EXHIBIT 10.5
EXECUTION COPY
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TRUST AGREEMENT
BY AND BETWEEN
VW CREDIT, INC.,
AS SETTLOR AND INITIAL BENEFICIARY,
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS UTI TRUSTEE AND ADMINISTRATIVE TRUSTEE,
AND
WILMINGTON TRUST COMPANY,
AS DELAWARE TRUSTEE
CREATING A DELAWARE BUSINESS TRUST TO BE KNOWN
AS "VW CREDIT LEASING, LTD."
DATED AS OF JUNE 2, 1999
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TABLE OF CONTENTS
PAGE
PART I CREATION OF TRUST..............................................................................1
Section 1.1. Creation of Trust.................................................................1
PART II TRUST ASSETS...................................................................................1
Section 2.1. Trust Assets......................................................................1
PART III ACCEPTANCE BY TRUSTEES.........................................................................3
Section 3.1. Acceptance by Trustees............................................................3
PART IV BENEFICIAL INTERESTS IN TRUST..................................................................4
Section 4.1. Undivided Trust Interest..........................................................4
Section 4.2. Special Units of Beneficial Interest..............................................5
Section 4.3. Form of Certificate; Registration of Certificates.................................6
Section 4.4. Mutilated, Destroyed, Lost or Stolen Certificates.................................7
Section 4.5. Retitling of Leased Vehicles......................................................8
PART V DUTIES AND POWERS OF TRUST AND TRUSTEES; TRUSTEE LIABILITY.....................................8
Section 5.1. Duties and Powers of Trustees; Limitations on Trust Activity......................8
Section 5.2. Duty of Care.....................................................................10
Section 5.3. Certain Matters Affecting the Trustees...........................................11
Section 5.4. Trustees Not Liable for Certificates or User Leases..............................13
Section 5.5. Indemnity of Trustees and Trust Agents...........................................13
Section 5.6. Trustee's Right Not to Act.......................................................14
Section 5.7. Doing Business in Other Jurisdictions............................................14
PART VI APPOINTMENT, COMPENSATION AND REMOVAL OF TRUSTEES.............................................15
Section 6.1. Appointment of Trustees..........................................................15
Section 6.2. Qualification of Trustee.........................................................15
Section 6.3. Resignation or Removal of Trustees...............................................15
Section 6.4. Successor Trustee................................................................16
Section 6.5. Merger or Consolidation of Trustees..............................................16
Section 6.6. Appointment of Co-Trustee, Separate Trustee, or Nominee..........................17
Section 6.7. Representations and Warranties of Trustees.......................................18
Section 6.8. Trustee's Fees and Expenses......................................................19
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TABLE OF CONTENTS
(continued)
PAGE
Section 6.9. No Petition......................................................................19
Section 6.10. Place of Business................................................................20
PART VII ACCOUNTS......................................................................................20
Section 7.1. Accounts; Expenses...............................................................20
Section 7.2. Rebalancing After Third-Party Claim..............................................21
PART VIII DISSOLUTION...................................................................................21
Section 8.1. Dissolution of the Trust.........................................................21
PART IX MISCELLANEOUS PROVISIONS......................................................................22
Section 9.1. Amendment........................................................................22
Section 9.2. Governing Law....................................................................22
Section 9.3. Notices..........................................................................22
Section 9.4. Severability of Provisions.......................................................23
Section 9.5. Construction.....................................................................23
Section 9.6. Separate Entity..................................................................23
EXHIBITS
EXHIBIT A Definitions
EXHIBIT B Form of Undivided Trust Certificate
EXHIBIT C Form of Certificate of Trust
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TRUST AGREEMENT
TRUST AGREEMENT, dated as of June 2, 1999 (as it may be modified,
supplemented or amended from time to time in accordance with its terms, this
"Agreement"), between VW Credit, Inc., a Delaware corporation ("VCI"), as
settlor and initial beneficiary (the "Settlor" and the "Initial Beneficiary,"
respectively), U.S. Bank Trust National Association, a national banking
association, as UTI Trustee (the "UTI Trustee") and Administrative Trustee (the
"Administrative Trustee") and Wilmington Trust Company, a Delaware banking
association, as Delaware Trustee (the "Delaware Trustee"). Certain capitalized
terms used herein are defined in Exhibit A.
WHEREAS, the Initial Beneficiary, the UTI Trustee, the Administrative
Trustee and the Delaware Trustee desire that the Trust be the nominee holder of
legal title to Trust Assets and that such acts or actions be taken as are
consistent with such nominee status;
IN CONSIDERATION of the mutual agreements herein contained, and of other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
PART I
CREATION OF TRUST
SECTION 1.1. CREATION OF TRUST.
It is the intention of the parties to form a business trust pursuant to
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq. (the
"Business Trust Statute"), and that this Agreement constitute the governing
instrument of such business trust, which shall be known as "VW Credit Leasing,
Ltd." (the "Trust"). The Settlor hereby forms the Trust and delivers to the UTI
Trustee the sum of $1.00 to have and to hold, with such other Trust Assets as
the Trust may from time to time hold, for the benefit of the holders of the
Certificates under the terms provided herein. The Delaware Trustee is hereby
authorized to file a certificate of trust under the Business Trust Statute in
the form attached hereto as Exhibit C.
PART II
TRUST ASSETS
SECTION 2.1. TRUST ASSETS.
Pursuant to this Agreement and the Servicing Agreement, the Trust shall
acquire from time to time the following assets (the "Trust Assets"):
(a) cash;
(b) lease contracts (the "User Leases") of automobiles and other vehicles,
together with all non-severable appliances, instruments, accessories,
furnishings, other equipment, additions, parts and improvements from time to
time constituting a part thereof and all
accessions thereto (the "Leased Vehicles"), which User Leases are or were
originated by VCI, a dealer (such dealers being referred to herein as "Dealers")
or directly by the Trust;
(c) Leased Vehicles and all proceeds thereof, including, without limitation
(i) the residual values of the Leased Vehicles to be realized through the
exercise by End Users of any purchase options under the User Leases, the
proceeds of sale of the Leased Vehicles to third parties, payments received from
any other Person, either directly or through a Servicer, with respect to the
residual value of the Leased Vehicles or payments under any residual value
insurance policy and (ii) each certificate of title or other evidence of
ownership of a Leased Vehicle issued by the Registrar of Titles in the
respective jurisdiction in which each such Leased Vehicle is registered (each a
"Certificate of Title"), which Certificate of Title shall reflect, as the owner
of such Leased Vehicle, "VW Credit Leasing, Ltd.", any trustee of the Trust or
such other similar designation as may be acceptable to any applicable
department, agency or official in each state responsible for accepting
applications for, and maintaining records regarding, Certificates of Title and
liens thereon (each a "Registrar of Titles");
(d) all of VCI's rights (but not its obligations) and all of the Trust's
rights, in each case with respect to any User Lease or Leased Vehicle,
including, without limitation, (i) the right to proceeds arising from all dealer
repurchase obligations, if any, relating to any User Lease or Leased Vehicle
arising under any agreements with any Dealer ("Dealer Agreements"), (ii) all
warranty and indemnity provisions contained in or to be provided pursuant to
purchase agreements that relate to any Leased Vehicle and all claims against the
applicable manufacturer or distributor and (iii) any guaranty given in
connection with any User Lease, together with all rights, powers, privileges,
licenses, easements, options and other benefits of the beneficiary of the
guaranty thereunder and any collateral given as security therefor, to the extent
pertaining to such User Lease;
(e) any insurance policy and rights thereunder or proceeds therefrom,
including, without limitation, any residual value insurance policy, any policy
of comprehensive, collision, public liability, physical damage, personal
liability, general liability, excess or umbrella liability, credit accident or
health, credit disability, credit life or unemployment insurance maintained by
the Initial Beneficiary, VCI, any End User or any Affiliate of any such Person
to the extent that any such policy covers or applies to any User Lease, Leased
Vehicle or the ability of any End User to make required payments with respect to
the related User Lease or related Leased Vehicle (collectively, "Insurance
Policies");
(f) any Security Deposit to the extent due the lessor under the related
User Lease in accordance with the terms of such User Lease; and
(g) all proceeds of any of the foregoing, including, without limitation,
all present and future claims, demands, causes of 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, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts,
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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.
PART III
ACCEPTANCE BY TRUSTEES
SECTION 3.1. ACCEPTANCE BY TRUSTEES.
(a) The UTI Trustee shall have the rights, powers and duties with respect
to the UTI set forth herein. The Initial Beneficiary hereby appoints U.S. Bank
Trust National Association as the UTI Trustee. The UTI Trustee does hereby
accept such appointment and agrees to act as a trustee of the Trust for the
benefit of the Initial Beneficiary and such other Persons as may become holders
of all or a part of the UTI, subject to the terms and conditions of this
Agreement.
(b) The Administrative Trustee shall have only such rights, powers and
duties as are specifically and expressly required by the Business Trust Statute
and this Agreement. The Administrative Trustee hereby accepts such appointment.
