EXHIBIT 10.7
VOLKSWAGEN AUTO LEASE TRUST 2004-A
AMENDED AND RESTATED TRUST AGREEMENT
BETWEEN
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
AS THE DEPOSITOR
AND
THE BANK OF NEW YORK (DELAWARE),
AS THE OWNER TRUSTEE
DATED AS OF SEPTEMBER 29, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................................... 1
SECTION 1.1. Capitalized Terms....................................................... 1
SECTION 1.2. Other Interpretive Provisions........................................... 1
ARTICLE II ORGANIZATION.................................................................... 1
SECTION 2.1. Name.................................................................... 1
SECTION 2.2. Office.................................................................. 2
SECTION 2.3. Purposes and Powers..................................................... 2
SECTION 2.4. Appointment of the Owner Trustee........................................ 2
SECTION 2.5. Initial Capital Contribution of Trust Estate............................ 2
SECTION 2.6. Declaration of Trust.................................................... 2
SECTION 2.7. Organizational Expenses; Liabilities of the Holders..................... 3
SECTION 2.8. Title to the Trust Estate............................................... 3
SECTION 2.9. Representations and Warranties of the Transferor........................ 3
SECTION 2.10. Situs of Issuer......................................................... 4
ARTICLE III CERTIFICATE AND TRANSFER OF CERTIFICATE........................................ 4
SECTION 3.1. Initial Ownership....................................................... 4
SECTION 3.2. Authentication of Certificate........................................... 5
SECTION 3.3. Form of the Certificate................................................. 5
SECTION 3.4. Registration of Certificates............................................ 5
SECTION 3.5. Transfer of Certificate................................................. 5
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates....................... 6
ARTICLE IV ACTIONS BY OWNER TRUSTEE........................................................ 6
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain Matters....... 6
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters............. 7
SECTION 4.3. Action by Certificateholder with Respect to Bankruptcy.................. 7
SECTION 4.4. Restrictions on Certificateholder's Power............................... 7
SECTION 4.5. Majority Control........................................................ 7
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES....................................... 8
SECTION 5.1. Application of Trust Funds.............................................. 8
SECTION 5.2. Method of Payment....................................................... 8
SECTION 5.3. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act...................................................... 8
SECTION 5.4. Signature on Returns.................................................... 8
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE........................................... 8
SECTION 6.1. General Authority....................................................... 8
SECTION 6.2. General Duties.......................................................... 9
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PAGE
SECTION 6.3. Action upon Instruction................................................. 9
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions...... 10
SECTION 6.5. No Action Except under Specified Documents or Instructions.............. 10
SECTION 6.6. Restrictions............................................................ 10
ARTICLE VII CONCERNING OWNER TRUSTEE....................................................... 10
SECTION 7.1. Acceptance of Trusts and Duties......................................... 10
SECTION 7.2. Furnishing of Documents................................................. 11
SECTION 7.3. Representations and Warranties.......................................... 11
SECTION 7.4. Reliance; Advice of Counsel............................................. 11
SECTION 7.5. Not Acting in Individual Capacity....................................... 12
SECTION 7.6. The Owner Trustee May Own Notes......................................... 12
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE................................................. 12
SECTION 8.1. The Owner Trustee's Fees and Expenses................................... 12
SECTION 8.2. Indemnification......................................................... 13
SECTION 8.3. Payments to the Owner Trustee........................................... 13
ARTICLE IX TERMINATION OF TRUST AGREEMENT.................................................. 13
SECTION 9.1. Termination of Trust Agreement.......................................... 13
SECTION 9.2. Dissolution of the Issuer............................................... 13
SECTION 9.3. Limitations on Termination.............................................. 14
SECTION 9.4. Purchase of the Transaction SUBI Certificate........................... 14
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES........................... 14
SECTION 10.1. Eligibility Requirements for the Owner Trustee.......................... 14
SECTION 10.2. Resignation or Removal of the Owner Trustee............................. 14
SECTION 10.3. Successor Owner Trustee................................................. 15
SECTION 10.4. Merger or Consolidation of the Owner Trustee............................ 16
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee........................... 16
ARTICLE XI MISCELLANEOUS................................................................... 17
SECTION 11.1. Supplements and Amendments.............................................. 17
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder..................... 18
SECTION 11.3. Limitations on Rights of Others......................................... 18
SECTION 11.4. Notices................................................................. 19
SECTION 11.5. Severability............................................................ 19
SECTION 11.6. Separate Counterparts................................................... 19
SECTION 11.7. Successors and Assigns.................................................. 19
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(continued)
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SECTION 11.8. No Petition............................................................. 19
SECTION 11.9. Headings................................................................ 20
SECTION 11.10. GOVERNING LAW........................................................... 20
SECTION 11.11. Each SUBI Separate; Assignees of SUBI................................... 20
SECTION 11.12. Waiver of Jury Trial.................................................... 21
SECTION 11.13. Information Requests.................................................... 21
EXHIBIT A - Form of Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT is made as of September 29, 2004
(as from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement") between VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, a
Delaware limited liability company, as the depositor (the "Transferor"), and THE
BANK OF NEW YORK (DELAWARE), a Delaware banking corporation, as the owner
trustee (the "Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Unless otherwise indicated, capitalized
terms used in this Agreement are defined in Appendix A to the Indenture, dated
as of the date hereof (as the same may be amended, modified or supplemented from
time to time, the "Indenture"), between the Issuer (as defined below) and
Citibank, N.A., as indenture trustee.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created under that certain Trust Agreement
dated as of September 3, 2004 and by the filing of the certificate of trust
pursuant to the Statutory Trust Act and continued hereby shall be known as
"Volkswagen Auto Lease Trust 2004-A" (the "Issuer"), in which name the Owner
Trustee may conduct the business of such trust, make and execute contracts and
other instruments on behalf of such trust and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the
Owner Trustee at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at
such other address as the Owner Trustee may designate by written notice to the
Certificateholder, the Transferor and the Administrator.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell, transfer and exchange the Notes
and the Certificate and to pay interest on and principal of the Notes and
distributions on the Certificate;
(b) to acquire the property and assets set forth in the SUBI
Transfer Agreement from the Transferor pursuant to the terms thereof, to
make deposits to and withdrawals from the Collection Account, the Reserve
Account and the Swap Termination Payment Account and to pay the
organizational, start-up and transactional expenses of the Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the Certificateholder any portion of the Trust Estate released from the
lien of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction
Documents to which it is a party;
(e) to engage in other activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Transaction Documents, to engage
in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Certificateholder and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Issuer. Neither the Issuer nor the Owner Trustee on behalf of the
Issuer shall engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement, the
other Transaction Documents or the Statutory Trust Act.
