Exhibit 99.3
VOLKSWAGEN AUTO LEASE TRUST 20[__]-[__]
AMENDED AND RESTATED TRUST AGREEMENT
BETWEEN
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
AS THE DEPOSITOR
AND
[____________________],
AS THE OWNER TRUSTEE
DATED AS OF [__________], [_____]
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................... 1
SECTION 1.1. Capitalized Terms...................................... 1
SECTION 1.2. Other Interpretive Provisions.......................... 1
ARTICLE II ORGANIZATION.................................................. 1
SECTION 2.1. Name................................................... 1
SECTION 2.2. Office................................................. 2
SECTION 2.3. Purposes and Powers.................................... 2
SECTION 2.4. Appointment of the Owner Trustee....................... 2
SECTION 2.5. Initial Capital Contribution of Trust Estate........... 2
SECTION 2.6. Declaration of Trust................................... 2
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.... 3
SECTION 2.8. Title to the Trust Estate.............................. 3
SECTION 2.9. Representations and Warranties of the Transferor....... 3
SECTION 2.10. Situs of Issuer........................................ 4
ARTICLE III CERTIFICATE AND TRANSFER OF CERTIFICATE...................... 4
SECTION 3.1. Initial Ownership...................................... 4
SECTION 3.2. Authentication of Certificate.......................... 5
SECTION 3.3. Form of the Certificate................................ 5
SECTION 3.4. Registration of Certificates........................... 5
SECTION 3.5. Transfer of Certificate................................ 5
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates...... 6
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................... 6
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters........................................ 6
SECTION 4.2. Action by Certificateholder with Respect to Certain
Matters................................................ 7
SECTION 4.3. Action by Certificateholder with Respect to
Bankruptcy............................................. 7
SECTION 4.4. Restrictions on Certificateholder's Power.............. 7
SECTION 4.5. Majority Control....................................... 7
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................... 7
SECTION 5.1. Application of Trust Funds............................. 7
SECTION 5.2. Method of Payment...................................... 8
SECTION 5.3. Sarbanes-Oxley Act..................................... 8
SECTION 5.4. Signature on Returns................................... 8
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................... 8
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(continued)
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SECTION 6.1. General Authority...................................... 8
SECTION 6.2. General Duties......................................... 8
SECTION 6.3. Action upon Instruction................................ 9
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions........................................... 9
SECTION 6.5. No Action Except under Specified Documents or
Instructions........................................... 10
SECTION 6.6. Restrictions........................................... 10
ARTICLE VII CONCERNING OWNER TRUSTEE..................................... 10
SECTION 7.1. Acceptance of Trusts and Duties........................ 10
SECTION 7.2. Furnishing of Documents................................ 10
SECTION 7.3. Representations and Warranties......................... 11
SECTION 7.4. Reliance; Advice of Counsel............................ 11
SECTION 7.5. Not Acting in Individual Capacity...................... 12
SECTION 7.6. The Owner Trustee May Own Notes........................ 12
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................... 12
SECTION 8.1. The Owner Trustee's Fees and Expenses.................. 12
SECTION 8.2. Indemnification........................................ 12
SECTION 8.3. Payments to the Owner Trustee.......................... 13
ARTICLE IX TERMINATION OF TRUST AGREEMENT................................ 13
SECTION 9.1. Termination of Trust Agreement......................... 13
SECTION 9.2. Dissolution of the Issuer.............................. 13
SECTION 9.3. Limitations on Termination............................. 13
SECTION 9.4. Purchase of the Transaction SUBI Certificate.......... 13
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES......... 14
SECTION 10.1. Eligibility Requirements for the Owner Trustee......... 14
SECTION 10.2. Resignation or Removal of the Owner Trustee............ 14
SECTION 10.3. Successor Owner Trustee................................ 15
SECTION 10.4. Merger or Consolidation of the Owner Trustee........... 15
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.......... 16
ARTICLE XI MISCELLANEOUS................................................. 17
SECTION 11.1. Supplements and Amendments............................. 17
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder.... 18
SECTION 11.3. Limitations on Rights of Others........................ 18
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TABLE OF CONTENTS
(continued)
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SECTION 11.4. Notices................................................ 18
SECTION 11.5. Severability........................................... 19
SECTION 11.6. Separate Counterparts.................................. 19
SECTION 11.7. Successors and Assigns................................. 19
SECTION 11.8. No Petition............................................ 19
SECTION 11.9. Headings............................................... 19
SECTION 11.10. GOVERNING LAW.......................................... 19
SECTION 11.11. Each SUBI Separate; Assignees of SUBI.................. 19
SECTION 11.12. Waiver of Jury Trial................................... 20
SECTION 11.13. Information Requests................................... 20
SECTION 11.14. Information to Be Provided by the Owner Trustee........ 20
EXHIBIT A - Form of Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT is made as of [__________],
[____] (as from time to time amended, supplemented or otherwise modified and in
effect, this "Agreement") between VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING,
LLC, a Delaware limited liability company, as the depositor (the "Transferor"),
and [____________], a [Delaware banking corporation], as the owner trustee (the
"Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Unless otherwise indicated, capitalized
terms used in this Agreement are defined in Appendix A to the Indenture, dated
as of the date hereof (as the same may be amended, modified or supplemented from
time to time, the "Indenture"), between the Issuer (as defined below) and
[____________], as indenture trustee.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
SECTION 2.1. Name. The trust created under that certain Trust Agreement
dated as of [__________], [____] and by the filing of the certificate of trust
pursuant to the Statutory Trust Act and continued hereby shall be known as
"Volkswagen Auto Lease Trust 20[__]-[__]" (the "Issuer"), in which name the
Owner Trustee may conduct the business of such trust, make and execute contracts
and other instruments on behalf of such trust and sue and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the Owner
Trustee at [__________] or at such other address as the Owner Trustee may
designate by written notice to the Certificateholder, the Transferor and the
Administrator.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the Certificate
pursuant to this Agreement, and to sell, transfer and exchange the Notes
and the Certificate and to pay interest on and principal of the Notes and
distributions on the Certificate;
(b) to acquire the property and assets set forth in the SUBI Transfer
Agreement from the Transferor pursuant to the terms thereof, to make
deposits to and withdrawals from the Collection Account, the Principal
Distribution Account and the Reserve Account and to pay the organizational,
start-up and transactional expenses of the Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholder any portion of the Trust Estate released from the lien
of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Transaction
Documents to which it is a party;
(e) to engage in other activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(f) subject to compliance with the Transaction Documents, to engage in
such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions to the Certificateholder
and the Noteholders.
