the Form 10-D report for the Collection Period in which such demand was received (i) a statement that Holders of a sufficient percentage of the aggregate Note Balance of the Notes are requesting a full Noteholder vote on whether to direct the Asset Representations Reviewer to conduct a Review and (ii) a description of the applicable voting procedures, including the applicable voting deadline.  The vote will remain open until the 150th day after the filing of that Form 10-D.  Assuming a voting quorum of Noteholders and Note Owners holding at least 5% of the aggregate Note Balance of the Notes is reached, if the Noteholders and Note Owners of a majority of the Note Balance of Notes voted agree to a Review, the Indenture Trustee will promptly send a Review Notice to the Asset Representations Reviewer and the

Servicer under the Asset Representations Review Agreement directing the Asset Representations Reviewer to conduct the Review.

 

Section 7.03.  Reports by Issuer.

 

 

 

 

 

 

Section 7.04.  Reports by Indenture Trustee.

 

 

 

ARTICLE EIGHT

DISBURSEMENTS AND RELEASES

 

Section 8.01.  Collection of Money.  Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture.  The Indenture Trustee shall apply all such money received by it as provided in this Indenture.  Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings.  Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in Article Five.

 

Section 8.02.  Monthly Investor Report.

 

 

 

 

Section 8.03.  Disbursement of Funds.

 

 

[__] Exchange Note or the 201_-[__] Reference Pool under Section 3.01(c) of the Basic Collateral Agency Agreement or Article Eight of the Basic Collateral Agency Agreement to the extent not paid by the Borrower or the Titling Trust Administrator, (B) to pay to the Administrative Agent any expenses or indemnified amounts due with respect to the 201_-[__] Exchange Note or the 201_-[__] Reference Pool under Section 7.05 of the Basic Collateral Agency Agreement or Article Eight of the Basic Collateral Agency Agreement to the extent not paid by the Borrower or the Titling Trust Administrator, (C) to pay to the Asset Representation Reviewer any amounts due under the Asset Representations Review Agreement and (D) to the payment of all amounts, including indemnities, then due to the Trustees to the extent not paid by the Transferor or the Administrator;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

will be applied up to the amount necessary to reduce the Note Balance to zero and discharge the Notes and pay such amounts due.

 

 

Section 8.04.  201_-[__] Bank Accounts; General Provisions Regarding 201_-[__] Bank Accounts.

 

 

 

Account Draw Amount, if any, for such Payment Date for distribution according to the priorities specified in Section 8.03(a)(i) through (iii).

 

 

 

 

 

 

Section 8.05.  Release of Trust Estate.

 

 

 

 

 

ARTICLE NINE

SUPPLEMENTAL INDENTURES

 

Section 9.01.  Supplemental Indentures Without Consent of Noteholders.

 

 

 

 

 

 

 

 

 

 

provided, however, that no such supplemental indenture (i) may materially adversely affect the interests of any Noteholder and (ii) will be permitted unless an Opinion of Counsel is delivered

to the Indenture Trustee to the effect that such supplemental indenture will not (a) cause the Issuer to be classified as an association or a publicly traded partnership taxable as a corporation for federal income tax purposes, (b) cause the Notes to be characterized other than as indebtedness for federal income tax purposes and (c) cause the Notes to be deemed to have been exchanged for purposes of Section 1001 of the Code.  The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.

 

 

Section 9.02.  Supplemental Indentures With Consent of Noteholders.  The Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto, with prior written notice to the Rating Agencies, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or modifying in any manner the rights of the Noteholders; provided, that no such amendment may be made without the consent of the Majority Noteholders of the Controlling Class.  Notwithstanding the foregoing, the Issuer and the Indenture Trustee may not, without the consent of each Noteholder affected thereby, enter into any supplements for any of the following purposes:

 

 

 

 

 

 

 

 

 

 

 

The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.

 

The Indenture Trustee may in its discretion determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon the Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder.  The Indenture Trustee shall not be liable for any such determination made in good faith.

 

It shall not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall mail to the Holders of Notes to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture.  Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.

 

Section 9.03.  Execution of Supplemental Indentures.

 

 

 

Section 9.04.  Effect of Supplemental Indenture.  Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer, the Owner Trustee and the Holders of Notes shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

Section 9.05.  Conformity with Trust Indenture Act.  Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect so long as this Indenture shall then be qualified under the TIA.

 

Section 9.06.  Reference in Notes to Supplemental Indentures.  Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture.  If the Issuer or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.