SECTION 2.4. Appointment of the Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein and under the
Statutory Trust Act.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Owner
Trustee hereby acknowledges receipt in trust from the Transferor the sum of $1,
which shall constitute the initial Trust Estate and shall be deposited by the
Transferor in the Collection Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and
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benefit of the Certificateholder, subject to the obligations of the Issuer under
the Transaction Documents and under the Statutory Trust Act. It is the intention
of the parties hereto that the Issuer constitute a statutory trust under the
Statutory Trust Act and that this Agreement constitute the governing instrument
of such statutory trust. It is the intention of the parties hereto that, solely
for income and franchise tax purposes, the Issuer will be disregarded as an
entity separate from the Transferor, the Transferor will be disregarded as an
entity separate from VCI and the Notes will be characterized as debt. The
parties agree that, unless otherwise required by appropriate tax authorities,
the Issuer will not file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Issuer as an
entity separate from its owner. In the event that the Issuer is deemed to have
more than one beneficial owner for federal income tax purposes, the Issuer will
file returns, reports and other forms consistent with the characterization of
the Issuer as a partnership, and this Agreement shall be amended to include such
provisions as may be required under Subchapter K of the Internal Revenue Code of
1986, as amended. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Statutory Trust Act
with respect to accomplishing the purposes of the Issuer. The Owner Trustee
shall file the Certificate of Trust with the Secretary of State of the State of
Delaware as required by Section 3810(a) of the Statutory Trust Act.
Notwithstanding anything herein or in the Statutory Trust Act to the contrary,
it is the intention of the parties hereto that the Issuer constitute a "business
trust" within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Administrator shall pay organizational expenses of the
Issuer as they may arise.
(b) No Certificateholder (including the Transferor) shall have any
personal liability for any liability or obligation of the Issuer.
SECTION 2.8. Title to the Trust Estate. Legal title to all the Trust
Estate shall be vested at all times in the Issuer as a separate legal entity,
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Owner Trustee that, as of the
date hereof:
(a) Organization and Power. The Transferor is a limited liability
company duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all power and authority required to
carry on its business as it is now conducted. The Transferor has obtained
all necessary licenses and approvals in all jurisdictions where the
failure to do so would materially and adversely affect the business,
properties, financial condition or results of operations of the
Transferor, taken as a whole.
(b) Authorization and No Contravention. The execution, delivery and
performance by the Transferor of each Transaction Document to which it is
a party (i)
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have been duly authorized by all necessary limited liability company
action and (ii) do not violate or constitute a default under (A) any
applicable law, rule or regulation, (B) its organizational instruments or
(C) any agreement, contract, order or other instrument to which it is a
party or its property is subject and (iii) will not result in any Adverse
Claim on any Transaction Unit or Collection or give cause for the
acceleration of any indebtedness of the Transferor.
(c) No Consent Required. No approval, authorization or other action
by, or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Transferor of any
Transaction Document other than UCC filings and other than approvals and
authorizations that have previously been obtained and filings which have
previously been made.
(d) Binding Effect. Each Transaction Document to which the
Transferor is a party constitutes the legal, valid and binding obligation
of the Transferor enforceable against the Transferor in accordance with
its terms, except as limited by bankruptcy, insolvency, or other similar
laws of general application relating to or affecting the enforcement of
creditors' rights generally and subject to general principles of equity.
(e) No Proceedings. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Transferor, threatened
against the Transferor which, either in any one instance or in the
aggregate, would result in any material adverse change in the business,
operations, financial condition, properties or assets of the Transferor,
or in any material impairment of the right or ability of the Transferor to
carry on its business substantially as now conducted, or in any material
liability on the part of the Transferor, or which would render invalid
this Agreement or the Transaction Units or the obligations of the
Transferor contemplated herein, or which would materially impair the
ability of the Transferor to perform under the terms of this Agreement or
any other Transaction Document.