The Owner Trustee is hereby authorized to engage in the foregoing activities on
behalf of the Issuer. Neither the Issuer nor the Owner Trustee on behalf of the
Issuer shall engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement, the
other Transaction Documents or the Statutory Trust Act.
SECTION 2.4. Appointment of the Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein and under the
Statutory Trust Act.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Owner
Trustee hereby acknowledges receipt in trust from the Transferor the sum of $1,
which shall constitute the initial Trust Estate and shall be deposited by the
Transferor in the Collection Account.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholder, subject to the
obligations of the Issuer under the Transaction
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Documents and under the Statutory Trust Act. It is the intention of the parties
hereto that the Issuer constitute a statutory trust under the Statutory Trust
Act and that this Agreement constitute the governing instrument of such
statutory trust. It is the intention of the parties hereto that, solely for
income and franchise tax purposes, the Issuer will be disregarded as an entity
separate from the Transferor, the Transferor will be disregarded as an entity
separate from VCI and the Notes will be characterized as debt. The parties agree
that, unless otherwise required by appropriate tax authorities, the Issuer will
not file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the characterization of the Issuer as an entity
separate from its owner. In the event that the Issuer is deemed to have more
than one beneficial owner for federal income tax purposes, the Issuer will file
returns, reports and other forms consistent with the characterization of the
Issuer as a partnership, and this Agreement shall be amended to include such
provisions as may be required under Subchapter K of the Internal Revenue Code of
1986, as amended. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Statutory Trust Act
with respect to accomplishing the purposes of the Issuer. The Owner Trustee
shall file the Certificate of Trust with the Secretary of State of the State of
Delaware as required by Section 3810(a) of the Statutory Trust Act.
Notwithstanding anything herein or in the Statutory Trust Act to the contrary,
it is the intention of the parties hereto that the Issuer constitute a "business
trust" within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders.
(a) The Administrator shall pay organizational expenses of the Issuer
as they may arise.
(b) No Certificateholder (including the Transferor) shall have any
personal liability for any liability or obligation of the Issuer.
SECTION 2.8. Title to the Trust Estate. Legal title to all the Trust Estate
shall be vested at all times in the Issuer as a separate legal entity, except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
SECTION 2.9. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Owner Trustee that, as of the
date hereof:
(a) Organization and Power. The Transferor is a limited liability
company duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all power and authority required to
carry on its business as it is now conducted. The Transferor has obtained
all necessary licenses and approvals in all jurisdictions where the failure
to do so would materially and adversely affect the business, properties,
financial condition or results of operations of the Transferor, taken as a
whole.
(b) Authorization and No Contravention. The execution, delivery and
performance by the Transferor of each Transaction Document to which it is a
party (i) have been duly authorized by all necessary limited liability
company action and (ii) do
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not violate or constitute a default under (A) any applicable law, rule or
regulation, (B) its organizational instruments or (C) any agreement,
contract, order or other instrument to which it is a party or its property
is subject and (iii) will not result in any Adverse Claim on any
Transaction Unit or Collection or give cause for the acceleration of any
indebtedness of the Transferor.
(c) No Consent Required. No approval, authorization or other action
by, or filing with, any Governmental Authority is required in connection
with the execution, delivery and performance by the Transferor of any
Transaction Document other than UCC filings and other than approvals and
authorizations that have previously been obtained and filings which have
previously been made.
(d) Binding Effect. Each Transaction Document to which the Transferor
is a party constitutes the legal, valid and binding obligation of the
Transferor enforceable against the Transferor in accordance with its terms,
except as limited by bankruptcy, insolvency, or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights generally and subject to general principles of equity.
(e) No Proceedings. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Transferor, threatened
against the Transferor which, either in any one instance or in the
aggregate, would result in any material adverse change in the business,
operations, financial condition, properties or assets of the Transferor, or
in any material impairment of the right or ability of the Transferor to
carry on its business substantially as now conducted, or in any material
liability on the part of the Transferor, or which would render invalid this
Agreement or the Transaction Units or the obligations of the Transferor
contemplated herein, or which would materially impair the ability of the
Transferor to perform under the terms of this Agreement or any other
Transaction Document.