 

ARTICLE TEN

REDEMPTION OF NOTES

 

Section 10.01.  Redemption.  Pursuant to Section 5.01(a) of the Servicing Supplement, on any Payment Date on which the Outstanding Amount is equal to or less than 10% of the Initial Note Balance, after giving effect to all principal payments on such Payment Date, the Servicer may cause the Notes to be redeemed in whole but not in part by purchasing the 201_-[__] Exchange Note.  If the Notes are to be redeemed pursuant to this Section, the Servicer or the Issuer will notify the Indenture Trustee of such election not less than ten days and not more than 30 days prior to the Redemption Date.  The Issuer will, or will cause the Servicer to, irrevocably deposit, by 2:00 p.m., New York City time, on the Business Day prior to the Redemption Date, in the 201_-[__] Exchange Note Collection Account an amount sufficient to pay the Note Redemption Price in full, which amounts shall be applied in accordance with Section 8.03.  Upon redemption of the Notes and the payment of the Note Redemption Price in full, the Indenture Trustee shall release the 201_-[__] Exchange Note and the related components of the Trust Estate from the Lien of this Indenture and shall deliver the 201_-[__] Exchange Note and all such other components to or upon the order of the Servicer.

 

Section 10.02.  Form of Redemption Notice.  Notice of redemption under Section 10.01 shall be given by the Indenture Trustee by first-class mail, postage prepaid, or by facsimile and mailed or transmitted not later than ten days prior to the applicable Redemption Date to each Holder of Notes, as of the close of business on the Record Date preceding the applicable Redemption Date, at such Holder’s address or facsimile number appearing in the Note Register.

 

All notices of redemption will state:

 

 

 

 

 

 

Notice of redemption of the Notes will be given by the Indenture Trustee in the name and at the expense of the Issuer.  Failure to give notice of redemption, or any defect in such notice, to any Noteholder will not impair or affect the validity of the redemption of any other Note.

 

Section 10.03.  Notes Payable on Redemption Date.  The Notes to be redeemed shall, following notice of redemption as required by Section 10.02, on the Redemption Date become due and payable at the Note Redemption Price, and (unless the Issuer shall default

in the payment of the Note Redemption Price) no interest shall accrue on the Note Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Note Redemption Price.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE ELEVEN

MISCELLANEOUS

 

Section 11.01.  Compliance Certificates and Opinions, etc.

 

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

 

 

 

 

 

any such withdrawal or release since the commencement of the then-current fiscal year of the Issuer, as set forth in the certificates furnished pursuant to clause (i) above and this clause (ii), is 10% or more of the Note Balance, but such a certificate need not be furnished with respect to any property or securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer’s Certificate is less than $25,000 or less than 1% of the Note Balance.

 

 

 

 

Section 11.02.  Form of Documents Delivered to Indenture Trustee.  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous.  Any such certificate of an Authorized Officer or Opinion of

Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Issuer, the Transferor or the Administrator, stating that the information with respect to such factual matters is in the possession of the Servicer, the Issuer, the Transferor or the Administrator, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer’s compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report.  The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article Six.

 

Section 11.03.  Acts of Noteholders.

 

 

 

 

 

Section 11.04.  Notices.  Unless otherwise specified in this Indenture, all notices, requests, demands, consents, waivers, Act of Noteholders or other communications to or from

the parties to this Indenture 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 Indenture, any such notice, request, demand, consent or other communication will be delivered or addressed, in the case of (i) the Indenture Trustee by any Noteholder or by the Issuer at the Corporate Trust Office (e-mail: ________@____.com, telecopier no. (__) __-___), (ii) the Issuer by the Indenture Trustee or by any Noteholder at Mercedes-Benz Auto Lease Trust 201_-[__], c/o [____________] (telecopier no. (__) __-___), Attention: Corporate Trust Administration, (e-mail: _____@_____.com), with a copy to the Administrator at Mercedes-Benz Financial Services USA LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇  ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (e-mail ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇), (iii) to each Rating Agency, as applicable, by the Issuer, the Indenture Trustee or the Owner Trustee, in the case of (a) [______], at [_______________________], Attention:  [_____________] (e-mail: [_________], facsimile: (212) ___-____) and (b) [______], at [________________] Attention: [___________] (email: [______________]) and (v) as to each of the foregoing, at such other address as shall be designated by written notice to the other parties.

 

Section 11.05.  Notices to Noteholders; Waiver.  Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by first-class mail, postage prepaid, or via overnight courier to each Noteholder affected by such event, at such Holder’s address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.  In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.

 

In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.

 

Where this Indenture provides for notice to any Rating Agency, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or Event of Default.

 

Section 11.06.  Conflict with Trust Indenture Act.  If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.

 

The provisions of TIA Sections 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.