SECTION 2.10. Situs of Issuer. The Issuer shall be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in the State of Delaware or the
State of New York. The Issuer shall not have any employees in any state;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Issuer only in Delaware or the State of New York and
payments will be made by the Issuer only from Delaware or the State of New York.
ARTICLE III
CERTIFICATE AND TRANSFER OF CERTIFICATE
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer and until
the issuance of the Certificate, the Transferor shall be the sole beneficiary of
the Issuer; and upon the issuance of the Certificate, the Transferor will no
longer be a beneficiary of the Issuer, except to the extent that the Transferor
is the Certificateholder.
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SECTION 3.2. Authentication of Certificate. Concurrently with the sale of
the Transaction SUBI Certificate to the Issuer pursuant to the SUBI Transfer
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Issuer, authenticated and delivered to or upon the written order
of the Transferor, signed by its chairman of the board, its president, its chief
financial officer, its chief accounting officer, any vice president, its
secretary, any assistant secretary, its treasurer or any assistant treasurer,
without further corporate action by the Transferor. The Certificate shall
represent 100% of the beneficial interest in the Issuer and shall be fully-paid
and non assessable.
SECTION 3.3. Form of the Certificate. The Certificate, upon original
issuance, will be issued in the form of a typewritten Certificate representing a
definitive Certificate and shall be registered in the name of "Volkswagen Auto
Lease Underwritten Funding, LLC" as the initial registered owner thereof. The
Owner Trustee shall execute and authenticate, or cause to be authenticated, the
definitive Certificate in accordance with the instructions of the Transferor.
SECTION 3.4. Registration of Certificates. The Owner Trustee shall
maintain at its office referred to in Section 2.2, or at the office of any agent
appointed by it, a register for the registration and transfer of the
Certificate.
SECTION 3.5. Transfer of Certificate. (a) The Certificateholder may
assign, convey or otherwise transfer all or any of its right, title and interest
in the Certificate; provided, that (i) the Rating Agency Condition is satisfied,
(ii) the Certificateholder provides, at its expense, to the Owner Trustee and
the Issuer an Opinion of Counsel stating that, in the opinion of such counsel,
such transfer will not cause the Issuer to be treated as a publicly traded
partnership for federal income tax purposes, and (iii) the Certificate (or any
interest therein) may not be acquired by or for the account of or with the
assets of a Benefit Plan. By accepting and holding the Certificate (or any
interest therein), the holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing the Certificate
(or any interest therein) on behalf of a Benefit Plan. Subject to the transfer
restrictions contained herein and in the Certificate, the Certificateholder may
transfer all or any portion of the beneficial interest in the Issuer evidenced
by such Certificate upon surrender thereof to the Owner Trustee accompanied by
the documents required by this Section. Such transfer may be made by the
registered Certificateholder in person or by his attorney duly authorized in
writing upon surrender of the Certificate to the Owner Trustee accompanied by a
written instrument of transfer and with such signature guarantees and evidence
of authority of the Persons signing the instrument of transfer as the Owner
Trustee may reasonably require. Promptly upon the receipt of such documents and
receipt by the Owner Trustee of the transferor's Certificate, the Owner Trustee
shall record the name of such transferee as a Certificateholder and its
percentage of beneficial interest in the Issuer in the Certificate register and
issue, execute and deliver to such Certificateholder a Certificate evidencing
such beneficial interest in the Issuer. In the event a transferor transfers only
a portion of its beneficial interest in the Issuer, the Owner Trustee shall
register and issue, to such transferor a new Certificate evidencing such
transferor's new percentage of beneficial interest in the issuer. Subsequent to
a transfer and upon the issuance of the new Certificate or Certificates, the
Owner Trustee shall cancel and destroy the Certificate surrendered to it in
connection with such transfer. The Owner Trustee may treat the Person in whose
name any Certificate is registered as the sole owner of the beneficial interest
in the Issuer evidenced by such Certificate.
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(a) As a condition precedent to any registration of transfer under
this Section 3.5, the Owner Trustee may require the payment of a sum
sufficient to cover the payment of any tax or taxes or other governmental
charges required to be paid in connection with such transfer.
(b) The Owner Trustee shall not be obligated to register any
transfer of a Certificate unless each of the transferor and the transferee
have certified to the Owner Trustee that such transfer does not violate
any of the transfer restrictions stated herein. The Owner Trustee shall
not be liable to any Person for registering any transfer based on such
certifications.