(c) The Delaware Trustee shall have only such rights, powers and duties as
are specifically and expressly required by the Business Trust Statute and this
Agreement. The Delaware Trustee is appointed to serve as the trustee of the
Trust in the State of Delaware for the sole purpose of satisfying the
requirement of Section 3807(a) of the Business Trust Statute that the Trust have
at least one trustee with a principal place of business in Delaware. It is
understood and agreed by the parties hereto that the Delaware Trustee shall have
none of the duties or liabilities of the other Trustees. The duties of the
Delaware Trustee shall be limited to (a) accepting legal process served on the
Trust in the State of Delaware and (b) the execution of any certificates
required to be filed with the Delaware Secretary of State which the Delaware
Trustee is required to execute under Section 3811 of the Business Trust Statute.
To the extent that, at law or in equity, the Delaware Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust, the
Certificateholders or any other person, it is hereby understood and agreed by
the other parties hereto that such duties and liabilities are limited solely to
the duties and liabilities of the Delaware Trustee expressly set forth in this
Agreement. The Delaware Trustee hereby accepts such appointment.
(d) Any SUBI Trustee shall have the rights, powers and duties set forth
herein with respect to the applicable SUBI. Any SUBI Trustee shall accept such
appointment and agree to act as a trustee of the Trust for the benefit of the
holders of all or part of the applicable SUBI, subject to the terms and
conditions of this Agreement, by execution of a counterpart to this Agreement or
other agreement acceptable to the UTI Trustee.
(e) The UTI Trustee, Administrative Trustee, Delaware Trustee and any SUBI
Trustee may be the same Person.
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PART IV
BENEFICIAL INTERESTS IN TRUST
SECTION 4.1. UNDIVIDED TRUST INTEREST.
(a) The Initial Beneficiary shall hold an exclusive, undivided beneficial
interest in all assets of the Trust (the "Undivided Trust Interest" or the
"UTI"), other than those divided, identified Trust Assets that are from time to
time allocated by the Trust, upon the written direction of the Initial
Beneficiary and otherwise in accordance with Section 4.2, into one or more
separate portfolios of Trust Assets (together with any other Trust Assets
allocated to or earned by any such portfolio(s), and any proceeds thereof,
collectively, "SUBI Assets," and all Trust Assets, other than SUBI Assets, are
the "UTI Assets").
(b) The Undivided Trust Interest initially shall be represented by a single
trust certificate (together with any replacements thereof, the "Undivided Trust
Interest Certificate" or the "UTI Certificate"); provided, however, that, at the
request of any holder thereof, the Undivided Trust Interest may be represented
by two (2) or more such certificates that, in the aggregate, represent the
entire Undivided Trust Interest, such divided certificates to be issued pursuant
to a supplement to this Agreement (each, a "UTI Supplement") which shall specify
any terms or conditions relevant to the issuance thereof, as shall be prescribed
and established by such holder and by the pledgee of any UTI Pledge. A UTI
Supplement also may specify additional terms or modify the terms of this
Agreement, but only with respect to the UTI. Except as set forth in any
applicable UTI Supplement, any Undivided Trust Interest Certificate shall be in
substantially the form of Exhibit B hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required by this Agreement,
and may have such letters, numbers or other marks of identification and such
legends and endorsements placed thereon as may, consistently herewith, be
approved by the Initial Beneficiary. Any portion of any Undivided Trust Interest
Certificate may be set forth on the reverse or subsequent pages thereof. Each
Undivided Trust Interest Certificate shall be printed, lithographed,
typewritten, mimeographed, photocopied or otherwise produced or may be produced
in any other manner as may, consistently herewith, be determined by the Initial
Beneficiary.
(c) The UTI shall be a separate series of the Trust as provided in Section
3806(b)(2) of the Business Trust Statute. Separate and distinct records shall be
maintained for the UTI and the UTI Assets shall be held and accounted for
separately from the other assets of the Trust or any SUBI. The debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the UTI or the UTI Assets shall be enforceable against
the UTI Assets only, and not against the assets of the Trust generally or
against any SUBI Assets. Except to the extent required by law or specified in
this Agreement, the Undivided Trust Interest shall not be subject to claims,
debts, liabilities, expenses or obligations arising from or with respect to any
SUBI or any Trustee. No creditor or holder of a claim relating to assets
allocated to the UTI shall be entitled to maintain any action against or recover
any assets allocated to any SUBI.
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(d) Any holder, assignee or pledgee of an Undivided Trust Interest or
Undivided Trust Interest Certificate shall be deemed, by virtue of the
acceptance of such Undivided Trust Interest, Undivided Trust Interest
Certificate, assignment or pledge, to have (i) agreed, accepted and to have
become bound by and subject to the non-petition covenant set forth in Section
6.9 and (ii) released and waived all claims against or with respect to any
assets owned by the Trustees in their respective individual capacities and all
of the Trust Assets other than the UTI Assets included from time to time within
the UTI Portfolio and proceeds therefrom and, in the event that such release is
not given effect, to fully subordinate all claims it may be deemed to have
against such released Trust Assets. Without limiting the foregoing, each holder,
assignee or pledgee of an Undivided Trust Interest or Undivided Trust Interest
Certificate shall be deemed to have released and waived all claims against or
with respect to all assets allocated to each 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 all Trust Assets allocated to each SUBI Portfolio.
SECTION 4.2. SPECIAL UNITS OF BENEFICIAL INTEREST.
(a) The UTI Trustee shall from time to time, as directed in writing by the
Initial Beneficiary, identify and allocate, or cause to be identified and
allocated, on the books and records of the Trust one or more separate portfolios
of SUBI Assets to be accounted for independently within the Trust (each such
portfolio, a "SUBI Portfolio"). Upon their allocation as SUBI Assets, such Trust
Assets shall no longer be assets of, or allocated to, the Undivided Trust
Interest (unless and until specifically reallocated to the Undivided Trust
Interest from that SUBI Portfolio pursuant to the terms hereof). The beneficial
interest in each such SUBI Portfolio shall constitute a separate "Special Unit
of Beneficial Interest" ("SUBI") in the Trust. Separate and distinct records
shall be maintained for each SUBI Portfolio and the SUBI Assets associated with
each SUBI shall be held and accounted for separately from the other assets of
the Trust or any other SUBI Assets. The Administrative Trustee shall execute and
deliver, on behalf of the Trust, to or upon the written order of the Initial
Beneficiary, one or more SUBI Certificates evidencing each SUBI, each SUBI
representing a specific divided interest in (but only in) such identified SUBI
Portfolio and the SUBI Assets allocated thereto.
(b) Each SUBI shall be represented by one or more certificates (each a
"SUBI Certificate") to be issued by the Trust and shall be created by the
execution of a supplement to this Agreement (each a "SUBI Supplement"), which
SUBI Supplement shall specify the terms and provisions pursuant to which SUBI
Certificates shall be issued with respect to such SUBI; the form of any SUBI
Certificate(s) to be issued in connection therewith; the initial SUBI Assets to
be included in such SUBI Portfolio; the arrangements, if any, whereby additional
SUBI Assets may subsequently be added to the SUBI Portfolio; the provisions
under which the proceeds of the related SUBI Assets shall be collected, invested
and distributed; and other relevant terms and provisions specific to such SUBI,
all as shall be prescribed and established by the Initial Beneficiary.
(c) Each SUBI shall be a separate series of the Trust as provided in
Section 3806(b)(2) of the Business Trust Statute. The debts, liabilities,
obligations and expenses
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incurred, contracted for or otherwise existing with respect to each SUBI or the
related SUBI Assets shall be enforceable against such SUBI Assets only, and not
against the assets of the Trust generally or against any other SUBI Assets or
the UTI Assets. Except to the extent required by law or specified in this
Agreement or in the related SUBI Supplement, SUBI Assets with respect to a
particular SUBI shall not be subject to claims, debts, liabilities, expenses or
obligations arising from or with respect to the Trust, any Trustee, the UTI or
any other SUBI. No creditor or holder of a claim relating to assets allocated to
any SUBI shall be entitled to maintain any action against or recover any assets
allocated to the UTI or any other SUBI. Notice of this limitation on interseries
liabilities and the limitation set forth in Section 4.1(c) shall be set forth in
the certificate of trust of the Trust (whether originally or by amendment) as
filed or to be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the Business Trust Statute, and upon the giving of such
notice in the certificate of trust, the statutory provisions of Section 3804 of
the Business Trust Statute relating to limitations on interseries liabilities
(and the statutory effect under Section 3804 of setting forth such notice in the
certificate of trust) shall become applicable to the Trust and each SUBI and the
UTI.
(d) Each holder of a SUBI shall appoint for such SUBI a trustee (a "SUBI
Trustee") which shall perform such duties, have such responsibilities and adhere
to such standards of care as are specified in Part V of this Agreement, but only
with respect to the SUBI for which it was appointed. The same Person may be
appointed as SUBI Trustee for all or any SUBIs.
(e) No interest in any SUBI, SUBI Certificate or SUBI Portfolio shall be
transferred, assigned, sold or conveyed if, as the result of such transfer,
assignment, sale or conveyance, the Trust would become a publicly traded
partnership for purposes of the Internal Revenue Code of 1986, as amended.