 

Section 11.07.  Alternate Payment and Notice Provisions.  Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Note Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.

 

Section 11.08.  Effect of Headings and Table of Contents.  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 11.09.  Successors and Assigns.  All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not.  All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents.

 

Section 11.10.  Severability.  In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Indenture and the Notes shall not in any way be affected or impaired thereby.

 

Section 11.11.  Benefits of Indenture.  Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Owner Trustee, the Noteholders (and, with respect to Sections 5.04 and 8.03, the Certificateholders), any other party secured hereunder and any other Person with an ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 11.12.  Legal Holidays.  In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and, except as otherwise provided in the 201_-[__] Basic Documents, no interest shall accrue for the period from and after any such nominal date.

 

Section 11.13.  GOVERNING LAW.

 

 

 

Section 11.14.  WAIVER OF JURY TRIAL.  EACH PARTY TO THIS INDENTURE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR ANY OTHER 201_-[__] BASIC DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE OR ANY SUCH OTHER 201_-[__] BASIC DOCUMENT.

 

Section 11.15.  Counterparts.  This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

Section 11.16.  Recording of Indenture.  If this Indenture is subject to recording in any appropriate public recording offices, such recording shall be effected by the Issuer and at its expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.

 

Section 11.17.  Issuer Obligation.  No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner

Trustee have no such obligations in their individual capacities) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by Applicable Law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.  For all purposes of this Indenture, in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles Six, Seven and Eight of the Trust Agreement.

 

Section 11.18.  No Petition.  The Indenture Trustee, by entering into this Indenture, and each Noteholder or Note Owner accepting a Note or a beneficial interest therein, as the case may be, hereby covenants and agrees that for a period of one year and one day (or, if longer, any applicable preference period) after payment in full of the Exchange Notes, Notes and other Securities, it will not institute against the Titling Trust, the Transferor, the Issuer or the Initial Beneficiary, or join in any institution against the Titling Trust, the Transferor, the Issuer or the Initial Beneficiary of any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceedings or other Proceedings under any Insolvency Law in connection with any obligations relating to the Notes, the 201_-[__] Exchange Note or any 201_-[__] Basic Document and agrees that it will not cooperate with or encourage others to institute any such Proceeding.

 

Section 11.19.  No Recourse.  The Notes represent obligations of the Issuer only and do not represent an interest in or obligations of the Titling Trust, the Servicer, the Transferor or any of their respective Affiliates, and no recourse may be had against such parties or their assets, except as may be set forth in this Indenture and the other 201_-[__] Basic Documents.  Each Noteholder, by acceptance of a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity or any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.

 

Section 11.20.  Inspection.  The Issuer agrees that, on at least ten Business Days’ prior written notice, it will make available to any representative of the Indenture Trustee, during the Issuer’s normal business hours, all the books of account, records, reports and other papers of the Issuer, to make copies and extracts therefrom, to cause such books to be audited by Independent certified public accountants, and to discuss the Issuer’s affairs, finances and accounts with the Issuer’s officers, employees and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested; provided, however, that so long as no Event of Default has occurred, no more than one such review shall be conducted in any calendar year.  The Indenture Trustee shall, and shall cause its representatives to, hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture

Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder.

 

Section 11.21.  Subordination.

 

 

 

Section 11.22.  Termination of Collateral Agent’s Lien.  In connection with the final payment on the Notes and the termination of the Lien of the Indenture, whether pursuant to Section 4.01, Section 10.01 or otherwise, the Indenture Trustee shall, at the direction of the Borrower, the Lender or the Servicer, deliver to the Collateral Agent notices and other documents requested to (i) terminate the Lien of the Collateral Agent, if any, on the Certificates of Title to the 201_-[__] Vehicles and (ii) otherwise release the rights the Collateral Agent has to the 201_-[__] Vehicles by virtue of its Lien, if any, on the related Certificates of Title and the other components of the Trust Estate.

 