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates. If (i) any
mutilated Certificate is surrendered to the Owner Trustee, or (ii) the Owner
Trustee receives evidence to its satisfaction that any Certificate has been
destroyed, lost or stolen, and upon proof of ownership satisfactory to the Owner
Trustee together with such security or indemnity as may be requested by the
Owner Trustee to save it harmless, the Owner Trustee shall execute and deliver a
new Certificate for the same percentage of beneficial interest in the Issuer as
the Certificate so mutilated, destroyed, lost or stolen, of like tenor and
bearing a different issue number, with such notations, if any, as the Owner
Trustee shall determine. Upon the issuance of any new Certificate under this
Section 3.6, the Issuer or Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate and any other
reasonable expenses (including the reasonable fees and expenses of the Issuer
and the Owner Trustee) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.6 shall constitute complete and indefeasible evidence
of ownership in the Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that the
Certificateholder has withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholder;
(c) the amendment, change or modification of the SUBI Transfer
Agreement or the Administration Agreement, except to cure any ambiguity or
defect or to amend or
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supplement any provision in a manner that would not materially adversely
affect the interests of the Certificateholder; or
(d) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note Registrar
or, the Indenture Trustee of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholder, to (a) except as expressly provided in the Transaction
Documents, sell the Collateral after the termination of the Indenture in
accordance with its terms, (b) remove the Administrator under the Administration
Agreement pursuant to Section 8 thereof or (c) appoint a successor Administrator
pursuant to Section 8 of the Administration Agreement. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholder.
SECTION 4.3. Action by Certificateholder with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer until one year and one day after the
Outstanding Amount of all the Notes has been reduced to zero and without the
prior written approval of the Certificateholder and the delivery to the Owner
Trustee by the Certificateholder of a certificate certifying that the
Certificateholder reasonably believes that the Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholder's Power. The
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the
Transaction Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. To the extent that there is more than one
Certificateholder, any action which may be taken or consent or instructions
which may be given by the Certificateholders under this Agreement may be taken
by Certificateholders holding in the aggregate a percentage of the beneficial
interest in the Issuer equal to more than 50% of the beneficial interest in the
Issuer at the time of such action.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds. Distributions on the Certificate
shall be made in accordance with the provisions of the Indenture. Subject to the
lien of the Indenture, the Owner Trustee shall promptly distribute to the
Certificateholder all other amounts (if any) received by the Issuer or the Owner
Trustee in respect of the Trust Estate. After the Indenture has been discharged
with respect to the Collateral, the Owner Trustee shall distribute all amounts
received (if any) by the Issuer and the Owner Trustee in respect of the Trust
Estate at the direction of the Certificateholder.
SECTION 5.2. Method of Payment. Subject to the Indenture, distributions
required to be made to the Certificateholder on any Payment Date and all amounts
received by the Issuer or the Owner Trustee on any other date that are payable
to the Certificateholder pursuant to this Agreement or any other Transaction
Document shall be made to the Certificateholder by wire transfer, in immediately
available funds, to the account of the Certificateholder designated by the
Certificateholder to the Owner Trustee and Indenture Trustee in writing.
SECTION 5.3. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Notwithstanding anything to the contrary
herein or in any Transaction Document, the Owner Trustee shall not be required
to execute, deliver or certify in accordance with the provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act on behalf of the Trust or any other Person, any periodic
reports filed pursuant to the Exchange Act, or any other documents pursuant to
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as amended.
SECTION 5.4. Signature on Returns. Subject to Section 2.6, the
Certificateholder shall sign on behalf of the Issuer the tax returns of the
Issuer, unless applicable law requires the Owner Trustee to sign such documents,
in which case such documents shall be signed by the Owner Trustee at the written
direction of the Certificateholder.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Issuer is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Transaction Documents to which the Issuer is named as
a party and any amendment thereto, in each case, in such form as the Transferor
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof, to direct the Indenture Trustee to authenticate and deliver Class A-1
Notes in the aggregate principal amount of $321,000,000, Class A-2 Notes in the
aggregate principal amount of $437,000,000, Class A-3 Notes in the aggregate
principal amount of $326,000,000, Class A-4 Notes in the aggregate principal
amount of $416,000,000, which shall be $[__________] of Class A-4-A Notes and
$[__________] Class A-4-B Notes. In addition to the foregoing, the Owner Trustee
is authorized to take all actions required of the Issuer pursuant to the
Transaction Documents. The Owner Trustee is further authorized from time to time
to take such action as the Transferor or the Administrator recommends or directs
in writing with respect to the Transaction
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Documents, except to the extent that this Agreement expressly requires the
consent of the Certificateholder for such action.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents and to
administer the Issuer in the interest of the Certificateholder, subject to the
terms of the Transaction Documents, and in accordance with the provisions of
this Agreement and the other Transaction Documents. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Issuer or the Owner Trustee hereunder or under any
Transaction Document, and the Owner Trustee shall not be liable for the default
or failure of the Administrator to carry out its obligations under the
Administration Agreement and shall have no duty to monitor the performance of
the Administrator or any other Person under the Administration Agreement or any
other document. The Owner Trustee shall have no obligation to administer,
service or collect the Transaction Units or the Transaction SUBI or to maintain,
monitor or otherwise supervise the administration, servicing or collection of
the Transaction Units or the Transaction SUBI. The Owner Trustee shall not be
required to perform any of the obligations of the Issuer under any Transaction
Document that are required to be performed by the Servicer, the Transferor, the
Administrator or the Indenture Trustee.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Certificateholder may, by written
instruction, direct the Owner Trustee in the management of the Issuer. Such
direction may be exercised at any time by written instruction of the
Certificateholder pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Transaction Document if the Owner Trustee shall
have reasonably determined or been advised by counsel that such action is
likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Transaction Document or is
otherwise contrary to law and a copy of such opinion has been provided to
the Transferor and the Administrator.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Transaction Document or is unsure as to the application
of any provision of this Agreement or any Transaction Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or
is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholder requesting instruction
as to the course of action to be adopted or application of such provision,
and to the extent the Owner Trustee acts or refrains from acting in good