(f) Any holder, assignee or pledgee of a SUBI or SUBI Certificate shall be
deemed, by virtue of the acceptance of such SUBI, SUBI Certificate, assignment
or pledge, to have (i) agreed, accepted and to have become bound by and subject
to the non-petition covenant set forth in Section 6.9 and (ii) released and
waived all claims against or with respect to the Trust Assets allocated to the
UTI Portfolio 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 all Trust Assets allocated to the UTI Portfolio and each other SUBI
Portfolio. Nothing contained herein shall be deemed a release or waiver by any
party of any claim or right against VCI or VCI's interest in respect of such a
claim or right.
SECTION 4.3. FORM OF CERTIFICATE; REGISTRATION OF CERTIFICATES.
(a) The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Administrative Trustee.
Certificates bearing a manual or facsimile signature of individuals who were, at
the time when such a signature shall have been affixed, authorized to sign on
behalf of the Administrative Trustee shall, when duly authenticated pursuant
hereto, be validly issued and shall entitle the holder of such Certificate to
the benefits of this Agreement, notwithstanding that such individuals or any of
them shall cease to be so
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authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication, executed by the Administrative
Trustee or an agent thereof, by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder.
(b) The Administrative Trustee shall keep or cause to be kept at its
offices at One Illinois Center, 111 East Wacker, Suite 3000, Chicago, Illinois
60601, or such other office as it shall designate, by written notice to the
Initial Beneficiary, a certificate register (the "Certificate Register"), in
which, subject to such reasonable regulations as it may prescribe, the
Administrative Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Administrative Trustee shall
execute, authenticate and deliver in the name of the designated transferee or
transferees one or more new Certificates of the same type and proportionate
beneficial interest dated the date of authentication by the Administrative
Trustee. Each Certificate presented or rendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer in a form
reasonably satisfactory to the Administrative Trustee, duly executed by the
holder of such Certificate or its attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer and exchange shall be
canceled and subsequently disposed of by the Administrative Trustee in
accordance with its customary practice. No service charge shall be made for any
registration of transfer or exchange of any Certificate, but the Administrative
Trustee may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. Prior to the due presentation of a Certificate for registration of
transfer, the Administrative Trustee and each agent of the Administrative
Trustee may treat the Person in whose name any Certificate shall be registered
in the Certificate Register as the owner of such Certificate for all purposes,
and neither the Administrative Trustee nor any such agent shall be bound by any
notice to the contrary. The Administrative Trustee shall furnish or cause to be
furnished to each Servicer and the Initial Beneficiary, within three (3)
Business Days after receipt by the Administrative Trustee of request therefor, a
list of the names and addresses of the holders of the Certificates.
SECTION 4.4. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If any mutilated Certificate is surrendered to the Administrative Trustee,
or the Administrative Trustee receives evidence to its satisfaction of the
mutilation, destruction, loss or theft of any Certificate, and there is
delivered to the Administrative Trustee such security or indemnity as may be
reasonably required by it to save it harmless, then the Administrative Trustee
shall execute and authenticate, in lieu of such mutilated, destroyed, lost or
stolen Certificate, a Certificate of the same type and proportionate beneficial
interest bearing an identification number not contemporaneously outstanding,
which shall constitute for all purposes a substitute for the original
Certificate, which original Certificate shall be deemed canceled and shall be so
marked on the books and records of the Administrative Trustee.
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SECTION 4.5. RETITLING OF LEASED VEHICLES.
Each holder of a UTI Certificate or, subject to any restrictions on such
right set forth in the agreements governing any Financing, a SUBI Certificate,
may at any time, at its option, to be exercised by written notice delivered to
the applicable UTI Trustee or SUBI Trustee and the applicable Servicer, request
that the Leased Vehicles allocated to such UTI Certificate or SUBI Certificate,
as the case may be, be retitled in the name of such holder (or a Person
designated by such holder), that a lien may be noted on the Certificate of Title
therefor in the name of such holder (or a Person designated by such holder), or
that possession of such Certificate of Title and/or the other Trust Assets
allocated to such UTI Certificate or SUBI Certificate, as the case may be, be
transferred to such holder (or a Person designated by such holder) free and
clear of the interest of Trust. Except as otherwise provided in the related SUBI
Supplement, such holder shall indemnify the Trust, the Trustees and such
Servicer for, and hold the Trust, the Trustees and such Servicer harmless
against, any and all expenses, costs, liabilities, losses and claims incurred by
any of them as a result of or relating to such retitling or transfer, or any
action such holder shall take or fail to take as the registered owner of such
Leased Vehicles or the owner of such Trust Assets, including, without
limitation, sales and transfer taxes and registration fees.
PART V
DUTIES AND POWERS OF TRUST AND TRUSTEES;
TRUSTEE LIABILITY
SECTION 5.1. DUTIES AND POWERS OF TRUSTEES; LIMITATIONS ON TRUST ACTIVITY.
(a) Each Trustee undertakes to perform such duties, and only such duties,
as are specified in this Agreement, any supplement entered into pursuant to this
Agreement by such Trustee, or, except with respect to the duties of any Trustee
to the extent such duties relate to any SUBI Portfolio and the assets thereof,
as it may be directed to perform by the Initial Beneficiary in a manner not
contrary to the terms of this Agreement, from time to time, including, without
limitation, in connection with (i) a financing transaction of any sort
undertaken by the Initial Beneficiary or a Special Purpose Entity or any leasing
transaction entered into by the Initial Beneficiary or Special Purpose Entity as
lessor or lessee, which is, in any case, secured, directly or indirectly, by
Trust Assets, by all or part of the Undivided Trust Interest or by any SUBI or
any interest therein including, without limitation, any financing undertaken in
connection with the issuance and assignment of a SUBI and related SUBI
Certificate, (ii) any sale, transfer or pledge by the Initial Beneficiary or a
Special Purpose Entity of any interest in one or more SUBIs, (iii) any other
asset securitization, sale-leaseback, secured loan or similar transaction
involving Trust Assets or any beneficial interest therein or in the Trust (the
transactions in clauses (i), (ii) and (iii) are collectively referred to herein
as "Financings"), (iv) sales by the Trust of User Leases and other Trust Assets
to the extent permitted by the terms of any existing Financings (so long as the
Certificate of Title of any Leased Vehicle so sold is amended to reflect the
transfer of ownership thereof from the Trust, unless applicable law permits the
transfer of ownership of a motor vehicle without an amendment to the vehicle's
certificate of title) or (v) activities ancillary to any of the foregoing.
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(b) Except as provided in or otherwise expressly contemplated by this
Agreement or any Servicing Agreement, the Trust shall not (i) issue beneficial
or other interests in the Trust Assets or securities of the Trust other than the
UTI and UTI Certificates and one or more SUBIs and SUBI Certificates; (ii)
borrow money on behalf of the Trust; (iii) make loans or extend credit on behalf
of the Trust; (iv) underwrite securities; (v) offer securities in exchange for
Trust Assets (other than UTI Certificates and SUBI Certificates); (vi)
repurchase or otherwise reacquire any UTI Certificate or, except as permitted by
or in connection with any Financing relating thereto, any SUBI Certificate;
(vii) have any employees; (viii) own any real property or (ix) except for the
acquisition of Trust Assets and agreements relating to any Financing, enter into
any agreements or contracts.
(c) The Trustees may establish accounts and receive, maintain, invest and
disburse funds in accordance with Part VII hereof and any Servicing Agreement or
Supplement hereto.
(d) The Trust will enter into a Servicing Agreement with VCI, and the Trust
shall from time to time enter into one or more other servicing agreements (each
a "Servicing Agreement") with VCI or with such other or additional Persons as
the holder of the UTI Certificate or, subject to the provisions of the
agreements governing any Financing, any SUBI Certificate, shall designate in
writing with respect to the applicable Portfolio represented by such Certificate
(each, in such capacity, a "Servicer"). VCI is hereby designated as the initial
Servicer. Each Servicing Agreement shall specify various duties, powers,
liabilities, obligations and compensation of the Servicer with respect to the
administration and servicing of those Trust Assets as to which such Servicing
Agreement applies, including, without limitation, Leased Vehicles and User
Leases. The Trust may from time to time enter into one or more agreements (each,
a "Nominee Agreement") with any Person that the Initial Beneficiary shall
designate, such Person to serve as a nominee for the Trust in those
jurisdictions where the Trust may not be named as owner on Certificates of
Title. The Trustees, and each of them, on behalf of the Trust, shall execute and
deliver such documents, certificates, applications, powers of attorney and
registrations as shall be requested and prepared by a Servicer pursuant to a
Servicing Agreement or by the Initial Beneficiary in connection with the
administration of the Trust or the servicing of the Trust Assets, including,
without limitation, a power of attorney to each Dealer and the Servicer and, to
the extent deemed appropriate by the Servicer, any lessee under a User Lease (an
"End User"); provided, however, that no Trustee shall be obligated to enter into
any such documents, certificates, applications, powers of attorney or
registrations that adversely affect such Trustee's own rights, duties or
immunities under this Agreement or otherwise.
(e) The Trustees and the Trust shall have such powers as are necessary and
appropriate to the conduct of their duties as set forth in this Agreement, the
Servicing Agreements and the SUBI Supplements.
SECTION 5.2. DUTY OF CARE.