Section 11.23.  Each Exchange Note Separate; Assignees of Exchange Note.  Each party hereto acknowledges and agrees (and each holder or pledgee of the 201_-[__] Exchange Note, by virtue of its acceptance of such Exchange Note or pledge thereof acknowledges and agrees) that (i) the Specified Interest is a separate series of the Titling Trust as provided in Section 3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., (ii) the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to (a) the 201_-[__] Exchange Note or the related 201_-[__] Reference Pool shall be enforceable against such 201_-[__] Reference Pool only and not against any other Reference Pool or the Revolving Facility Pool and (b) any other Exchange Note, any other Reference Pool, or the Revolving Facility Pool shall be enforceable against such other Exchange Note, other Reference Pools, or the Revolving Facility Pool only, as applicable, and not against the 201_-[__] Exchange Note or any 201_-[__] Lease or 201_-[__] Vehicle included in the 201_-[__] Reference Pool, (iii) except to the extent required by law, the leases and the related leased vehicles included in the Revolving Facility Pool or leases and the related leased vehicles included in any other Reference Pool with respect to any other Exchange Note (other than the 201_-[__] Exchange Note transferred hereunder which is related to the 201_-[__] Reference Pool) shall not be subject to the claims, debts, liabilities, expenses or obligations arising from or with respect to the 201_-[__] Exchange Note in respect of such claim, (iv) no creditor or holder of a claim relating to (a) the 201_-[__] Exchange Note or the related 201_-[__] Reference Pool shall be entitled to maintain any action against or recover any assets allocated to any other Reference Pool, the Revolving Facility Pool or any other Exchange Note or the assets allocated thereto (except to the extent of amounts available to such Persons on a fully subordinated basis) and (b) any other Reference Pool, the Revolving Facility Pool or any other Exchange Note other than the 201_-[__] Exchange Note related to the 201_-[__] Reference Pool shall be entitled to maintain any action against or recover any assets allocated to the 201_-[__] Reference Pool and (v) any purchaser, assignee or pledgee of an interest in the 201_-[__] Reference Pool or, the 201_-[__] Exchange Note, must, prior to or contemporaneously with the grant of any such assignment, pledge or security interest, (a) give to the Titling Trust a non-petition covenant substantially similar to that set forth in Section 11.10 of the Titling Trust Agreement and (b) execute an agreement for the benefit of each holder, assignee or pledgee from time to time of any other Exchange Note to release all claims to the assets of the Titling Trust allocated to the Revolving Facility Pool and each other Reference Pool and, in the event that such release is not given effect, to fully subordinate all claims it may be deemed to have against the assets of the Titling Trust allocated to the Revolving Facility Pool and each other Reference Pool.

 

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

 

	MERCEDES-BENZ AUTO LEASE TRUST 201_-[__]
	By:	[_______________], not in its individual capacity but solely as Owner Trustee
	By:
		Name:
		Title:

 

	[_______________], not in its individual capacity but solely as Indenture Trustee
	By:
		Name:
		Title:

 

 

 

Indenture

EXHIBIT A

 

FORM OF CLASS [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] NOTE

 

EACH PURCHASER AND TRANSFEREE (AND IF SUCH PURCHASER OR TRANSFEREE IS A “BENEFIT PLAN” (AS DEFINED BELOW), ITS FIDUCIARY) WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (1) IT IS NOT, AND IT IS NOT ACTING ON BEHALF OF OR USING THE ASSETS OF, AN “EMPLOYEE BENEFIT PLAN”, AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), 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 OR ANY 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 SECTION 2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA), OR ANY GOVERNMENTAL, CHURCH, NON-US, OR OTHER PLAN THAT IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (EACH, A ‘BENEFIT PLAN”) OR (2) IT’S ACQUISITION AND CONTINUED HOLDING OF THIS NOTE (OR INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”).  EACH BENEFICIAL OWNER OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.

 

ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.).

 

TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.

 

THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.  ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.  ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE INDENTURE TRUSTEE.

 

THE FAILURE TO PROVIDE THE ISSUING ENTITY AND THE INDENTURE TRUSTEE WITH THE APPLICABLE FEDERAL INCOME TAX CERTIFICATIONS (GENERALLY, AN INTERNAL REVENUE SERVICE FORM W-9 (OR SUCCESSOR APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS A “UNITED STATES PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE INTERNAL REVENUE CODE, OR AN APPROPRIATE INTERNAL REVENUE SERVICE FORM W-8 (OR SUCCESSOR APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS NOT A “UNITED STATES PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE INTERNAL REVENUE CODE) MAY RESULT IN THE IMPOSITION OF FEDERAL BACK-UP WITHHOLDING UPON PAYMENTS TO THE HOLDER IN RESPECT OF THIS` NOTE.

 

[FOR CLASS A-2A, A-2B, A‑3, A‑4, B NOTES] THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A‑1 NOTES [THE CLASS A-2A NOTES, THE CLASS A-2B NOTES] [THE CLASS A‑3 NOTES] [THE CLASS A-4 NOTES] AS DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.]