faith in accordance with any written instruction of the Certificateholder
received, the Owner Trustee shall not be liable on account of such action
or inaction to any Person. If the Owner Trustee shall not have
9
received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action, not inconsistent with
this Agreement or the Transaction Documents, as it shall deem to be in the
best interests of the Certificateholder, and shall have no liability to
any Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Issuer or the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Transaction Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Adverse Claim granted to it hereunder or to prepare or file
any Commission filing for the Issuer or to record this Agreement or any
Transaction Document. The Bank of New York (Delaware) nevertheless agrees that
it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Adverse Claims on any part of the Trust Estate that
result from actions by, or claims against, The Bank of New York (Delaware) that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Issuer set forth in Section 2.3 or
(b) that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would (i) affect the treatment of the Notes as indebtedness for federal income,
state and local income and franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or state income or franchise
tax purposes or (iii) cause the Issuer or any portion thereof to be treated as
an association or publicly traded partnership taxable as a corporation for
federal income, state and local income or franchise tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only
10
upon the terms of this Agreement. The Owner Trustee also agrees to disburse all
moneys actually received by it constituting part of the Trust Estate upon the
terms of the Transaction Documents and this Agreement. The Owner Trustee shall
not be personally liable or accountable hereunder or under any Transaction
Document under any circumstances, except (i) for its own willful misconduct, bad
faith or negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by The Bank of New York
(Delaware) in its individual capacity, (iii) for liabilities arising from the
failure of The Bank of New York (Delaware) to perform obligations expressly
undertaken by it in the last sentence of Section 6.4 or (iv) for taxes, fees or
other charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Transaction Documents.
SECTION 7.3. Representations and Warranties. The Bank of New York
(Delaware) hereby represents and warrants to the Transferor for the benefit of
the Certificateholder, that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors of
banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, or constitute any default under its charter
documents or by-laws.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may
11
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer, secretary or other Authorized Officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of
them, but the Owner Trustee shall not be personally liable for the conduct
or misconduct of such agents, custodians, nominees (including persons
acting under a power of attorney) or attorneys selected with reasonable
care and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected with reasonable
care and employed by it at the expense of the Issuer. The Owner Trustee
shall not be personally liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, The Bank of New York
(Delaware) acts solely as the Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Transaction Document
shall look only to the Trust Estate for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes. The
Owner Trustee may deal with the Transferor, the Indenture Trustee, the
Administrator and their respective Affiliates in banking transactions with the
same rights as it would have if it were not the Owner Trustee, and the
Transferor, the Indenture Trustee, the Administrator and their respective
Affiliates may maintain normal commercial banking relationships with the Owner
Trustee and its Affiliates.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. The Owner Trustee's Fees and Expenses. The Issuer shall cause
the Administrator to pay to The Bank of New York (Delaware) pursuant to the
Administration Agreement from time to time compensation for all services
rendered by The Bank of New York (Delaware) under this Agreement pursuant to a
fee letter between the Administrator and the Owner Trustee (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Administrator, pursuant to the Administration
Agreement and the fee letter between the Administrator and the Owner Trustee,
shall reimburse The Bank of New York (Delaware) upon its request for all
reasonable expenses, disbursements and advances incurred or made by The Bank of
New York (Delaware) in
12
accordance with any provision of this Agreement (including the reasonable
compensation, expenses and disbursements of such agents and counsel as The Bank
of New York (Delaware) may employ in connection with the exercise and
performance of its rights and its duties hereunder), except any such expense may
be attributable to its willful misconduct, gross negligence or bad faith.
SECTION 8.2. Indemnification. The Transferor shall cause the Administrator
to indemnify The Bank of New York (Delaware) in its individual capacity and as
trustee and its successors, assigns, directors, officers, employees and agents
(the "Indemnified Parties") from and against, any and all loss, liability,
expense, tax, penalty or claim (including reasonable legal fees and expenses) of
any kind and nature whatsoever which may at any time be imposed on, incurred by,
or asserted against The Bank of New York (Delaware) in its individual capacity
and as trustee or any Indemnified Party in any way relating to or arising out of
this Agreement, the Transaction Documents, the Trust Estate, the administration
of the Trust Estate or the action or inaction of The Bank of New York (Delaware)
hereunder; provided, however, that neither the Transferor nor the Administrator
shall be liable for or required to indemnify The Bank of New York (Delaware)
from and against any of the foregoing expenses arising or resulting from (i) its
own willful misconduct, bad faith or gross negligence, (ii) the inaccuracy of
any representation or warranty contained in Section 7.3 expressly made by The
Bank of New York (Delaware) in its individual capacity, (iii) liabilities
arising from the failure of The Bank of New York (Delaware) to perform
obligations expressly undertaken by it in the last sentence of Section 6.4 or
(iv) taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received by the Owner Trustee.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII and the Administration Agreement shall be
deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. The Issuer shall wind-up and
dissolve, and this Agreement (other than Article VIII) shall terminate, upon the
later of (a) the final distribution by the Issuer of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of the
Indenture, the Origination Trust Documents and Article V and (b) the discharge
of the Indenture in accordance with Article IV of the Indenture. The bankruptcy,
liquidation, dissolution, death or incapacity of the Certificateholder shall not
(x) operate to terminate this Agreement or the Issuer, nor (y) entitle the
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
SECTION 9.2. Dissolution of the Issuer. Upon dissolution of the Issuer,
the Administrator shall wind up the business and affairs of the Issuer as
required by Section 3808 of the Statutory Trust Act. Upon the satisfaction and
discharge of the Indenture, and receipt of a certificate from the Indenture
Trustee stating that all Noteholders have been paid in full and that
13
the Indenture Trustee is aware of no claims remaining against the Issuer in
respect of the Indenture and the Notes, the Administrator, in the absence of
actual knowledge of any other claim against the Issuer, shall be deemed to have
made reasonable provision to pay all claims and obligations (including
conditional, contingent or unmatured obligations) for purposes of Section
3808(e) of the Statutory Trust Act and upon the written direction of the
Certificateholder the Owner Trustee shall cause the Certificate of Trust to be
cancelled by filing a certificate of cancellation with the Delaware Secretary of
State in accordance with the provisions of Section 3810 of the Statutory Trust
Act, at which time the Issuer shall terminate and this Agreement (other than
Article VIII) shall be of no further force or effect.