SECTION 2.10. Situs of Issuer. The Issuer shall be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Issuer shall be located in the State of Delaware or the State of
New York. The Issuer shall not have any employees in any state; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee from
having employees within or without the State of Delaware. Payments will be
received by the Issuer only in Delaware or the State of New York and payments
will be made by the Issuer only from Delaware or the State of New York.
ARTICLE III
CERTIFICATE AND TRANSFER OF CERTIFICATE
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer and until
the issuance of the Certificate, the Transferor shall be the sole beneficiary of
the Issuer; and upon the issuance of the Certificate, the Transferor will no
longer be a beneficiary of the Issuer, except to the extent that the Transferor
is the Certificateholder.
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SECTION 3.2. Authentication of Certificate. Concurrently with the sale of
the Transaction SUBI Certificate to the Issuer pursuant to the SUBI Transfer
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Issuer, authenticated and delivered to or upon the written order
of the Transferor, signed by its chairman of the board, its president, its chief
financial officer, its chief accounting officer, any vice president, its
secretary, any assistant secretary, its treasurer or any assistant treasurer,
without further corporate action by the Transferor. The Certificate shall
represent 100% of the beneficial interest in the Issuer and shall be fully-paid
and non assessable.
SECTION 3.3. Form of the Certificate. The Certificate, upon original
issuance, will be issued in the form of a typewritten Certificate representing a
definitive Certificate and shall be registered in the name of "Volkswagen Auto
Lease Underwritten Funding, LLC" as the initial registered owner thereof. The
Owner Trustee shall execute and authenticate, or cause to be authenticated, the
definitive Certificate in accordance with the instructions of the Transferor.
SECTION 3.4. Registration of Certificates. The Owner Trustee shall maintain
at its office referred to in Section 2.2, or at the office of any agent
appointed by it, a register for the registration and transfer of the
Certificate.
SECTION 3.5. Transfer of Certificate. (a) The Certificateholder may assign,
convey or otherwise transfer all or any of its right, title and interest in the
Certificate; provided, that (i) the Rating Agency Condition is satisfied, (ii)
the Certificateholder provides, at its expense, to the Owner Trustee and the
Issuer an Opinion of Counsel stating that, in the opinion of such counsel, such
transfer will not cause the Issuer to be treated as a publicly traded
partnership for federal income tax purposes, and (iii) the Certificate (or any
interest therein) may not be acquired by or for the account of or with the
assets of a Benefit Plan. By accepting and holding the Certificate (or any
interest therein), the holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing the Certificate
(or any interest therein) on behalf of a Benefit Plan. Subject to the transfer
restrictions contained herein and in the Certificate, the Certificateholder may
transfer all or any portion of the beneficial interest in the Issuer evidenced
by such Certificate upon surrender thereof to the Owner Trustee accompanied by
the documents required by this Section. Such transfer may be made by the
registered Certificateholder in person or by his attorney duly authorized in
writing upon surrender of the Certificate to the Owner Trustee accompanied by a
written instrument of transfer and with such signature guarantees and evidence
of authority of the Persons signing the instrument of transfer as the Owner
Trustee may reasonably require. Promptly upon the receipt of such documents and
receipt by the Owner Trustee of the transferor's Certificate, the Owner Trustee
shall record the name of such transferee as a Certificateholder and its
percentage of beneficial interest in the Issuer in the Certificate register and
issue, execute and deliver to such Certificateholder a Certificate evidencing
such beneficial interest in the Issuer. In the event a transferor transfers only
a portion of its beneficial interest in the Issuer, the Owner Trustee shall
register and issue, to such transferor a new Certificate evidencing such
transferor's new percentage of beneficial interest in the issuer. Subsequent to
a transfer and upon the issuance of the new Certificate or Certificates, the
Owner Trustee shall cancel and destroy the Certificate surrendered to it in
connection with such transfer. The Owner Trustee may treat the Person in whose
name any Certificate is registered as the sole owner of the beneficial interest
in the Issuer evidenced by such Certificate.
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(b) As a condition precedent to any registration of transfer under
this Section 3.5, the Owner Trustee may require the payment of a sum
sufficient to cover the payment of any tax or taxes or other governmental
charges required to be paid in connection with such transfer.
(c) The Owner Trustee shall not be obligated to register any transfer
of a Certificate unless each of the transferor and the transferee have
certified to the Owner Trustee that such transfer does not violate any of
the transfer restrictions stated herein. The Owner Trustee shall not be
liable to any Person for registering any transfer based on such
certifications.
SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates. If (i) any
mutilated Certificate is surrendered to the Owner Trustee, or (ii) the Owner
Trustee receives evidence to its satisfaction that any Certificate has been
destroyed, lost or stolen, and upon proof of ownership satisfactory to the Owner
Trustee together with such security or indemnity as may be requested by the
Owner Trustee to save it harmless, the Owner Trustee shall execute and deliver a
new Certificate for the same percentage of beneficial interest in the Issuer as
the Certificate so mutilated, destroyed, lost or stolen, of like tenor and
bearing a different issue number, with such notations, if any, as the Owner
Trustee shall determine. Upon the issuance of any new Certificate under this
Section 3.6, the Issuer or Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate and any other
reasonable expenses (including the reasonable fees and expenses of the Issuer
and the Owner Trustee) connected therewith. Any duplicate Certificate issued
pursuant to this Section 3.6 shall constitute complete and indefeasible evidence
of ownership in the Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that the
Certificateholder has withheld consent or provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholder;
(c) the amendment, change or modification of the SUBI Transfer
Agreement or the Administration Agreement, except to cure any ambiguity or
defect or to amend or
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supplement any provision in a manner that would not materially adversely
affect the interests of the Certificateholder; or
(d) the appointment pursuant to the Indenture of a successor Indenture
Trustee or the consent to the assignment by the Note Registrar or, the
Indenture Trustee of its obligations under the Indenture or this Agreement,
as applicable.