(a) No provision of this Agreement shall be construed to relieve any
Trustee from liability for its own grossly negligent action (or, with respect to
any handling or disbursement of
9
funds, its own negligent action), its own grossly negligent failure to act (or,
with respect to any handling or disbursement of funds, its own negligent failure
to act), its own bad faith, its own breach of its representations, warranties or
covenants given in its individual capacity or its own willful misfeasance, or
similar acts or omissions of any Trust Agent; provided, however, that:
(i) a Trustee shall not be personally liable for any action taken,
suffered or omitted by it or any error of judgment, in each case made in
good faith by any officer of, or any other employee of the corporate trust
office of, such Trustee or any Trust Agent, including any vice-president,
trust officer or any other officer of such Trustee or such Trust Agent
customarily performing functions similar to those performed by such
officers or to whom any corporate trust matter is referred because of such
Person's knowledge of or familiarity with the particular subject, unless it
shall be proved that such Trustee or Trust Agent was grossly negligent (or
with respect to any handling or disbursement of funds, negligent) or acted
with willful misfeasance in performing its duties in accordance with the
terms of this Agreement; and
(ii) a Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken in good faith in accordance
with the express direction of the Initial Beneficiary (to the extent
relating to the Undivided Trust Interest) or the holder or pledgee of a
SUBI Certificate in connection with a Financing (to the extent relating to
a SUBI) relating to the exercise of any trust power conferred upon such
Trustee under this Agreement.
(b) Notwithstanding Section 5.2(a), a Trustee shall not be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties under this Agreement, or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require a Trustee to perform, or be responsible for
the manner or omission of performance of, any of the duties or obligations of a
Servicer under any Servicing Agreement.
(c) Except for actions expressly authorized by this Agreement, a Trustee
shall take no action as to which such Trustee has been notified in writing by
the Initial Beneficiary, any Special Purpose Entity or other holder or pledgee
of a related SUBI Certificate or UTI Certificate, or has actual knowledge, that
such action would impair the beneficial interests in the Trust, would impair the
value of any Trust Asset or would adversely affect the credit rating of any
Financing.
(d) All information obtained by a Trustee regarding the administration of
the Trust, whether upon the exercise of its rights under this Agreement or
otherwise, shall be maintained by such Trustee in confidence and shall not be
disclosed to any other Person other than to any Trust Agent, the Initial
Beneficiary, any Special Purpose Entity (if applicable), any Servicer, any
assignee of an interest in a UTI or UTI Certificate or any pledgee of a UTI
Pledge (or any beneficiary of such pledge) and any assignee or pledgee of a SUBI
Certificate, unless such
10
disclosure is permitted by this Agreement or any other agreement contemplated
hereby, is reasonably necessary or incidental to the Trustee's discharge of its
duties or exercise of its rights hereunder, is required by any applicable law or
regulation or pursuant to subpoena (and such Trustee has provided notice thereof
to the Initial Beneficiary), or such information is already otherwise publicly
available.
SECTION 5.3. CERTAIN MATTERS AFFECTING THE TRUSTEES.
Except as otherwise provided in this Agreement:
(a) a Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, officer's certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper party or
parties. In particular, but without limitation, whenever in this Agreement it is
provided that a Trustee shall receive or may rely on the instructions or
directions of the Initial Beneficiary, a Special Purpose Entity, or the holder,
assignee or pledgee of a UTI Certificate or a SUBI Certificate in connection
with a Financing, any written instruction or direction purporting to bear the
signature of any officer of the Initial Beneficiary, a Special Purpose Entity,
or the holder, assignee or pledgee of a UTI Certificate or a SUBI Certificate in
connection with a Financing reasonably believed by it to be genuine may be
deemed by such Trustee to have been signed or presented by the proper party;
(b) a Trustee may consult with counsel, and any opinion of counsel shall be
full and complete protection in respect of any action taken or suffered or
omitted by it under this Agreement in good faith and in accordance with such
opinion of counsel;
(c) a Trustee shall be under no obligation to exercise any of the
discretionary rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or in relation to this
Agreement, at the request, order or direction of the Initial Beneficiary, a
Special Purpose Entity, the assignee or pledgee of a UTI Certificate or a SUBI
Certificate in connection with a Financing or any other beneficiary of the Trust
pursuant to the provisions of this Agreement, unless such requesting Person(s)
shall have offered to such Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
(d) a Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by the Initial Beneficiary, a
Special Purpose Entity, or by the assignee or pledgee of a UTI Certificate or
any holder, assignee or pledgee of a SUBI Certificate in connection with a
Financing; provided, however, that if the payment within a reasonable time to
such Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of such Trustee, not
reasonably assured to such Trustee by the security afforded to it by the terms
of this Agreement, such Trustee may require reasonable indemnity against such
11
cost, expense or liability as a condition to so proceeding; the reasonable
expense of every such examination shall be paid by the Person(s) requesting such
examination or, if paid by such Trustee, shall be reimbursed as an expense of
the Trust upon demand; and
(e) a Trustee may execute any of the trusts or powers under this Agreement
or perform any duties under this Agreement either directly or by or through
agents or attorneys or one or more custodians and the Trustee shall not be
liable for the acts or omissions of any agent or attorney selected by the
Trustee in good faith with reasonable care. A Trustee may delegate its duties
and responsibilities hereunder to a sub-trustee and may from time to time enter
into one or more agency agreements (each a "Trust Agency Agreement") with such
Person or Persons, including, without limitation, any Affiliate of such Trustee
(each a "Trust Agent"), as are by experience and expertise qualified to act in a
trustee capacity and otherwise acceptable to the Initial Beneficiary and any
assignee or pledgee of a SUBI Certificate in connection with a Financing. A
Trustee shall provide seven (7) days prior written notice to the Initial
Beneficiary of any such Trust Agency Agreement. Notwithstanding the foregoing, a
Trustee shall replace any Trust Agent if (i) in the good faith judgment of the
Initial Beneficiary, the compensation or level of service of such Trust Agent
shall no longer be reasonably competitive with those of any alternative agent
reasonably proposed by the Initial Beneficiary or (ii) if the Trust Agent has
materially breached its obligations under the Trust Agency Agreement or the
Initial Beneficiary or any assignee or pledgee of a UTI Certificate or any
holder, assignee or pledgee of a SUBI Certificate in connection with a Financing
has given written notice to such Trustee and the Trust Agent of such breach, and
the Trust Agent has not cured such breach in all material respects within
fifteen (15) Business Days thereafter (for purposes of this Agreement, "Business
Day" means any day that is not a Saturday, Sunday or other day on which
commercial banking institutions in Michigan, New York, Illinois, Delaware or the
city and state in which the principal corporate trust office of any other
Trustee is located, are authorized or obligated by law, regulation or executive
order to be closed). Such Trust Agency Agreement shall specify the duties,
powers, liabilities, obligations and compensation of such Trust Agent(s) to
carry out on behalf of such Trustee any or all of its obligations as Trustee of
the Trust arising under this Agreement or otherwise and shall contain a
non-petition covenant substantially identical to that set forth in Section 6.9;
provided, however, that nothing contained in any Trust Agency Agreement shall
excuse, limit or otherwise affect any power, duty, obligation, liability or
compensation otherwise applicable to such Trustee hereunder. The Trust shall pay
such amount to the Trust Agent as reasonable compensation for its services and
shall provide such reimbursement of expenses as are separately agreed by such
Trustee, the Initial Beneficiary and the Trust Agent. Notwithstanding anything
to the contrary herein, in no event shall any Nominee Agreement be deemed to be
a Trust Agency Agreement, or any Servicer or any Affiliate thereof or any Person
referred to in the penultimate sentence of Section 5.1(d) be deemed to be a
Trust Agent.
SECTION 5.4. TRUSTEES NOT LIABLE FOR CERTIFICATES OR USER LEASES.
A Trustee shall have no obligation to perform any of the duties of the
Initial Beneficiary or any Servicer unless explicitly set forth in this
Agreement or any Servicing Agreement. A
12
Trustee shall at no time have any responsibility or liability for or with
respect to (a) the validity or sufficiency of this Agreement (except as set
forth in Section 6.7) or the due execution hereof by the Initial Beneficiary or
the legality, validity and enforceability of any security interest in any Trust
Asset; (b) the perfection or priority of such a security interest or the
maintenance of any such perfection and priority; (c) the efficacy of the Trust
or its ability to generate the payments to be distributed to the Initial
Beneficiary or its permitted assignee(s) under this Agreement, including,
without limitation, the existence, condition, location and ownership of any
Trust Asset; (d) the existence and enforceability of any Insurance Policy; (e)
the existence and contents of any User Lease or any computer or other record
thereof; (f) the validity of the assignment of any Trust Asset to the Trust or
of any intervening assignment; (g) the completeness of any User Lease; (h) the
performance or enforcement of any User Lease; (i) the compliance by the Initial
Beneficiary or any Servicer with any covenant or the breach by the Initial
Beneficiary or any Servicer of any warranty or representation in any document
and the accuracy of any such warranty or representation prior to such Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof; (j) any investment of monies by any Servicer or any loss
resulting therefrom (it being understood that such Trustee shall remain
responsible for any Trust Assets that it may hold); (k) the acts or omissions of
any Dealer or any other Person, the Initial Beneficiary, any Servicer or any End
User under, or in connection with the origination of, any User Lease; (l) any
action of any Servicer taken in the name of such Trustee or the acts or
omissions of any Servicer under any Servicing Agreement or any other agreement
contemplated hereby or thereby; (m) any action by such Trustee taken at the
instruction of the Initial Beneficiary or any Servicer; or (n) the preparation,
execution or filing of any document or report with the Securities and Exchange
Commission or any state securities commission or agency; provided, however, that
the foregoing shall not relieve any Trustee of its obligation to perform its
duties under this Agreement. Except with respect to a claim based on the failure
of a Trustee to perform its duties (i) under this Agreement to authenticate and
deliver Certificates at the request of the Initial Beneficiary, or (ii) as set
forth in Sections 5.1(d), 6.9 and 6.10, or based on a Trustee's or any Trust
Agent's willful misconduct, bad faith or gross negligence, no recourse shall be
had against the Person or institution serving as a Trustee in its individual
capacity for any claim based on any provision of this Agreement or any Servicing
Agreement, or any Trust Asset or assignment thereof. A Trustee shall not be
accountable for the use or application by the Initial Beneficiary or a Special
Purpose Entity or any other holder of any of the SUBI Certificates or of the
proceeds of such Certificates, or for the use or application of any funds
properly paid to any Servicer pursuant to any Servicing Agreement.