 

REGISTERED	$___________
No. R-______	CUSIP NO. ___________

 

 

MERCEDES-BENZ AUTO LEASE TRUST 201_-[__]
[_____%][floating rate] CLASS [A‑1] [A-2A][A-2B] [A-3] [A‑4][B] ASSET BACKED NOTE

 

Mercedes-Benz Auto Lease Trust 201_-[__], a statutory trust organized and existing under the laws of the State of Delaware (including any permitted successors and assigns, the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the principal sum of ___________________ DOLLARS ($___________), payable on each Payment Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is $___________  [Denomination of Note] and the denominator of which is $___________ [Initial Note Balance of Class] by (ii) the aggregate amount in respect of principal of the Class [A‑1] [A-2A][A-2B] [A-3] [A‑4] [B] Notes, if any, payable to the extent described in the Indenture referred to on the reverse hereof on each Payment Date; provided, however, that the entire unpaid principal amount of this Note shall be payable on the earlier of _______________, 20__ (the “Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Final Scheduled Payment Date”) and the Redemption Date, if any, selected pursuant to the Indenture.  Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Indenture, which also contains rules as to construction that shall be applicable herein.

 

The Issuer will pay interest on this Note at the rate per annum shown above on each Payment Date (to the extent that such rate does not exceed the maximum rate permitted by Applicable Law) until the principal of this Note is paid or made available for payment, on the

principal amount of this Note outstanding on the preceding Payment Date (after giving effect to all payments of principal made on such preceding Payment Date), or on the Closing Date in the case of the first Payment Date or if no interest has yet been paid, subject to certain limitations contained in the Indenture.  Interest on this Note will accrue for each Payment Date from, and including, [For Class A‑1 and any floating rate classes: the most recent Payment Date on which interest has been paid (or, in the case of the first Payment Date or if no interest has yet been paid, from and including the Closing Date), to but excluding such current Payment Date.  Interest will be computed on the basis of the actual number of days during the related Interest Period divided by 360.]  [For fixed rate Class A-2A, Class A‑3 and Class A‑4 Notes: the 15^th day of the prior calendar month (or, in the case of the first Payment Data or if no interest has yet been paid, from and including the Closing Date), to but excluding the 15^th day of the current calendar month.  Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.]  The Issuer shall pay interest on overdue installments of interest at the interest rate otherwise applicable thereto to the extent lawful.  Such principal and interest on this Note shall be paid in the manner specified on the reverse hereof.

 

The principal of and interest on this Note are payable in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts.  All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.

 

Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual or facsimile signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

 

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by an Authorized Officer, as of the date set forth below.

 

Date:  [____] __, 201[__]	MERCEDES-BENZ AUTO LEASE TRUST 201_-[__]
	By:	[_______________], not in its individual capacity but solely as Owner Trustee
	By:
		Authorized Signatory

 

 

INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Notes designated above and referred to in the within-mentioned Indenture.

 

Date:  [____]__, 201[__]	[_______________], not in its individual capacity but solely as Indenture Trustee
	By:
		Authorized Signatory

 

 

 

[REVERSE OF CLASS [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] NOTE]

 

This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [[_____%][floating rate]] Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Asset Backed Notes (the “Class [___] Notes”), all issued under the Indenture, dated as of [_______________] (the “Indenture”), between the Issuer and [_______________], as trustee (the “Indenture Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.  The Notes are subject to all terms of the Indenture.  All terms used in this Note are defined in Appendix 1 to the 201_-[__] Servicing Supplement and if not defined therein, in Appendix A to the Basic Collateral Agency Agreement.

 

The Class A‑1 Notes, the Class A-2A Notes, the Class A-2B, the Class A‑3 Notes, the Class A‑4 Notes [and the Class B Notes] (collectively, the “Notes”) are, except as otherwise provided in the Indenture, equally and ratably secured by the 201_-[__] Collateral pledged as security therefor as provided in the Indenture.  However, to the extent provided in the Indenture, each Class of Notes will receive principal payment sequentially so no principal payments shall be made in respect of the Class A-2A Notes and the Class A-2B Notes until the Class A-1 Notes have been paid in full, no principal payments shall be made in respect of the Class A-3 Notes until the Class A-1 Notes, the Class A-2A Notes and the Class A-2B Notes have been paid in full, no principal payments shall be made in respect of the Class A-4 Notes until the Class A-1 Notes, the Class A-2A Notes, the Class A-2B Notes and the Class A-3 Notes have been paid in full [and no principal payments shall be made in respect of the Class B Notes until the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes have been paid in full].