SECTION 9.3. Limitations on Termination. Except as provided in Section
9.1, neither the Transferor nor the Certificateholder shall be entitled to
revoke or terminate the Issuer.
SECTION 9.4. Purchase of the Transaction SUBI Certificate. The Transferor
shall have the right at its option (the "Optional Purchase") to purchase the
Transaction SUBI Certificate from the Issuer on any Payment Date upon 30 days'
prior notice to the Administrator or the Issuer if, either before or after
giving effect to any payment of principal required to be made on such Payment
Date, the Outstanding Note Balance is less than or equal to 10% of the Initial
Note Balance. The purchase price for the Transaction SUBI Certificate shall
equal the Note Balance, together with accrued interest thereon up to but not
including the Redemption Date, plus all payments due to the Swap Counterparty
(the "Optional Purchase Price"), which amount shall be deposited by the
Transferor into the Collection Account on the Redemption Date. If the Transferor
exercises the Optional Purchase, the Notes shall be redeemed and in each case in
whole but not in part on the related Payment Date for the Redemption Price.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) that has, or has a direct or indirect parent that has, a combined
capital and surplus of at least $50,000,000 and (iii) subject to supervision or
examination by Federal or state authorities. If such bank shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Owner Trustee shall at all times be an institution
satisfying the provisions of Section 3807(a) of the Statutory Trust Act. In case
at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of the Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Transferor, the Administrator, the
Servicer, the Indenture Trustee and the Certificateholder. Upon receiving such
notice of resignation, the Transferor and the
14
Administrator, acting jointly, shall promptly appoint a successor Owner Trustee
which satisfies the eligibility requirements set forth in Section 10.1 by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it under the Transaction Documents until such
successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Transferor or the Administrator, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor or the Administrator may remove
the Owner Trustee. If the Transferor or the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Transferor and the Administrator, acting jointly, shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Transferor shall provide (or shall cause to be
provided) notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Transferor, the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as the
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Transferor and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
15
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Transferor shall mail (or shall cause to be mailed) notice of
the successor of such Owner Trustee to the Certificateholder, Indenture Trustee,
the Noteholders and each of the Rating Agencies. If the Transferor shall fail to
mail (or cause to be mailed) such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Transferor.
SECTION 10.4. Merger or Consolidation of the Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, be the successor of the Owner Trustee
hereunder; provided that such corporation shall be eligible pursuant to Section
10.1; and provided further that the Owner Trustee shall mail notice of such
merger or consolidation to the Transferor, the Administrator and the Rating
Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Issuer, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which
16
event such rights, powers, duties and obligations (including the holding
of title to the Issuer or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Transferor and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and
copies thereof given to the Transferor and the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a) Any term or provision of
this Agreement may be amended by the Transferor, without the consent of the
Indenture Trustee, any Noteholder, the Swap Counterparty, the Administrator, the
Issuer or the Owner Trustee; provided that (i) any amendment that materially and
adversely affects the interests of the Noteholders shall require the consent of
Noteholders evidencing not less than a majority of the aggregate outstanding
principal amount of the Outstanding Notes, voting as a single class, and (ii)
any amendment that materially and adversely affects the interests of the
Administrator, the Certificateholders, the Swap Counterparty, the Indenture
Trustee or the Owner Trustee shall require the prior written consent of the
Persons whose interests are materially and adversely affected. An amendment
shall be deemed not to materially and adversely affect the interests of the
Noteholders if the Rating Agency Condition is satisfied with respect to such
amendment. The consent of the Administrator, the Certificateholders or the Swap
Counterparty shall be deemed to have been given if the Servicer does not receive
a written objection from such Person within 10 Business Days after a written
request for such consent shall have been given.