SECTION 5.5. INDEMNITY OF TRUSTEES AND TRUST AGENTS.
Each Trustee and any Trust Agent shall be indemnified and held harmless
(but only out of and to the extent of the Trust Assets allocated to the
Portfolio for which such Trustee acts as trustee) with respect to any loss,
liability or expense, including reasonable attorneys' and other professionals'
fees and expenses (collectively "Claims"), arising out of or incurred in
connection with (a) any of the Trust Assets (including, without limitation, any
Claims relating to User Leases, Leased Vehicles, consumer fraud, consumer
leasing act violations, misrepresentation, deceptive and unfair trade practices,
and any other claims arising in connection with any User
13
Lease, personal injury or property damage claims arising with respect to any
Leased Vehicle or any claim with respect to any tax arising with respect to any
Trust Asset) or (b) such Trustee's or Trust Agent's acceptance or performance of
the trusts and duties contained in this Agreement or any Trust Agency Agreement,
with any allocation of such indemnification among the Trust Assets to be made as
provided for in Section 7.1(b) hereof, provided, however, that neither a Trustee
nor any Trust Agent shall be indemnified or held harmless out of the Trust
Assets as to any Claim (i) for which the Initial Beneficiary, a Servicer or any
of their respective Affiliates shall be liable and shall have paid pursuant to
this Agreement or a Servicing Agreement, (ii) incurred by reason of such
Trustee's or such Trust Agent's willful misfeasance, bad faith or gross
negligence, or (iii) incurred by reason of such Trustee Bank's breach of its
respective representations and warranties pursuant to any Servicing Agreement or
of Section 6.7 of this Agreement. The UTI Trustee shall in no event have any
recourse to any SUBI Assets, including such SUBI Assets which were UTI Assets at
the time a Claim against the UTI Trustee arose, and no SUBI Trustee shall have
any recourse to any UTI Assets or any Trust Assets allocated to any other SUBI.
SECTION 5.6. TRUSTEE'S RIGHT NOT TO ACT.
Notwithstanding anything to the contrary contained herein, a Trustee shall
have the right to decline to act in any particular manner otherwise provided for
herein if such Trustee, being advised in writing by counsel, determines that
such action may not lawfully be taken, or if such Trustee in good faith shall
determine that such action would be illegal or subject such Trustee to personal
liability or be unduly prejudicial to the rights of other beneficiaries of the
Trust.
SECTION 5.7. DOING BUSINESS IN OTHER JURISDICTIONS.
Notwithstanding anything contained herein to the contrary, neither a
Trustee Bank nor the related Trustee shall be required to take any action in any
jurisdiction other than in the State of its incorporation or any State in which
it is qualified to do business (each, a "State of Qualification") if the taking
of such action may (i) require the consent, approval, authorization or order of,
or the giving of notice to, or the registration with, or the taking of any other
action in respect of, any state or other governmental authority or agency of any
jurisdiction other than a State of Qualification; (ii) result in any fee, tax or
other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof, other than a State of
Qualification, becoming payable by the Trustee Bank or (iii) subject the Trustee
Bank to personal jurisdiction in any jurisdiction other than a State of
Qualification for causes of action arising from acts unrelated to the
consummation of the transactions by such Trustee Bank or the related Trustee, as
the case may be, contemplated hereby. In the event that a Trustee does not take
any action because such action may result in the consequences described in the
preceding sentence, such Trustee will appoint an additional trustee pursuant to
Section 6.6 to proceed with such action.
14
PART VI
APPOINTMENT, COMPENSATION AND REMOVAL OF TRUSTEES
SECTION 6.1. APPOINTMENT OF TRUSTEES.
U.S. Bank Trust National Association is hereby designated as UTI Trustee
and Administrative Trustee. Wilmington Trust Company is hereby designated as
Delaware Trustee.
SECTION 6.2. QUALIFICATION OF TRUSTEE.
Except as otherwise provided in this Agreement, each Trustee under this
Agreement shall at all times be (a) a bank or trust company organized under the
laws of the United States or one of the fifty states of the United States or the
District of Columbia, with capital and surplus of at least $50,000,000, and (b)
in the case of the Delaware Trustee only, have a principal place of business, or
shall have appointed an agent with a principal place of business, in the State
of Delaware. Any Trustee need not meet the qualifications set forth in clause
(a) above if such Trustee has appointed a Trust Agent that meets such
qualifications.
SECTION 6.3. RESIGNATION OR REMOVAL OF TRUSTEES.
(a) A Trustee may at any time resign by giving thirty (30) days prior
written notice to the Initial Beneficiary and each Certificateholder. Upon
receiving the notice of resignation, the holder of the UTI (in the case of the
UTI Trustee, Administrative Trustee or Delaware Trustee) or the holder of the
applicable SUBI (in the case of a SUBI Trustee) shall promptly appoint a
successor Trustee who meets the eligibility requirements set forth in Section
6.2 by written instrument.
(b) If at any time:
(i) a Trustee shall cease to be qualified in accordance with Section
6.2,
(ii) any representation or warranty made by a Trustee Bank pursuant to
Section 6.7 shall prove to have been untrue in any material respect when
made,
(iii) a Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of a Trustee or of its property shall
be appointed, or any public officer shall take charge or control of a
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or
(iv) the holder of the UTI Certificate or any SUBI Certificate
otherwise desires, in its sole discretion, to remove and replace the
applicable Trustee with respect to the UTI Portfolio or SUBI Portfolio
represented by such Certificate,
then such Trustee may be removed upon written notice by the holder of the
applicable UTI Certificate or SUBI Certificate or the assignee or pledgee of
such UTI Certificate or SUBI
15
Certificate in connection with a Financing. If a Trustee resigns or is removed
under the authority of the immediately preceding sentence, the holder of the
applicable UTI Certificate or SUBI Certificate shall promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to each of the
Servicer, the Initial Beneficiary and VCI and one copy to the successor Trustee,
together with payment of all amounts owed to the outgoing Trustee.
(c) Any resignation or removal of a Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this part shall not become
effective until acceptance of appointment by the successor Trustee.
SECTION 6.4. SUCCESSOR TRUSTEE.
Any successor Trustee appointed as provided in Section 6.3 shall execute,
acknowledge and deliver to the applicable Servicer, the Initial Beneficiary, the
holder of the applicable UTI Certificate or SUBI Certificate and to its
predecessor Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor 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 applicable Trustee. The predecessor Trustee shall
deliver to the successor Trustee all documents and statements held by it under
this Agreement, and the Initial Beneficiary, the holder of the applicable UTI
Certificate or SUBI Certificate and the predecessor 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 Trustee all such
rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section 6.4 unless at the time of such
acceptance such successor Trustee shall be eligible under the provisions of
Section 6.2.
SECTION 6.5. MERGER OR CONSOLIDATION OF TRUSTEES.
(a) Any entity (i) into which a Trustee may be merged or consolidated, (ii)
which may result from any merger, conversion, or consolidation to which a
Trustee shall be a party, or (iii) which may succeed to all or substantially all
of the corporate trust business of a Trustee, which entity, if requested by the
Initial Beneficiary or the holder of the UTI or the applicable SUBI, executes an
agreement of assumption to perform every obligation of such Trustee under this
Agreement, shall be the successor of such Trustee hereunder, provided such
entity shall be eligible pursuant to Section 6.2, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto (other than the written consent of the Initial Beneficiary or the holder
of the UTI Certificate or the applicable SUBI Certificate).
(b) Upon the happening of any of the events described in Section 6.3, 6.4
or 6.5(a), the successor Trustee shall, to the extent required by Delaware law,
cause an amendment to the Trust's certificate of trust to be filed with the
Secretary of State, in accordance with the
16
provisions of Section 3810 of the Business Trust Statute, indicating the change
with respect to such Trustee's identity.
SECTION 6.6. APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, OR NOMINEE.