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholder, to (a) except as expressly provided in the Transaction
Documents, sell the Collateral after the termination of the Indenture in
accordance with its terms, (b) remove the Administrator under the Administration
Agreement pursuant to Section 8 thereof or (c) appoint a successor Administrator
pursuant to Section 8 of the Administration Agreement. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholder.
SECTION 4.3. Action by Certificateholder with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer until one year and one day after the
Outstanding Amount of all the Notes has been reduced to zero and without the
prior written approval of the Certificateholder and the delivery to the Owner
Trustee by the Certificateholder of a certificate certifying that the
Certificateholder reasonably believes that the Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholder's Power. The
Certificateholder shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the
Transaction Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. To the extent that there is more than one
Certificateholder, any action which may be taken or consent or instructions
which may be given by the Certificateholders under this Agreement may be taken
by Certificateholders holding in the aggregate a percentage of the beneficial
interest in the Issuer equal to more than 50% of the beneficial interest in the
Issuer at the time of such action.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds. Distributions on the Certificate
shall be made in accordance with the provisions of the Indenture. Subject to the
lien of the Indenture, the Owner Trustee shall promptly distribute to the
Certificateholder all other amounts (if any) received by the Issuer or the Owner
Trustee in respect of the Trust Estate. After the Indenture has been discharged
with respect to the Collateral, the Owner Trustee shall distribute all amounts
received (if any) by the Issuer and the Owner Trustee in respect of the Trust
Estate at the direction of the Certificateholder.
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SECTION 5.2. Method of Payment. Subject to the Indenture, distributions
required to be made to the Certificateholder on any Payment Date and all amounts
received by the Issuer or the Owner Trustee on any other date that are payable
to the Certificateholder pursuant to this Agreement or any other Transaction
Document shall be made to the Certificateholder by wire transfer, in immediately
available funds, to the account of the Certificateholder designated by the
Certificateholder to the Owner Trustee and Indenture Trustee in writing.
SECTION 5.3. Sarbanes-Oxley Act. Notwithstanding anything to the contrary
herein or in any Transaction Document, the Owner Trustee shall not be required
to execute, deliver or certify in accordance with the provisions of the
Sarbanes-Oxley Act on behalf of the Trust or any other Person, any periodic
reports filed pursuant to the Exchange Act, or any other documents pursuant to
the Sarbanes-Oxley Act, as amended.
SECTION 5.4. Signature on Returns. Subject to Section 2.6, the
Certificateholder shall sign on behalf of the Issuer the tax returns of the
Issuer, unless applicable law requires the Owner Trustee to sign such documents,
in which case such documents shall be signed by the Owner Trustee at the written
direction of the Certificateholder.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Issuer is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Transaction Documents to which the Issuer is named as
a party and any amendment thereto, in each case, in such form as the Transferor
shall approve, as evidenced conclusively by the Owner Trustee's execution
thereof, to direct the Indenture Trustee to authenticate and deliver Class A-1
Notes in the aggregate principal amount of $[______], Class A-2 Notes in the
aggregate principal amount of $[__________], Class A-3 Notes in the aggregate
principal amount of $[__________] and Class A-4 Notes in the aggregate principal
amount of $[__________]. In addition to the foregoing, the Owner Trustee is
authorized to take all actions required of the Issuer pursuant to the
Transaction Documents. The Owner Trustee is further authorized from time to time
to take such action as the Transferor or the Administrator recommends or directs
in writing with respect to the Transaction Documents, except to the extent that
this Agreement expressly requires the consent of the Certificateholder for such
action.
SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents and to
administer the Issuer in the interest of the Certificateholder, subject to the
terms of the Transaction Documents, and in accordance with the provisions of
this Agreement and the other Transaction Documents. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Issuer or the Owner Trustee hereunder or under any
Transaction Document, and the Owner Trustee shall not be liable for the default
or failure of the Administrator to carry out its obligations under the
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Administration Agreement and shall have no duty to monitor the performance of
the Administrator or any other Person under the Administration Agreement or any
other document. The Owner Trustee shall have no obligation to administer,
service or collect the Transaction Units or the Transaction SUBI or to maintain,
monitor or otherwise supervise the administration, servicing or collection of
the Transaction Units or the Transaction SUBI. The Owner Trustee shall not be
required to perform any of the obligations of the Issuer under any Transaction
Document that are required to be performed by the Servicer, the Transferor, the
Administrator or the Indenture Trustee.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Certificateholder may, by written
instruction, direct the Owner Trustee in the management of the Issuer. Such
direction may be exercised at any time by written instruction of the
Certificateholder pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonably determined or been advised by counsel that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to
the terms hereof or of any Transaction Document or is otherwise contrary to
law and a copy of such opinion has been provided to the Transferor and the
Administrator.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Transaction Document or is unsure as to the application of any
provision of this Agreement or any Transaction Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholder requesting instruction as to the
course of action to be adopted or application of such provision, and to the
extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any written instruction of the Certificateholder received,
the Owner Trustee shall not be liable on account of such action or inaction
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or
the Transaction Documents, as it shall deem to be in the best interests of
the Certificateholder, and shall have no liability to any Person for such
action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Issuer or the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee
9
pursuant to Section 6.3; and no implied duties or obligations shall be read into
this Agreement or any Transaction Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or Adverse Claim granted to it hereunder
or to prepare or file any Commission filing for the Issuer or to record this
Agreement or any Transaction Document. [__________] nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any Adverse Claims on any part of the Trust Estate that result from
actions by, or claims against, [__________] that are not related to the
ownership or the administration of the Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Issuer set forth in Section 2.3 or
(b) that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would (i) affect the treatment of the Notes as indebtedness for federal income,
state and local income and franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or state income or franchise
tax purposes or (iii) cause the Issuer or any portion thereof to be treated as
an association or publicly traded partnership taxable as a corporation for
federal income, state and local income or franchise tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all moneys actually received by it constituting part of the
Trust Estate upon the terms of the Transaction Documents and this Agreement. The
Owner Trustee shall not be personally liable or accountable hereunder or under
any Transaction Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3 expressly made by
[__________] in its individual capacity, (iii) for liabilities arising from the
failure of [__________] to perform obligations expressly undertaken by it in the
last sentence of Section 6.4 or (iv) for taxes, fees or other charges on, based
on or measured by, any fees, commissions or compensation received by the Owner
Trustee.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all
10
reports, notices, requests, demands, certificates, financial statements and any
other instruments furnished to the Owner Trustee under the Transaction
Documents.