 

Principal payable on the Class [A‑1] [A-2A][A-2B] [A‑3] [A-4][B] Notes will be paid on each Payment Date in the amount specified in the Indenture.  As described above, the entire unpaid principal amount of this Note will be payable on the earlier of the Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Final Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the Indenture.  Notwithstanding the foregoing, under certain circumstances, the entire unpaid principal amount of the Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Notes shall be due and payable following the occurrence and continuance of an Event of Default, if the Indenture Trustee or the Majority Noteholders of Notes of the Controlling Class have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture.  In such an event, principal payments on the Class A-1 Notes shall be made first and until paid in full and principal payments on the remaining Classes of Notes shall be made pro rata to the Noteholders entitled thereto.  All principal payments on the Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Notes shall be made pro rata to the Class [A‑1] [A-2A][A-2B] [A‑3] [A‑4][B] Noteholders entitled thereto.

 

Payments of principal and interest on this Note due and payable on each Payment Date or Redemption Date shall be made by check mailed to the Person whose name appears as the registered Noteholder (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Record Date, except that with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee.  Such checks shall be mailed to the Person entitled thereto at the

address of such Person as it appears on the Note Register as of the applicable Record Date without requiring that this Note be submitted for notation of payment.  Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Payment Date or Redemption Date shall be binding upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.  If funds are expected to be available, as provided in the Indenture, for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the registered Noteholder as of the Record Date preceding such Payment Date or Redemption Date by notice mailed within 30 days of such Payment Date or Redemption Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Indenture Trustee or at the office of the Indenture Trustee’s agent appointed for such purposes located in The City of New York.

 

As provided in the Indenture, the Notes may be redeemed, in whole but not in part, in the manner and to the extent described in the Indenture, the 201_-[__] Servicing Agreement and the Trust Agreement.

 

As provided in the Indenture and subject to the limitations set forth therein and on the face hereof, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee duly executed by, the Noteholder or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, all in accordance with the Exchange Act, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees.  No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.

 

Each Noteholder or Note Owner, by acceptance of a Note or a beneficial interest therein, as the case may be, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee, each in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee, each in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by Applicable Law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.

 

The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Titling Trust, the Transferor, the Initial Beneficiary, the Servicer or any of their respective Affiliates.

 

Any claim pursuant to any Note issued hereunder against the Titling Trust will be limited in recourse to the assets of the Daimler Retail Specified Interest that are designated as part of the 201_-[__] Reference Pool.  If, notwithstanding the preceding sentence, any Noteholder or any other Person having a claim under the Indenture will be deemed to have any claim against any Specified Interest of the Initial Beneficiary other than the Daimler Retail Specified Interest, or any assets allocated to any such other Specified Interest, such claim will be subordinate to the payment in full, including post-petition interest, of the claims of (i) the holders of any Securities relating to such other Specified Interest and (ii) parties to any undertaking, agreement, contract or other written obligation of the Holders of the Series relating to such other Specified Interest, the payments under which are derived in any material part from or collateralized by amounts received with respect to the related Specified Assets of such other Specified Interest.

 

Each Noteholder, by accepting a Note, irrevocably makes the election afforded to secured creditors by Section 1111(b)(1)(A)(i) of the Bankruptcy Code to receive the treatment afforded by Section 1111(b)(2) of the Bankruptcy Code with respect to any secured claim that the Noteholder may have at any time against the Titling Trust or any Series other than the Series in connection with which this Note was issued.

 

Each Noteholder or Note Owner, by accepting a Note or a beneficial interest therein, covenants and agrees that for a period of one year and one day (or, if longer, any applicable preference period) after payment in full of all outstanding Notes, it will not institute against the Titling Trust, the Transferor, the Issuer or the Initial Beneficiary, or join in any institution against the Titling Trust, the Transferor, the Issuer or the Initial Beneficiary of any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceedings or other Proceedings under any Insolvency Law in connection with any obligations relating to the Notes or any 201_-[__] Basic Document.

 

Each Noteholder or holder of an interest in a Note, by acceptance of such Note or such interest therein, agrees to provide to the Indenture Trustee, any Note Paying Agent or the Issuer, upon its request, the Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is applicable, the Noteholder FATCA Information.  In addition, each Noteholder or holder of an interest in a Note, by acceptance of such Note or such interest therein, agrees that the Indenture Trustee has the right to withhold any amounts of interest (properly withholdable under law and without any corresponding gross-up) payable to a Noteholder or holder of an interest in a Note that fails to comply with the requirements of the preceding sentence.

 

The Issuer has entered into the Indenture and this Note is issued with the intention that, for federal, State and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Trust Estate.  Each Noteholder, by acceptance of a Note, agrees to treat the Notes for federal, State and local income, single business and franchise tax purposes as indebtedness.