(a) Notwithstanding any other provision of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
Trust Asset may at the time be located, the Servicer with respect to the
applicable beneficial interest and a Trustee, acting jointly, shall have the
power to execute and deliver all instruments to appoint one or more Persons
approved by such Servicer and Trustee to act as co-trustee, jointly with such
Trustee, or as a separate trustee or nominee, of all or any part of the Trust,
and to vest in such Person, in such capacity and for the benefit of the holder
of the Certificate representing such beneficial interest and its permitted
assignee(s), such title to the Trust Assets, or any part thereof, and, subject
to the other provisions of this Section 6.6, such powers, duties, obligations,
rights and trusts as such Persons may consider necessary or desirable. No
co-trustee, separate trustee, or nominee under this Agreement shall be required
to meet the terms of eligibility as a successor trustee pursuant to Section 6.2,
except that no co-trustee, separate trustee or nominee with respect to the UTI,
any UTI Assets, any SUBI or any SUBI Assets under this Agreement may be the
Initial Beneficiary or any Affiliate thereof.
(b) 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 applicable Trustee shall be conferred upon and exercised or
performed by such Trustee and such separate trustee and co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without such 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 (whether as a Trustee under this
Agreement or as successor to any Servicer under this Agreement or any
Servicing Agreement), such Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the direction of such
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 Initial Beneficiary (or the holder of a UTI Certificate or a
SUBI Certificate for a separate trustee or co-trustee acting with respect
to the UTI Portfolio or the related SUBI Portfolio) and a Trustee acting
jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to a 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
17
of them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Section 6.6. 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 a 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, such Trustee. Each such instrument shall be filed with
such Trustee and a copy thereof given to each Servicer.
Any separate trustee or co-trustee may at any time appoint the applicable
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts relating to this Agreement and the Trust
Assets shall vest in and be exercised by the applicable Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Notwithstanding anything to the contrary in this Agreement, the appointment of
any separate trustee or co-trustee shall not relieve the applicable Trustee of
its obligations and duties under this Agreement.
SECTION 6.7. REPRESENTATIONS AND WARRANTIES OF TRUSTEES.
Each Trustee Bank hereby makes the following representations and warranties
as of the date hereof, and the Trustee Bank shall be deemed to remake the
following representations and warranties upon each designation of a SUBI at the
direction of the Initial Beneficiary in connection with a Financing, on which
the Initial Beneficiary, each of its permitted assignees and pledgees, and each
pledgee or holder of a Certificate (and beneficial owner of any portion thereof
in connection with a Financing) may rely:
(a) Organization and Good Standing. The Trustee Bank is a banking
corporation or association duly organized, validly existing and in good standing
under the law of its jurisdiction of organization;
(b) Power and Authority. The Trustee Bank has full power, authority and
right to execute, deliver and perform its obligations under this Agreement, and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement;
(c) Due Execution. This Agreement has been duly executed and delivered by
the Trustee Bank, and is a legal, valid and binding instrument enforceable
against the Trustee Bank in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(d) No Conflict. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated herein, nor compliance with
the provisions
18
hereof, will conflict with or result in a breach of, or constitute a default
(with notice or passage of time or both) under any provision of any law,
governmental rule or regulation, judgment, decree or order binding on the
Trustee or the articles of association or by-laws of the Trustee or any
provision of any mortgage, indenture, contract, agreement or other instrument to
which the Trustee is a party or by which it is bound; and
(e) Location of Records. The office where the Administrative Trustee keeps
its records concerning the transactions contemplated hereby is located at One
Illinois Center, 111 East Wacker, Suite 3000, Chicago, Illinois 60601.
SECTION 6.8. TRUSTEE'S FEES AND EXPENSES.
To the extent not paid by the Servicer pursuant to the Servicing Agreement,
each Trustee shall be paid out of Trust Assets allocated to the Portfolio
administered by such Trustee reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) and reimbursement of all reasonable expenses (including, without
limitation, reasonable attorneys' fees), as may be agreed upon in writing
between the Initial Beneficiary and such Trustee, for all services rendered by
it in the execution of the Trust and in the exercise and performance of any of
the powers and duties under this Agreement.
SECTION 6.9. NO PETITION.
(a) Each of the Trustees, the Initial Beneficiary and each holder and
pledgee of any beneficial interest in the Trust covenants and agrees that prior
to the date which is one year and one day after the date upon which all
obligations under each Financing have been paid in full, it will not institute
against, or join any other Person in instituting against, the Trust, any other
Special Purpose Entity, or any general partner of any Special Purpose Entity
that is a partnership, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law. This Section 6.9 shall survive the termination of
this Agreement or the resignation or removal of such Trustee under this
Agreement.
(b) No bankruptcy, reorganization arrangement, insolvency or liquidation
proceeding or other proceedings under any federal or state bankruptcy,
insolvency or similar law shall be instituted or joined in by the Trust without
the unanimous consent of all Trustees and Certificateholders hereunder. A SUBI
Trustee shall not so consent unless directed to do so by the holder of the
applicable SUBI, and the Administrative Trustee shall not so consent unless
directed to do so by all of the Certificateholders.
SECTION 6.10. PLACE OF BUSINESS.
At all times, either the Delaware Trustee or a co-trustee hereunder shall
be a resident of, or have a principal place of business in, the State of
Delaware.
19
PART VII
ACCOUNTS
SECTION 7.1. ACCOUNTS; EXPENSES.
(a) The UTI Trustee may establish and maintain with respect to the
Undivided Trust Interest such bank accounts as may be directed in writing by the
Initial Beneficiary and each SUBI Trustee will establish and maintain with
respect to each SUBI such bank accounts as may be set forth in the applicable
SUBI Supplement or the documents relating to any Financing (collectively, the
"Trustee Accounts," and each such Trustee Account with respect to any particular
SUBI, a "SUBI Account"). A Trustee may authorize any Servicer to make deposits
into and to make disbursements from its Trustee Accounts in accordance with the
terms and provisions of this Agreement, any Servicing Agreement or the documents
relating to any Financing.
(b) To the extent not paid by the Servicer pursuant to the Servicing
Agreement, all Trust expenses shall be paid out of the Trust Assets, including,
without limitation, (i) any reimbursement due to any Servicer for payments from
its own operating accounts in order to fund any advances made by such Servicer,
with the consent of the applicable Trustee (to be given only at the direction of
the Initial Beneficiary or in accordance with the terms of any Financing), with
respect to any User Lease or Leased Vehicle, (ii) Servicer fees (and expenses,
if any, not covered by the Servicer fee under any Servicing Agreement), (iii)
Trustee fees and expenses and (iv) other Trust expenses, if any; provided,
however, that (x) to the extent that an expense or liability of a Trustee, the
Initial Beneficiary or a Special Purpose Entity (if applicable) shall be
incurred or suffered with respect to a discrete Trust Asset or group of Trust
Assets (including, without limitation, contract, tort or tax claims relating to
one or more specific User Leases or Leased Vehicles) (each an "Affected Trust
Asset" and collectively, the "Affected Trust Assets"), all of which either are
contained in one or more SUBI Portfolios, on the one hand, or in the UTI
Portfolio, on the other hand, the holders of each SUBI containing any Affected
Trust Asset (pro rata in the ratio of the aggregate value of those Affected
Trust Assets held in each such SUBI portfolio as recorded on the books of the
Trust to the aggregate value of all Affected Trust Assets held in all such SUBI
Portfolios) or the holder of the Undivided Trust Interest, as the case may be,
shall bear in full the burden of such Trustee, Initial Beneficiary or Special
Purpose Entity expense or liability, but (y) to the extent that any such expense
or liability of a Trustee, Initial Beneficiary or a Special Purpose Entity shall
be incurred or suffered with respect to the Trust Assets generally, all
beneficiaries of the Trust shall bear the burden of such Trust expenses or
liabilities on a pro rata basis in the ratio of the aggregate value of Trust
Assets held in each respective SUBI Portfolio and the UTI Portfolio, as each is
recorded on the books of the Trust, to the total value of all Trust Assets. Any
pro rata allocation of an expense or liability among one or more of the SUBI
Portfolios or the UTI Portfolio shall be made in good faith and so as not to
disproportionately affect any SUBI Portfolio or the UTI Portfolio.
(c) All or a portion of the funds deposited into each Trustee Account shall
be separately invested by the applicable Trustee from time to time at the
written direction of the
20
Initial Beneficiary or a Special Purpose Entity or the holder of a SUBI
Certificate (as appropriate) or the applicable Servicer, as its designee, all as
specified in the applicable Servicing Agreement.
SECTION 7.2. REBALANCING AFTER THIRD-PARTY CLAIM.
To the extent that a third-party claim against Trust Assets is satisfied
out of Trust Assets in proportions other than as provided in Section 7.1(b),
then, notwithstanding anything to the contrary contained herein, the UTI Trustee
and SUBI Trustees shall promptly identify and reallocate (or request the
Servicers to identify and reallocate) the remaining Trust Assets among the UTI
Portfolio and each of the SUBI Portfolios so that each shall bear the expense of
the third party claim as nearly as possible as if the burden of such claim had
been allocated as provided in Section 7.1(b).
PART VIII
DISSOLUTION
SECTION 8.1. DISSOLUTION OF THE TRUST.