SECTION 7.3. Representations and Warranties. [__________] hereby represents
and warrants to the Transferor for the benefit of the Certificateholder, that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Owner Trustee, enforceable against the Owner Trustee in accordance
with its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors of
banks generally and to equitable limitations on the availability of
specific remedies.
(d) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws.
SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur
no personal liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer,
secretary or other Authorized Officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of
them, but the Owner Trustee shall not be
11
personally liable for the conduct or misconduct of such agents, custodians,
nominees (including persons acting under a power of attorney) or attorneys
selected with reasonable care and (ii) may consult with counsel,
accountants and other skilled persons knowledgeable in the relevant area to
be selected with reasonable care and employed by it at the expense of the
Issuer. The Owner Trustee shall not be personally liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, [__________] acts solely as
the Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes. The
Owner Trustee may deal with the Transferor, the Indenture Trustee, the
Administrator and their respective Affiliates in banking transactions with the
same rights as it would have if it were not the Owner Trustee, and the
Transferor, the Indenture Trustee, the Administrator and their respective
Affiliates may maintain normal commercial banking relationships with the Owner
Trustee and its Affiliates.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. The Owner Trustee's Fees and Expenses. The Issuer shall cause
the Administrator to agree to pay to [__________] pursuant to the Administration
Agreement from time to time compensation for all services rendered by
[__________] under this Agreement pursuant to a fee letter between the
Administrator and the Owner Trustee (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust). The Administrator, pursuant to the Administration Agreement and the fee
letter between the Administrator and the Owner Trustee, shall reimburse
[__________] upon its request for all reasonable expenses, disbursements and
advances incurred or made by [__________] in accordance with any provision of
this Agreement (including the reasonable compensation, expenses and
disbursements of such agents and counsel as [__________] may employ in
connection with the exercise and performance of its rights and its duties
hereunder), except any such expense may be attributable to its willful
misconduct, gross negligence or bad faith.
SECTION 8.2. Indemnification. The Transferor shall cause the Administrator
to agree to indemnify [__________] in its individual capacity and as trustee and
its successors, assigns, directors, officers, employees and agents (the
"Indemnified Parties") from and against, any and all loss, liability, expense,
tax, penalty or claim (including reasonable legal fees and expenses) of any kind
and nature whatsoever which may at any time be imposed on, incurred by, or
asserted against [__________] in its individual capacity and as trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Transaction Documents, the Trust Estate, the administration of the Trust Estate
or the action or inaction of [__________] hereunder; provided, however, that
neither the Transferor nor the Administrator shall be liable for or required to
indemnify [__________]
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from and against any of the foregoing expenses arising or resulting from (i)
[__________]'s own willful misconduct, bad faith or gross negligence, (ii) the
inaccuracy of any representation or warranty contained in Section 7.3 expressly
made by [__________] in its individual capacity, (iii) liabilities arising from
the failure of [__________] to perform obligations expressly undertaken by it in
the last sentence of Section 6.4 or (iv) taxes, fees or other charges on, based
on or measured by, any fees, commissions or compensation received by the Owner
Trustee.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII and the Administration Agreement shall be
deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. The Issuer shall wind-up and
dissolve, and this Agreement (other than Article VIII) shall terminate, upon the
later of (a) the final distribution by the Issuer of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms of the
Indenture, the Origination Trust Documents and Article V and (b) the discharge
of the Indenture in accordance with Article IV of the Indenture. The bankruptcy,
liquidation, dissolution, death or incapacity of the Certificateholder shall not
(x) operate to terminate this Agreement or the Issuer, nor (y) entitle the
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or Trust Estate nor (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
SECTION 9.2. Dissolution of the Issuer. Upon dissolution of the Issuer, the
Administrator shall wind up the business and affairs of the Issuer as required
by Section 3808 of the Statutory Trust Act. Upon the satisfaction and discharge
of the Indenture, and receipt of a certificate from the Indenture Trustee
stating that all Noteholders have been paid in full and that the Indenture
Trustee is aware of no claims remaining against the Issuer in respect of the
Indenture and the Notes, the Administrator, in the absence of actual knowledge
of any other claim against the Issuer, shall be deemed to have made reasonable
provision to pay all claims and obligations (including conditional, contingent
or unmatured obligations) for purposes of Section 3808(e) of the Statutory Trust
Act and upon the written direction of the Certificateholder the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Delaware Secretary of State in accordance with the
provisions of Section 3810 of the Statutory Trust Act, at which time the Issuer
shall terminate and this Agreement (other than Article VIII) shall be of no
further force or effect.