17
(b) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Note, or delay the Final
Scheduled Payment Date of any Note without the consent of the Holder of
such Note, or (ii) reduce the percentage of the aggregate outstanding
principal amount of the Outstanding Notes, the Holders of which are
required to consent to any matter without the consent of the Holders of at
least the percentage of the aggregate outstanding principal amount of the
Outstanding Notes which were required to consent to such matter before
giving effect to such amendment.
(c) Notwithstanding anything herein to the contrary, any term or
provision of this Agreement may be amended by the parties hereto without
the consent of any of the Noteholders or any other Person to add, modify
or eliminate any provisions as may be necessary or advisable in order to
comply with or obtain more favorable treatment under or with respect to
any law or regulation or any accounting rule or principle (whether now or
in the future in effect); it being a condition to any such amendment that
the Rating Agency Condition shall have been satisfied.
(d) It shall not be necessary for the consent of any Person pursuant
to this Section for such Person to approve the particular form of any
proposed amendment, but it shall be sufficient if such Person consents to
the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, the
Transferor shall provide each Rating Agency with written notice of the
substance of such amendment. No later than 10 Business Days after the
execution of any amendment to this Agreement, the Transferor shall furnish
a copy of such amendment to each Rating Agency, the Origination Trustees,
the Owner Trustee, the Indenture Trustee and the Swap Counterparty.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an opinion of
counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder. The
Certificateholder shall not have legal title to any part of the Trust Estate.
The Certificateholder shall be entitled to receive distributions with respect to
its undivided beneficial interest therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholder to and in its ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
Administrator, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to
18
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested, if to the Owner Trustee, addressed to
its Corporate Trust Office; if to the Transferor, addressed to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer with a copy to ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the
Administrator, addressed to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer with a copy to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel; or, as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
(a) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee and its successors and the Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Certificateholder shall bind the successors and assigns of the
Certificateholder.
SECTION 11.8. No Petition. Each of the Owner Trustee (in its individual
capacity and as the Owner Trustee), by entering into this Agreement, the
Transferor, the Certificateholder, by accepting the Certificate, and the
Indenture Trustee and each Noteholder or Note Owner by accepting the benefits of
this Agreement, hereby covenants and agrees that prior to the date which is one
year and one day after payment in full of all obligations under each Financing
(i) such party shall not authorize any Bankruptcy Remote Party to commence a
voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy
Remote Party or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect in any jurisdiction or seeking the appointment of an
administrator, a trustee, receiver, liquidator, custodian or other similar
official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such
19
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against such Bankruptcy Remote
Party, or to make a general assignment for the benefit of any party hereto or
any other creditor of such Bankruptcy Remote Party, and (ii) such Person shall
not commence, join or institute against, with any other Person in, any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
SECTION 11.9. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.11. Each SUBI Separate; Assignees of SUBI. The Owner Trustee
(in its individual capacity and as the Owner Trustee), the Transferor, the
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder or Note Owner by accepting the benefits of this Agreement,
hereby intends and agrees that (a) the Transaction SUBI is a separate series of
the Origination 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., (b)(i) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Transaction SUBI or the Transaction SUBI Portfolio
shall be enforceable against the Transaction SUBI Portfolio only, and not
against any Other SUBI Assets or the UTI Portfolio and (ii) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to any Other SUBI, any Other SUBI Portfolio, the UTI or
the UTI Portfolio shall be enforceable against such Other SUBI Portfolio or the
UTI Portfolio only, as applicable, and not against the Transaction SUBI or any
Transaction SUBI Assets, (c) except to the extent required by law, UTI Assets or
SUBI Assets with respect to any SUBI (other than the Transaction SUBI) shall not
be subject to the claims, debts, liabilities, expenses or obligations arising
from or with respect to the Transaction SUBI in respect of such claim, (d)(i) no
creditor or holder of a claim relating to the Transaction SUBI or the
Transaction SUBI Portfolio shall be entitled to maintain any action against or
recover any assets allocated to the UTI or the UTI Portfolio or any Other SUBI
or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Transaction
SUBI or any SUBI Assets other than the Transaction SUBI Portfolio shall be
entitled to maintain any action against or recover any assets allocated to the
Transaction SUBI, and (e) any purchaser, assignee or pledgee of an interest in
the Transaction SUBI or the Transaction SUBI Certificate must, prior to or
contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Origination Trust a non-petition covenant
substantially similar to that set forth in Section 6.9 of the Origination Trust
Agreement, and (ii) execute an agreement for the benefit of each holder,
assignee or pledgee from time to time of the UTI or UTI Certificate and any
Other SUBI or Other SUBI Certificate, to release all claims to the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio
and in the event that such release is not given
20
effect, to fully subordinate all claims it may be deemed to have against the
assets of the Origination Trust allocated to the UTI Portfolio and each Other
SUBI Portfolio.
SECTION 11.12. Waiver of Jury Trial. To the extent permitted by applicable
law, each party hereto irrevocably waives all right of trial by jury in any
action, proceeding or counterclaim based on, or arising out of, under or in
connection with this Agreement, any other Transaction Document, or any matter
arising hereunder or thereunder.
SECTION 11.13. Information Requests. The parties hereto shall provide any
information reasonably requested by the Servicer, the Issuer, the Transferor or
any of their Affiliates at the expense of the Servicer, the Issuer, the
Transferor or any of their Affiliates, as applicable, in order to comply with or
obtain more favorable treatment under any current or future law, rule,
regulation, accounting rule or principle.