(a) The Trust shall dissolve upon the unanimous written agreement of all of
the Certificateholders. Upon the dissolution of the Trust, its affairs shall be
wound up and its property liquidated. Thereafter, after paying its liabilities
in accordance with Section 3808 of the Business Trust Statute, the Delaware
Trustee shall cause the Trust's certificate of trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute and the Trust shall
terminate.
(b) Any SUBI shall be dissolved and its affairs shall be wound up at the
time or upon the happening of events specified in the applicable SUBI
Supplement. Any SUBI established in accordance with this Agreement may be
dissolved and its affairs wound up without causing the dissolution of the Trust
or any other series thereof. The dissolution, winding up, liquidation or
termination of the Trust or any series thereof shall not affect any limitation
of liability with respect to a series established in accordance with this
Agreement, the Certificate of Trust or Section 3804(a) of the Business Trust
Statute. The death, incapacity, dissolution, termination or bankruptcy of a
beneficial owner of any series shall not result in the termination or
dissolution of such series and such series may not be terminated or revoked by a
beneficial owner of such series or other person except in accordance with the
terms of this Agreement or, in the case of any SUBI, the applicable SUBI
Supplement.
(c) The Servicer and any other persons who under this Agreement or a SUBI
Supplement are responsible for winding up the affairs of any series may, in the
name of the Trust and for and on behalf of the Trust and such series, take all
actions with respect to the series as are permitted under Section 3808 of the
Business Trust Statute and shall provide for the claims and obligations of the
series and distribute the assets of the series as provided under Section 3808 of
the Business Trust Statute. Any Person, including any Trustee, who under this
Agreement or any SUBI Supplement is responsible for winding up such series'
affairs who has complied with
21
Section 3808(e) of the Business Trust Statute shall not be personally liable to
the claimants of the dissolved series by reason of such Person's actions in
winding up the series.
PART IX
MISCELLANEOUS PROVISIONS
SECTION 9.1. AMENDMENT.
Any amendment of this Agreement shall require a written agreement between
the Initial Beneficiary and the UTI Trustee (entered into by the UTI Trustee at
the written direction of the Initial Beneficiary) and such additional approvals,
if any, under each SUBI Supplement or Financing as are required thereby;
provided, however, that amendments shall not require any approval of the holder
or pledgee of any SUBI or any approval under any SUBI Supplement or under a
Financing if the holders and pledgees of such SUBI and the holders of the
obligations, instruments or securities issued in such Financing would not be
adversely affected by such amendment. Prior to the execution of any amendment to
this Agreement, any Servicing Agreement or any other agreement contemplated
hereby or thereby, a 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, if any, to such
execution and delivery have been satisfied. A Trustee may, but shall not be
obligated to, enter into any such amendment which adversely affects such
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 9.2. GOVERNING LAW.
THIS AGREEMENT SHALL BE CREATED UNDER AND GOVERNED BY AND CONSTRUED UNDER
THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 9.3. NOTICES.
All demands, notices and communications under this Agreement shall be in
writing and shall be delivered or mailed by registered or certified first class
United States mail, postage prepaid, return receipt requested; hand delivery;
prepaid courier service; or telecopier, and addressed in each case as follows:
(a) if to the Initial Beneficiary, VW Credit, Inc., 3800 Hamlin Road, Auburn
Hills, Michigan 48326 Attention: Allen Strang, Esq.; Facsimile: (248) 340-4794,
with copies to Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603, Attention: Stuart M. Litwin; Facsimile: (312) 701-7711 (Confirmation
Number: (312) 701-7373); (b) if to the UTI Trustee or Administrative Trustee,
U.S. Bank Trust National Association, One Illinois Center, 111 East Wacker,
Suite 3000, Chicago, Illinois 60601 Attention: Corporate Trust Department;
Facsimile: (312) 228-9401 (Confirmation Number: (312) 228-9416); or (c) if to
the Delaware Trustee, 1100 North Market Street, Wilmington, Delaware 19890
Attention: Corporate Trust Administration; Facsimile: (302) 651-8882 or at
22
such other address as shall be designated by the Initial Beneficiary, the UTI
Trustee or the Delaware Trustee in a written notice to the other parties hereto.
SECTION 9.4. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of any Certificates or the rights of the holders thereof.
SECTION 9.5. CONSTRUCTION.
For all purposes of this Agreement, unless the context otherwise requires
or as otherwise expressly provided, (a) all defined terms shall include both the
singular and the plural forms thereof; (b) reference to any gender shall include
all other genders; (c) all references to words such as "herein," "hereof" and
the like shall refer to this Agreement as a whole and not to any particular Part
or Section within this Agreement; (d) the term "include" means "include without
limitation," and (e) the term "or" is intended to include the term "and/or."
SECTION 9.6. SEPARATE ENTITY.
The Trustees and the Initial Beneficiary shall in all transactions with
third parties hold the Trust out as a separate entity from the Initial
Beneficiary and any Affiliate of the Initial Beneficiary.
SIGNATURES ON NEXT PAGE
23
IN WITNESS WHEREOF, each of the undersigned have caused this Trust
Agreement to be duly executed by their respective officers as of the day and
year first above written.
VW CREDIT, INC.,
as Settlor and Initial Beneficiary
By: /s/ Frank Witter
-----------------------------------
Name: Frank Witter
Title: Treasurer
VW CREDIT, INC.,
as Settlor and Initial Beneficiary
By: /s/ Klaus-Dieter Schuermann
-----------------------------------
Name: Klaus-Dieter Schuermann
Title: President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as UTI Trustee and Administrative Trustee
By: /s/ Melissa A. Rosal
-----------------------------------
Name: Melissa A. Rosal
Title: Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Patricia A. Evans
-----------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
EXHIBIT A
VW CREDIT LEASING, LTD.
DEFINITIONS
"Administrative Trustee" shall have the meaning set forth in the Preamble.
"Affected Trust Assets" shall have the meaning set forth in Section 7.1(b).
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly controls, is controlled by or is under common
control with such specified Person.
"Agreement" shall have the meaning set forth in the Preamble.
"Business Day" shall have the meaning set forth in Section 5.3(e).
"Business Trust Statute" shall have the meaning set forth in Section 1.1.
"Certificate" means a SUBI Certificate or a UTI Certificate.
"Certificateholder" means a Person who holds right, title and interest in a
Certificate.
"Certificate of Title" shall have the meaning set forth in Section 2.1(c).
"Certificate Register" shall have the meaning set forth in Section 4.3(b).
"Claims" shall have the meaning set forth in Section 5.5.
"Dealer Agreements" shall have the meaning set forth in Section 2.1(d).
"Dealers" shall have the meaning set forth in Section 2.1(b).
"Delaware Trustee" shall have the meaning set forth in the Preamble.
"End User" shall have the meaning set forth in Section 5.1(d).
"Financings" shall have the meaning set forth in Section 5.1(a).
"Initial Beneficiary" shall have the meaning set forth in the Preamble.
"Insurance Policies" shall have the meaning set forth in Section 2.1(e).
"Leased Vehicles" shall have the meaning set forth in Section 2.1(b).
"Nominee Agreement" shall have the meaning set forth in Section 5.1(d).
A-1
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, bank, limited liability company, trust
company, estate (including any beneficiaries thereof), unincorporated
organizations or government or any agency or political subdivision thereof.
"Portfolio" means the UTI Portfolio or any SUBI Portfolio.
"Preamble" means the first paragraph of the Agreement.
"Registrar of Titles" shall have the meaning set forth in Section 2.1(c).
"Secretary of State" means the Secretary of State of the State of Delaware.
"Security Deposit" means, with respect to any User Lease, the refundable
security deposit specified in such User Lease.
"Servicer" shall have the meaning set forth in Section 5.1(d).
"Servicing Agreement" shall have the meaning set forth in Section 5.1(d).
"Settlor" shall have the meaning set forth in the Preamble.
"Special Purpose Entity" means a special purpose corporation, partnership,
limited partnership, trust, business trust, limited liability company or other
entity created for one or more Financings.
"State of Qualification" has the meaning set forth in Section 5.7.
"SUBI" shall have the meaning set forth in Section 4.2(a).
"SUBI Account" shall have the meaning set forth in Section 7.1(a).
"SUBI Assets" shall have the meaning set forth in Section 4.1(a).
"SUBI Certificate" shall have the meaning set forth in Section 4.2(b).
"SUBI Portfolio" shall have the meaning set forth in Section 4.2(a).
"SUBI Supplement" shall have the meaning set forth in Section 4.2(b).
"SUBI Trustee" shall have the meaning set forth in Section 4.2(d).
"Trust" shall have the meaning set forth in Section 1.1.
"Trust Agency Agreement" shall have the meaning set forth in Section
5.3(e).
A-2
"Trust Agent" shall have the meaning set forth in Section 5.3(e).
"Trust Assets" shall have the meaning set forth in Section 2.1.
"Trustee Accounts" shall have the meaning set forth in Section 7.1(a).
"Trustee Bank" means a Person, in its individual capacity, that acts as a
Trustee hereunder.
"Trustees" means the Delaware Trustee, the UTI Trustee, the Administrative
Trustee and any SUBI Trustee.
"Undivided Trust Interest" shall have the meaning set forth in Section
4.1(a).