SECTION 9.3. Limitations on Termination. Except as provided in Section 9.1,
neither the Transferor nor the Certificateholder shall be entitled to revoke or
terminate the Issuer.
SECTION 9.4. Purchase of the Transaction SUBI Certificate. The Transferor
shall have the right at its option (the "Optional Purchase") to purchase the
Transaction SUBI Certificate from the Issuer on any Payment Date upon 30 days'
prior notice to the Administrator or the Issuer if, either before or after
giving effect to any payment of principal required to be
13
made on such Payment Date, the Outstanding Note Balance is less than or equal to
10% of the Initial Note Balance. The purchase price for the Transaction SUBI
Certificate shall equal the Note Balance, together with accrued interest thereon
up to but not including the Redemption Date (the "Optional Purchase Price"),
which amount shall be deposited by the Transferor into the Collection Account on
the Redemption Date. If the Transferor exercises the Optional Purchase, the
Notes shall be redeemed and in each case in whole but not in part on the related
Payment Date for the Redemption Price.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for the Owner Trustee. The Owner
Trustee shall at all times be a bank (i) authorized to exercise corporate trust
powers, (ii) that has, or has a direct or indirect parent that has, a combined
capital and surplus of at least $50,000,000 and (iii) subject to supervision or
examination by Federal or state authorities. If such bank shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Owner Trustee shall at all times be an institution
satisfying the provisions of Section 3807(a) of the Statutory Trust Act. In case
at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of the Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Transferor, the Administrator, the
Servicer, the Indenture Trustee and the Certificateholder. Upon receiving such
notice of resignation, the Transferor and the Administrator, acting jointly,
shall promptly appoint a successor Owner Trustee which satisfies the eligibility
requirements set forth in Section 10.1 by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee and
one copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee; provided, however, that such right to appoint or to petition for the
appointment of any such successor shall in no event relieve the resigning Owner
Trustee from any obligations otherwise imposed on it under the Transaction
Documents until such successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by the Transferor or the Administrator, or if at any time the
Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the
14
Transferor or the Administrator may remove the Owner Trustee. If the Transferor
or the Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Transferor and the Administrator, acting
jointly, shall promptly appoint a successor Owner Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee and shall
pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Transferor shall provide (or shall cause to be
provided) notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Transferor, the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as the
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Transferor and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Transferor shall mail (or shall cause to be mailed) notice of
the successor of such Owner Trustee to the Certificateholder, Indenture Trustee,
the Noteholders and each of the Rating Agencies. If the Transferor shall fail to
mail (or cause to be mailed) such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Transferor.
SECTION 10.4. Merger or Consolidation of the Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 10.1; and
provided further that the Owner
15
Trustee shall mail notice of such merger or consolidation to the Transferor, the
Administrator and the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee to act
as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Issuer, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Issuer or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording
16
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and copies thereof given to the Transferor and the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Supplements and Amendments. (a) Any term or provision of this
Agreement may be amended by the Transferor, without the consent of the Indenture
Trustee, any Noteholder, the Administrator, the Issuer or the Owner Trustee;
provided that (i) any amendment that materially and adversely affects the
interests of the Noteholders shall require the consent of Noteholders evidencing
not less than a majority of the aggregate outstanding principal amount of the
Outstanding Notes, voting as a single class, and (ii) any amendment that
materially and adversely affects the interests of the Administrator, the
Certificateholders, the Indenture Trustee or the Owner Trustee shall require the
prior written consent of the Persons whose interests are materially and
adversely affected. An amendment shall be deemed not to materially and adversely
affect the interests of the Noteholders if the Rating Agency Condition is
satisfied with respect to such amendment. The consent of the Administrator or
the Certificateholders shall be deemed to have been given if the Servicer does
not receive a written objection from such Person within 10 Business Days after a
written request for such consent shall have been given.
(b) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Note, or delay the Final Scheduled
Payment Date of any Note without the consent of the Holder of such Note, or
(ii) reduce the percentage of the aggregate outstanding principal amount of
the Outstanding Notes, the Holders of which are required to consent to any
matter without the consent of the Holders of at least the percentage of the
aggregate outstanding principal amount of the Outstanding Notes which were
required to consent to such matter before giving effect to such amendment.
(c) Notwithstanding anything herein to the contrary, any term or
provision of this Agreement may be amended by the parties hereto without
the consent of any of the Noteholders or any other Person to add, modify or
eliminate any provisions as may be necessary or advisable in order to
comply with or obtain more favorable treatment under or with respect to any
law or regulation or any accounting rule or principle (whether now or in
the future in effect); it being a condition to any such amendment that the
Rating Agency Condition shall have been satisfied.
(d) It shall not be necessary for the consent of any Person pursuant
to this Section for such Person to approve the particular form of any
proposed amendment, but it shall be sufficient if such Person consents to
the substance thereof.