[Remainder of Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized as of the
day and year first above written.
THE BANK OF NEW YORK (DELAWARE)
By:__________________________________
Name:
Title:
S-1 Trust Agreement
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
S-2 Trust Agreement
EXHIBIT A
FORM OF CERTIFICATE
NUMBER 100% BENEFICIAL INTEREST
R-[___]
VOLKSWAGEN AUTO LEASE TRUST 2004-A
CERTIFICATE
Evidencing the 100% beneficial interest in all of the assets of the Issuer
(as defined below) which includes the Transaction SUBI (as defined below) sold
to the Issuer by the Transferor.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, VW CREDIT, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD
(IN THE INITIAL ACQUISITION OR THROUGH A TRANSFER) BY OR FOR THE ACCOUNT OF OR
WITH THE ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"))
WHETHER OR NOT SUBJECT TO ERISA, (B) A PLAN DESCRIBED IN SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (C) ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE PLAN ASSETS OF THE FOREGOING (EACH, A "BENEFIT PLAN").
THIS CERTIFIES THAT [____________________________] is the registered owner
of a 100% nonassessable, fully-paid, beneficial interest in certain
distributions of VOLKSWAGEN AUTO LEASE TRUST 2004-A (the "Issuer") formed by
Volkswagen Auto Lease Underwritten Funding, LLC, a Delaware limited liability
company, as depositor (the "Transferor").
The Issuer was created pursuant to a Trust Agreement dated as of September
3, 2004, as amended and restated as of September 29, 2004 (as further amended,
modified or supplemented from time to time, the "Trust Agreement"), between the
Transferor and The Bank of New York (Delaware), as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Indenture, dated as of
A-1
September 29, 2004 (as amended, modified or supplemented from time to time, the
"Indenture"), between the Issuer and Citibank, N.A., as indenture trustee.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which such
holder is bound. The provisions and conditions of the Trust Agreement are hereby
incorporated by reference as though set forth in their entirety herein.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture and the Trust Agreement,
as applicable.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
By accepting this Certificate, the Certificateholder hereby covenants and
agrees that prior to the date which is one year and one day after payment in
full of all obligations under each Financing (i) such Person shall not authorize
such Bankruptcy Remote Party to commence a voluntary winding-up or other
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to such Bankruptcy Remote Party or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii)
such Person shall not commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
By accepting and holding this Certificate (or any interest herein), the
holder hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing on behalf of a Benefit Plan.
It is the intention of the parties to the Trust Agreement that, solely for
income and franchise tax purposes, the Issuer will be disregarded as an entity
separate from the Transferor, the Transferor will be disregarded as an entity
separate from VCI and the Notes will be characterized as debt. By accepting this
Certificate, the Certificateholder agrees to take no action inconsistent with
the foregoing intended tax treatment.
By accepting this Certificate, the Certificateholder acknowledges that
this Certificate represents a beneficial interest in the Issuer only and does
not represent interests in or obligations
A-2
of the Transferor, the Servicer, the Administrator, the Owner Trustee, the
Indenture Trustee or any of their respective Affiliates and no recourse may be
had against such parties or their assets, except as expressly set forth or
contemplated in this Certificate, the Trust Agreement or any other Transaction
Document.
The Certificateholder hereby intends and agrees that (a) the Transaction
SUBI is a separate series of the Origination 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., (b)(i) the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to the Transaction SUBI or the
Transaction SUBI Portfolio shall be enforceable against the Transaction SUBI
Portfolio only, and not against any Other SUBI Assets or the UTI Portfolio and
(ii) the debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to any Other SUBI, any Other SUBI Portfolio,
the UTI or the UTI Portfolio shall be enforceable against such Other SUBI
Portfolio or the UTI Portfolio only, as applicable, and not against the
Transaction SUBI or any Transaction SUBI Assets, (c) except to the extent
required by law, UTI Assets or SUBI Assets with respect to any SUBI (other than
the Transaction SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Transaction SUBI in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Transaction SUBI or the Transaction SUBI Portfolio shall be entitled to maintain
any action against or recover any assets allocated to the UTI or the UTI
Portfolio or any Other SUBI or the assets allocated thereto, and (ii) no
creditor or holder of a claim relating to the UTI, the UTI Portfolio or any SUBI
other than the Transaction SUBI or any SUBI Assets other than the Transaction
SUBI Portfolio shall be entitled to maintain any action against or recover any
assets allocated to the Transaction SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Transaction SUBI or the Transaction SUBI
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any Other SUBI or Other SUBI Certificate, to release all claims to the
assets of the Origination Trust allocated to the UTI and each Other SUBI
Portfolio 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
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
A-3
IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
VOLKSWAGEN AUTO LEASE TRUST 2004-A
BY: THE BANK OF NEW YORK
(DELAWARE), not in its individual
capacity, but solely as the Owner Trustee
Dated: _________________________________
By: ____________________________________
A-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
THE BANK OF NEW YORK (DELAWARE), as
the Owner Trustee
By: ____________________________________
Authenticating Agent
By: ____________________________________
Authorized Signatory
A-5