"Undivided Trust Interest Certificate" shall have the meaning set forth in
Section 4.1(b).
"User Leases" shall have the meaning set forth in Section 2.1(b).
"UTI" shall have the meaning set forth in Section 4.1(a).
"UTI Assets" shall have the meaning set forth in Section 4.1(a).
"UTI Certificate" shall have the meaning set forth in Section 4.1(b).
"UTI Pledge" means any pledge of, or the granting of a security interest
in, the UTI Certificate, or a portion thereof, by the holder thereof.
"UTI Portfolio" means User Leases and Leased Vehicles not allocated to a
SUBI Portfolio and remaining as part of the Undivided Trust Interest.
"UTI Supplement" shall have the meaning set forth in Section 4.1(b).
"UTI Trustee" shall have the meaning set forth in the Preamble.
"VCI" shall have the meaning set forth in the Preamble.
A-3
EXHIBIT B
VW CREDIT LEASING, LTD.
UNDIVIDED TRUST INTEREST CERTIFICATE
evidencing an exclusive undivided interest in all Trust Assets
(as defined below) other than SUBI Assets (as defined below).
(This Certificate does not represent an obligation of, or an
interest in, Wilmington Trust Company, U.S. Bank Trust National
Association, VW Credit, Inc., Volkswagen of America, Inc. or any
of their respective Affiliates.)
Number UTI-1
THIS CERTIFIES THAT VW Credit, Inc. is the registered owner of a
nonassessable, fully-paid, exclusive undivided interest in the Trust Assets,
other than SUBI Assets (such interest, an "Undivided Trust Interest"), of VW
Credit Leasing, Ltd., a Delaware business trust (the "Trust"), formed pursuant
to a Trust Agreement dated and effective as of June 2, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), between
VW Credit, Inc., as settlor and initial beneficiary (the "Initial Beneficiary"),
U.S. Bank Trust National Association, as trustee of the UTI (together with any
successor or permitted assign, the "UTI Trustee") and as Administrative Trustee
(together with any successor or permitted assign, the "Administrative Trustee")
and Wilmington Trust Company, as Delaware Trustee (together with any successor
or permitted assign, the "Delaware Trustee"). A summary of certain of the
pertinent portions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms herein have the meanings set
forth in the Agreement.
This Certificate is one of the duly authorized certificates issued under
the Agreement and designated as "VW Credit Leasing, Ltd. Undivided Trust
Interest Certificates" (the "Undivided Trust Interest Certificates"). This
Undivided Trust Interest Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the holder
of this Undivided Trust Interest Certificate, by virtue of the acceptance
hereof, assents and by which such holder is bound. Also to be issued under the
Agreement are various series of Certificates, each designated as "VW Credit
Leasing, Ltd. Special Unit of Beneficial Interest Certificates" (the "SUBI
Certificates" and, together with the Undivided Trust Interest Certificates, the
"Certificates"). Each series of SUBI Certificates, taken together, will evidence
an exclusive undivided interest in a separate SUBI Portfolio.
The rights of the holder of this Certificate to the Trust Assets and the
proceeds thereof are and will be set forth in the Agreement.
The Certificates do not represent an obligation of, or an interest in, the
Initial Beneficiary, Wilmington Trust Company, U.S. Bank Trust National
Association, any other Trustee or any of their respective Affiliates. The
Certificates are limited in right of payment to certain collections
B-1
and recoveries respecting the User Leases and the Leased Vehicles not allocated
to any SUBI Portfolio, all to the extent and as more specifically set forth in
the Agreement. A copy of the Agreement may be examined during normal business
hours at the principal office of the UTI Trustee, the Administrative Trustee or
the Delaware Trustee, and at such other places, if any, designated by the UTI
Trustee, by the holder hereof upon request.
By accepting this Certificate, the holder hereof hereby covenants and
agrees that prior to the date which is one year and one day after the date upon
which all obligations under each Financing have been paid in full, it will not
institute against, or join any other Person in instituting against, the Trust,
any other Special Purpose Entity, or any general partner of any Special Purpose
Entity that is a partnership, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law.
By accepting this Certificate, the holder hereof waives any claim to any
proceeds or assets of the Trustees and to all of the Trust Assets from time to
time included within each SUBI Portfolio as SUBI Assets and those proceeds or
assets derived from or earned by such SUBI Assets.
The Agreement permits the amendment thereof and the modification of the
rights and obligations of the parties thereto and the rights of holders of
Undivided Trust Interest Certificates at any time by the Initial Beneficiary and
the UTI Trustee, provided that any such amendment shall require such additional
approvals as may be required by each Financing.
As provided in the Agreement, any transfer or assignment of this
Certificate and the underlying interests represented hereby is registrable upon
surrender of this Certificate for registration of transfer with the
Administrative Trustee (or the Trust Agent, if applicable) or by any successor
Administrative Trustee, accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustee duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Undivided Trust Interest Certificates of a like aggregate fractional undivided
interest will be issued to the designated permitted transferee.
Prior to due presentation of this Certificate for registration of transfer,
the Trustees, and each agent of a Trustee may treat the Person or entity in
whose name this Certificate is registered as the owner hereof for all purposes,
and, except as provided for in the Agreement, neither the Trustees nor any such
agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the Trust
created thereby shall terminate upon the unanimous written agreement of all of
the Certificateholders.
Unless this Certificate shall have a certificate of authentication
attached, executed by the Administrative Trustee or an agent thereof by manual
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose.
B-2
IN WITNESS WHEREOF, the Administrative Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Undivided Trust Interest
Certificate to be duly executed.
Dated: June 2, 1999 VW CREDIT LEASING, LTD.
By: U.S. Bank Trust National Association,
as Administrative Trustee
By:
--------------------------------------
Authorized Officer
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the UTI Certificate referred to in the within-mentioned Trust
Agreement.
U.S. Bank Trust National Association, as
Administrative Trustee
By:
------------------------------
Authorized Officer
B-4
EXHIBIT C
CERTIFICATE OF TRUST OF
VW CREDIT LEASING, LTD.
This Certificate of Trust of VW Credit Leasing, Ltd. (the "Trust"), dated
as of June 2, 1999 (the "Certificate of Trust"), is being duly executed and
filed by Wilmington Trust Company and U.S. Bank Trust National Association, each
as Trustee, to form a business trust under the Delaware Business Trust Act (12
Del. C.ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is VW Credit Leasing,
Ltd.
2. Delaware Trustee. The name and business address of the Trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 1100 North Market
Street, Wilmington, Delaware 19890.
3. Duly Authorized. The Trustee is duly authorized to sign this Certificate
of Trust.
4. Series Trust. The Trust may issue series of beneficial interests, having
separate rights, powers or duties with respect to property or obligations of the
Trust, as provided in 12 Del. C. ss.ss. 3804 and 3806(b)(2), such that the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular series shall be enforceable
against the assets of such series only, and not against the assets of the Trust
generally, and, unless otherwise provided in the governing instrument, none of
the debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to the Trust generally or any other series
thereof shall be enforceable against the assets of such series.
5. Powers of Attorney. VW Credit, Inc. (the "Company") has been designated
by the Trustee and the Trust as the true and lawful attorney-in-fact for and on
behalf of the Trust, with full power and authority to perform any and all acts
related to managing, servicing, administering and collecting any part of the
corpus of the Trust and is authorized and empowered to execute and deliver, on
behalf and in the name of the Trust, any and all instruments, certificates or
other documents relating thereto. The Company also has the right, power and
authority to designate in writing other persons and entities ("Company
Designees") as true and lawful attorneys-in-fact for and on behalf of the Trust
to do anything that the Company has the power to do under this paragraph.
Without limiting the generality of the foregoing, the Company or any Company
Designee is hereby authorized and empowered by the Trust to execute and deliver,
on behalf of the Trust, any and all applications for certificates of title or
duplicates of such certificates in the name of the Trust, any and all
applications for registrations of vehicles and/or license plates, any and all
applications for transfers of certificates of title or registrations for
vehicles and/or license plates, and any and all other instruments, certificates
or other documents which the Company or a Company Designee deems necessary or
advisable to record, hold or release title to and/or registration of motor
vehicles in the name of the Trust. A photocopy or original of this
C-1
Certificate of Trust shall have the same effect as an original, manually signed
and acknowledged Power of Attorney.
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Trustee
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
C-2
Acknowledgment
STATE OF DELAWARE )
)ss.
COUNTY OF NEW CASTLE )
On this day of June 1999, before me personally appeared , who
acknowledged himself to be an officer of the above Trustee, and that he, as such
officer, being authorized to do so, executed the foregoing instrument for the
purposes therein contained as the free act and deed of said Trustee, and as his
free act and deed as an officer of said Trustee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------
Notary Public
My commission expires:
-----------------------------
Acknowledgment
STATE OF DELAWARE )
)ss.
COUNTY OF NEW CASTLE )
On this day of June 1999, before me personally appeared , who
acknowledged himself to be an officer of the above Trustee, and that he, as such
officer, being authorized to do so, executed the foregoing instrument for the
purposes therein contained as the free act and deed of said Trustee, and as his
free act and deed as an officer of said Trustee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------
Notary Public
My commission expires:
-----------------------------
C-4