17
(e) Prior to the execution of any amendment to this Agreement, the
Transferor shall provide each Rating Agency with written notice of the
substance of such amendment. No later than 10 Business Days after the
execution of any amendment to this Agreement, the Transferor shall furnish
a copy of such amendment to each Rating Agency, the Origination Trustees,
the Owner Trustee and the Indenture Trustee.
(f) Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an opinion of
counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder. The
Certificateholder shall not have legal title to any part of the Trust Estate.
The Certificateholder shall be entitled to receive distributions with respect to
its undivided beneficial interest therein only in accordance with Articles V and
IX. No transfer, by operation of law or otherwise, of any right, title or
interest of the Certificateholder to and in its ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
Administrator, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested, if to the Owner Trustee, addressed to
its Corporate Trust Office; if to the Transferor, addressed to 3800 Hamlin Road,
Auburn Hills, Michigan 48326, Attention: Treasurer with a copy to 3800 Hamlin
Road, Auburn Hills, Michigan 48326, Attention: General Counsel; if to the
Administrator, addressed to 3800 Hamlin Road, Auburn Hills, Michigan 48326,
Attention: Treasurer with a copy to 3800 Hamlin Road, Auburn Hills, Michigan
48326, Attention: General Counsel; or, as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
18
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee and its successors and the Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Certificateholder shall bind the successors and assigns of the
Certificateholder.
SECTION 11.8. No Petition. Each of the Owner Trustee (in its individual
capacity and as the Owner Trustee), by entering into this Agreement, the
Transferor, the Certificateholder, by accepting the Certificate, and the
Indenture Trustee and each Noteholder or Note Owner by accepting the benefits of
this Agreement, hereby covenants and agrees that prior to the date which is one
year and one day after payment in full of all obligations under each Financing
(i) such party shall not authorize any Bankruptcy Remote Party to commence a
voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy
Remote Party or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect in any jurisdiction or seeking the appointment of an
administrator, a trustee, receiver, liquidator, custodian or other similar
official with respect to such Bankruptcy Remote Party or any substantial part of
its property or to consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against such Bankruptcy Remote Party, or to make a general assignment
for the benefit of any party hereto or any other creditor of such Bankruptcy
Remote Party, and (ii) such Person shall not commence, join or institute
against, with any other Person in, any proceeding against such Bankruptcy Remote
Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.
SECTION 11.9. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.11. Each SUBI Separate; Assignees of SUBI. The Owner Trustee (in
its individual capacity and as the Owner Trustee), the Transferor, the
Certificateholder, by accepting
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a Certificate, and the Indenture Trustee and each Noteholder or Note Owner by
accepting the benefits of this Agreement, hereby intends and agrees that (a) the
Transaction SUBI is a separate series of the Origination Trust as provided in
Section 3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq., (b)(i) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Transaction
SUBI or the Transaction SUBI Portfolio shall be enforceable against the
Transaction SUBI Portfolio only, and not against any Other SUBI Assets or the
UTI Portfolio and (ii) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to any Other SUBI,
any Other SUBI Portfolio, the UTI or the UTI Portfolio shall be enforceable
against such Other SUBI Portfolio or the UTI Portfolio only, as applicable, and
not against the Transaction SUBI or any Transaction SUBI Assets, (c) except to
the extent required by law, UTI Assets or SUBI Assets with respect to any SUBI
(other than the Transaction SUBI) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the
Transaction SUBI in respect of such claim, (d)(i) no creditor or holder of a
claim relating to the Transaction SUBI or the Transaction SUBI Portfolio shall
be entitled to maintain any action against or recover any assets allocated to
the UTI or the UTI Portfolio or any Other SUBI or the assets allocated thereto,
and (ii) no creditor or holder of a claim relating to the UTI, the UTI Portfolio
or any SUBI other than the Transaction SUBI or any SUBI Assets other than the
Transaction SUBI Portfolio shall be entitled to maintain any action against or
recover any assets allocated to the Transaction SUBI, and (e) any purchaser,
assignee or pledgee of an interest in the Transaction SUBI or the Transaction
SUBI Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and (ii) execute an agreement for the benefit
of each holder, assignee or pledgee from time to time of the UTI or UTI
Certificate and any Other SUBI or Other SUBI Certificate, to release all claims
to the assets of the Origination Trust allocated to the UTI Portfolio and each
Other SUBI Portfolio and in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
SECTION 11.12. Waiver of Jury Trial. To the extent permitted by applicable
law, each party hereto irrevocably waives all right of trial by jury in any
action, proceeding or counterclaim based on, or arising out of, under or in
connection with this Agreement, any other Transaction Document, or any matter
arising hereunder or thereunder.
SECTION 11.13. Information Requests. The parties hereto shall provide any
information reasonably requested by the Servicer, the Issuer, the Transferor or
any of their Affiliates at the expense of the Servicer, the Issuer, the
Transferor or any of their Affiliates, as applicable, in order to comply with or
obtain more favorable treatment under any current or future law, rule,
regulation, accounting rule or principle.
SECTION 11.14. Information to Be Provided by the Owner Trustee. For as long
as the Issuer is requested to report under the Exchange Act, the Owner Trustee
shall (i) on or before the fifth Business Day of each month, provide to the
Transferor, in writing, such information regarding the Owner Trustee as is
requested for the purpose of compliance with Item 1117 of Regulation AB;
provided, however, that the Owner Trustee shall not be required to provide such
information in the event that there has been no change to the information
previously provided by
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the Owner Trustee to the Transferor, and (ii) as promptly as practicable
following notice to or discovery by a Responsible Officer of the Owner Trustee
of any changes to such information, provide to the Transferor, in writing, such
updated information.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized as of the
day and year first above written.