 

Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and none of the Issuer, the Indenture Trustee or any such agent shall be affected by notice to the contrary.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Noteholders under the Indenture at any time by the Issuer with the consent of Noteholders representing not less than a majority of the Outstanding Amount of the Controlling Class.  The Indenture also contains provisions permitting Noteholders representing specified percentages of the Note Balance of the Controlling Class, on behalf of all Noteholders, to waive compliance by the Issuer with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences.  Any such consent or waiver by the Noteholder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.  The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.

 

This Note, or any interest therein, may not be transferred to a person that is or is acting on behalf of, or using the assets of, a Benefit Plan, unless such transferee represents, warrants and covenants that its purchase and holding of this note will not give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or result in a non-exempt violation of any Similar Law.  By its acquisition of this Note in book-entry form or any interest therein, each transferee will be deemed to have represented, warranted and covenanted that it satisfies the foregoing requirements and the Indenture Trustee may relay conclusively on the same for purposes hereof.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Noteholders under the Indenture at any time by the Issuer with the consent of the Majority Noteholders Holders of the Controlling Class.  The Indenture also contains provisions permitting the Noteholders representing specified percentages of the Note Balance of the Controlling Class, on behalf of all Noteholders, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.  Any such consent or waiver by the Noteholder of this Note (or any one of more Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.  The Indenture also permits the Issuer and the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders.

 

The Indenture permits the Issuer, under certain circumstances, to consolidate or merge with or into another Person, subject to the rights of the Indenture Trustee and the Noteholders under the Indenture.

 

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

 

THIS NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed.

 

Anything herein to the contrary notwithstanding, except as expressly provided in the 201_-[__] Basic Documents, none of [_______________], in its individual capacity, [_______________], in its individual capacity, any owner of a beneficial interest in the Issuer or any of their respective partners, beneficiaries, agents, officers, directors, employees or successors or assigns shall be personally liable for, nor shall recourse be had to any of them for, the payment of principal of or interest on this Note or performance of, or omission to perform, any of the covenants, obligations or indemnifications contained in the Indenture.  The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the 201_-[__] Basic Documents, in the case of an Event of Default the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note.

 

 

 

ASSIGNMENT

 

Social Security or taxpayer I.D. or other identifying number of assignee:

 

                                                                                                                                                                                        

---

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

 

                                                                                                                                                                                        

---

(name and address of assignee)

 

the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints

 

                                                                                                                                                                                        

---

attorney, to transfer said Note on the books kept for registration thereof, 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 Note in every particular, without alteration, enlargement or any change whatsoever.  Such signature must be guaranteed by an “eligible guarantor institution” meeting the require-ments of the Note Registrar.

 

EXHIBIT B

 

ASSET REPURCHASE DEMAND ACTIVITY REPORT

 

Reporting Period:  [calendar month]

  Check here if nothing to report.

 

¹ Forward any applicable information or documentation relating to any reputed demands to the Servicer. See Item 11 in the ASF Rule 15Ga-1 Market Implementation Guide for a discussion of what constitutes activity.

² See Item 23 in the ASF Rule 15Ga-1 Market Implementation Guide for a discussion of “demands.”

EXHIBIT C

 

PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS

 

In addition to the representations, warranties and covenants contained in the Indenture, dated as of [_______________] (the “Indenture”), between Mercedes-Benz Auto Lease Trust 201_-[__], as issuer (the “Issuer”), and [_______________], as trustee (the “Indenture Trustee”), the Issuer hereby further represents, warrants and covenants to the Indenture Trustee as follows on the 201_-[__] Closing Date:

 

1.

The Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the 201_-[__] Collateral in favor of the Indenture Trustee, which security interest is prior to all other Liens and is enforceable as such as against creditors of and purchasers from the Issuer.

 

2.

The 201_-[__] Exchange Note constitutes a “general intangible”, “instrument”, “certificated security” or “tangible chattel paper”, within the meaning of the applicable UCC.  The 201_-[__] Bank Accounts and all subaccounts thereof constitute either “deposit accounts” or “securities accounts” within the meaning of the applicable UCC.

 

3.

All of the 201_-[__] Collateral that constitutes securities entitlements (other than the 201_-[__] Exchange Note to the extent the 201_-[__] Exchange Note constitutes a certificated security) has been or will have been credited to one of the 201_-[__] Bank Accounts.  The securities intermediary for each 201_-[__] Account has agreed to treat all assets credited to the 201_-[__] Accounts as “financial assets” within the meaning of the applicable UCC.

 

4.