[______________________]
By:
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Name:
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Title:
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Trust Agreement
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VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:
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Name:
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Title:
---------------------------------
By:
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Name:
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Title:
---------------------------------
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EXHIBIT A
FORM OF CERTIFICATE
NUMBER [_____]% BENEFICIAL INTEREST
R-[___]
VOLKSWAGEN AUTO LEASE TRUST 20[__]-[__]
CERTIFICATE
Evidencing the [_____]% beneficial interest in all of the assets of the
Issuer (as defined below) which includes the Transaction SUBI (as defined below)
sold to the Issuer by the Transferor.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC, VW CREDIT, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD
(IN THE INITIAL ACQUISITION OR THROUGH A TRANSFER) BY OR FOR THE ACCOUNT OF OR
WITH THE ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"))
WHETHER OR NOT SUBJECT TO ERISA, (B) A PLAN DESCRIBED IN SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (C) ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE PLAN ASSETS OF THE FOREGOING (EACH, A "BENEFIT PLAN").
THIS CERTIFIES THAT [____________________________] is the registered owner
of a [____]% nonassessable, fully-paid, beneficial interest in certain
distributions of VOLKSWAGEN AUTO LEASE TRUST 20[__]-[__] (the "Issuer") formed
by Volkswagen Auto Lease Underwritten Funding, LLC, a Delaware limited liability
company, as depositor (the "Transferor").
The Issuer was created pursuant to a Trust Agreement dated as of
[__________], [____], as amended and restated as of [___________], [____] (as
further amended, modified or supplemented from time to time, the "Trust
Agreement"), between the Transferor and [__________], as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them
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in the Indenture, dated as of [__________], [____] (as amended, modified or
supplemented from time to time, the "Indenture"), between the Issuer and
[______________], as indenture trustee.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which such
holder is bound. The provisions and conditions of the Trust Agreement are hereby
incorporated by reference as though set forth in their entirety herein.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Indenture and the Trust Agreement,
as applicable.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
By accepting this Certificate, the Certificateholder hereby covenants and
agrees that prior to the date which is one year and one day after payment in
full of all obligations under each Financing (i) such Person shall not authorize
such Bankruptcy Remote Party to commence a voluntary winding-up or other
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to such Bankruptcy Remote Party or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii)
such Person shall not commence or join with any other Person in commencing any
proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.
By accepting and holding this Certificate (or any interest herein), the
holder hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing on behalf of a Benefit Plan.
It is the intention of the parties to the Trust Agreement that, solely for
income, franchise and value added tax purposes, the Issuer will be disregarded
as an entity separate from the Transferor, the Transferor will be disregarded as
an entity separate from VCI and the Notes will be characterized as debt. By
accepting this Certificate, the Certificateholder agrees to take no action
inconsistent with the foregoing intended tax treatment.
By accepting this Certificate, the Certificateholder acknowledges that this
Certificate represents a beneficial interest in the Issuer only and does not
represent interests in or obligations
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of the Transferor, the Servicer, the Administrator, the Owner Trustee, the
Indenture Trustee or any of their respective Affiliates and no recourse may be
had against such parties or their assets, except as expressly set forth or
contemplated in this Certificate, the Trust Agreement or any other Transaction
Document.
The Certificateholder hereby intends and agrees that (a) the Transaction
SUBI is a separate series of the Origination Trust as provided in Section
3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section
3801 et seq., (b)(i) the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to the Transaction SUBI or the
Transaction SUBI Portfolio shall be enforceable against the Transaction SUBI
Portfolio only, and not against any Other SUBI Assets or the UTI Portfolio and
(ii) the debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to any Other SUBI, any Other SUBI Portfolio,
the UTI or the UTI Portfolio shall be enforceable against such Other SUBI
Portfolio or the UTI Portfolio only, as applicable, and not against the
Transaction SUBI or any Transaction SUBI Assets, (c) except to the extent
required by law, UTI Assets or SUBI Assets with respect to any SUBI (other than
the Transaction SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Transaction SUBI in
respect of such claim, (d)(i) no creditor or holder of a claim relating to the
Transaction SUBI or the Transaction SUBI Portfolio shall be entitled to maintain
any action against or recover any assets allocated to the UTI or the UTI
Portfolio or any Other SUBI or the assets allocated thereto, and (ii) no
creditor or holder of a claim relating to the UTI, the UTI Portfolio or any SUBI
other than the Transaction SUBI or any SUBI Assets other than the Transaction
SUBI Portfolio shall be entitled to maintain any action against or recover any
assets allocated to the Transaction SUBI, and (e) any purchaser, assignee or
pledgee of an interest in the Transaction SUBI or the Transaction SUBI
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9 of
the Origination Trust Agreement, and execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any Other SUBI or Other SUBI Certificate, to release all claims to the
assets of the Origination Trust allocated to the UTI and each Other SUBI
Portfolio and in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each Other SUBI Portfolio.
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IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
VOLKSWAGEN AUTO LEASE TRUST 20[__]-[__]
BY: [__________], not in its individual
capacity, but solely as the Owner
Trustee
Dated:
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By:
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OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
[__________], as the Owner Trustee
By:
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Authenticating Agent
By:
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Authorized Signatory
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