The Issuer owns and has good and marketable title to the 201_-[__] Collateral free and clear of any Liens, claim or encumbrance of any Person, excepting only liens for taxes, assessments or similar governmental charges or levies incurred in the ordinary course of business that are not yet due and payable or as to which any applicable grace period shall not have expired, or that are being contested in good faith by proper proceedings and for which adequate reserves have been established, but only so long as foreclosure with respect to such a Lien is not imminent and the use and value of the property to which the Lien attaches is not impaired during the pendency of such proceeding.

 

5.

The Issuer has received all consents and approvals to the grant of the security interest in the 201_-[__] Collateral under the Indenture to the Indenture Trustee required by the terms of the 201_-[__] Collateral to the extent that it constitutes an instrument or a payment intangible.

 

6.

The Issuer has received all consents and approvals required by the terms of the 201_-[__] Collateral, to the extent that it constitutes a securities entitlement, certificated security or uncertificated security, to the transfer to the Indenture Trustee of its interest and rights in the 201_-[__] Collateral under the Indenture.

 

7.

The Issuer has caused or will have caused, within ten days after the 201_-[__] Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the 201_-[__] Collateral granted to the Indenture Trustee under the Indenture.

 

8.

With respect to 201_-[__] Collateral that constitutes an instrument or tangible chattel paper, either:

 

a.

all original executed copies of each such instrument or tangible chattel paper have been delivered to the Indenture Trustee;

 

b.

such instruments or tangible chattel paper are in the possession of a custodian and the Indenture Trustee has received a written acknowledgment from such custodian that such custodian is holding such instruments or tangible chattel paper solely on behalf and for the benefit of the Indenture Trustee; or

 

c.

a custodian received possession of such instruments or tangible chattel paper after the Indenture Trustee received a written acknowledgment from such custodian that such custodian is acting solely as agent of the Indenture Trustee.

 

9.

With respect to the 201_-[__] Bank Accounts and all subaccounts thereof that constitute deposit accounts, either:

 

a.

the Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the bank maintaining the deposit accounts has agreed to comply with all instructions originated by the Indenture Trustee directing disposition of the funds in the 201_-[__] Bank Accounts without further consent by the Issuer; or

 

b.

the Issuer has taken all steps necessary to cause the Indenture Trustee to become the account holder of the 201_-[__] Bank Accounts.

 

10.

With respect to 201_-[__] Collateral or 201_-[__] Bank Accounts or subaccounts thereof that constitute securities accounts or securities entitlements, either:

 

a.

the Issuer has caused or will have caused, within ten days after the 201_-[__] Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted in the 201_-[__] Collateral to the Indenture Trustee;

 

b.

the Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the securities intermediary has agreed to comply with all instructions originated by the Indenture Trustee relating to the 201_-[__] Bank Accounts without further consent by the Issuer; or

 

c.

the Issuer has taken all steps necessary to cause the securities intermediary to identify in its records the Indenture Trustee as the person having a security entitlement against the securities intermediary in the 201_-[__] Bank Accounts.

 

11.

With respect to 201_-[__] Collateral that constitutes certificated securities (other than securities entitlements), all original executed copies of each security certificate that constitutes or evidences the 201_-[__] Collateral have been delivered to the Indenture Trustee, and each such security certificate either (i) is in bearer form, (ii) has been endorsed by an effective endorsement to the Indenture Trustee or in blank or (iii) has been registered in the name of the Indenture Trustee.

 

12.

Other than the transfer of any 201_-[__] Collateral from Mercedes-Benz Financial Services USA LLC to Daimler Trust Leasing LLC under the First-Tier Sale Agreement, the transfer of any 201_-[__] Collateral from Daimler Trust Leasing LLC to the Issuer under the Second-Tier Sale Agreement, and the security interest in the 201_-[__] Collateral granted to the Indenture Trustee under the Indenture, none of Mercedes-Benz Financial Services USA LLC, Daimler Trust Leasing LLC or the Issuer has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the 201_-[__] Collateral or the 201_-[__] Accounts or any subaccount thereof.

 

13.

The Issuer has not authorized the filing of, nor is aware of, any financing statements against the Issuer that include a description of collateral covering the 201_-[__] Collateral or the 201_-[__] Bank Accounts or any subaccount thereof other than any financing statement relating to any security interest granted pursuant to the 201_-[__] Basic Documents or that has been terminated.

 

14.

No instrument or tangible chattel paper that constitutes or evidences the 201_-[__] Collateral has any marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee.

 

15.

Neither the 201_-[__] Bank Accounts nor any subaccounts thereof are in the name of any person other than the Issuer or the Indenture Trustee.  The Issuer has not consented to the securities intermediary of any 201_-[__] Bank Account to comply with entitlement orders of any person other than the Indenture Trustee.

 

Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Indenture.