EXHIBIT 10.7
VOLKSWAGEN AUTO LEASE TRUST 2002-A
TRUST AGREEMENT
BETWEEN
VOLKSWAGEN AUTO LEASE UNDERWRITTEN FUNDING, LLC,
AS THE DEPOSITOR
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS THE OWNER TRUSTEE
DATED AS OF NOVEMBER [ ], 2002
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 Property....................................3
SECTION 2.9. Representations and Warranties of the Transferor...............3
ARTICLE III CERTIFICATE AND TRANSFER OF CERTIFICATE...................................4
SECTION 3.1. Initial Ownership..............................................4
SECTION 3.2. Authentication of Certificate..................................4
SECTION 3.3. Form of the Certificate........................................4
SECTION 3.4. Transfer of Certificate........................................4
ARTICLE IV ACTIONS BY OWNER TRUSTEE..................................................5
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters.........5
SECTION 4.2. Action by Certificateholder with Respect to Certain
Matters........................................................5
SECTION 4.3. Action by Certificateholder with Respect to Bankruptcy.........5
SECTION 4.4. Restrictions on Certificateholder's Power......................5
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................................6
SECTION 5.1. Application of Trust Funds.....................................6
SECTION 5.2. Method of Payment..............................................6
SECTION 5.3. Xxxxxxxx-Xxxxx Act.............................................6
SECTION 5.4. Signature on Returns...........................................6
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.....................................6
SECTION 6.1. General Authority..............................................6
SECTION 6.2. General Duties.................................................7
SECTION 6.3. Action upon Instruction........................................7
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(continued)
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SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions...................................................8
SECTION 6.5. No Action Except under Specified Documents or
Instructions...................................................8
SECTION 6.6. Restrictions...................................................8
ARTICLE VII CONCERNING OWNER TRUSTEE..................................................8
SECTION 7.1. Acceptance of Trusts and Duties................................8
SECTION 7.2. Furnishing of Documents........................................9
SECTION 7.3. Representations and Warranties.................................9
SECTION 7.4. Reliance; Advice of Counsel....................................9
SECTION 7.5. Not Acting in Individual Capacity.............................10
SECTION 7.6. The Owner Trustee May Own Notes...............................10
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................10
SECTION 8.1. The Owner Trustee's Fees and Expenses.........................10
SECTION 8.2. Indemnification...............................................11
SECTION 8.3. Payments to the Owner Trustee.................................11
ARTICLE IX TERMINATION OF TRUST AGREEMENT...........................................11
SECTION 9.1. Termination of Trust Agreement................................11
SECTION 9.2. Purchase of the Transaction SUBI Certificate.................11
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES...................12
SECTION 10.1. Eligibility Requirements for the Owner Trustee................12
SECTION 10.2. Resignation or Removal of the Owner Trustee...................12
SECTION 10.3. Successor Owner Trustee.......................................13
SECTION 10.4. Merger or Consolidation of the Owner Trustee..................13
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.................14
ARTICLE XI MISCELLANEOUS............................................................15
SECTION 11.1. Supplements and Amendments....................................15
SECTION 11.2. No Legal Title to Trust Estate in Certificateholder...........16
SECTION 11.3. Limitations on Rights of Others...............................16
SECTION 11.4. Notices.......................................................16
SECTION 11.5. Severability..................................................17
SECTION 11.6. Separate Counterparts.........................................17
SECTION 11.7. Successors and Assigns........................................17
SECTION 11.8. No Petition...................................................17
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SECTION 11.9. Headings......................................................17
SECTION 11.10. GOVERNING LAW.................................................17
SECTION 11.11. Each SUBI Separate; Assignees of SUBI.........................17
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Transferor Certificate
Exhibit C Form of Transferee Certificate
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TRUST AGREEMENT
This TRUST AGREEMENT is made as of November [ ], 2002 (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 U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, 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 between
the Issuer (as defined below) and The Bank of New York, as indenture trustee,
dated as of November [ ], 2002, as the same may be amended, modified or
supplemented from time to time.
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 hereby shall be known as
"Volkswagen Auto Lease Trust 2002-A" (the "Issuer"), in which name the Owner
Trustee may conduct the business of such trust, make and execute contracts and
other instruments on behalf of such trust and xxx and be sued.
SECTION 2.2. Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholder,
Transferor and the Administrator.
SECTION 2.3. Purposes and Powers. The purpose of the Issuer is, and the
Owner Trustee 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 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 those 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 or the
other Transaction Documents.
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.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The Owner
Trustee hereby acknowledges receipt in trust from the Transferor, as of the date
hereof, of the sum of $1, which shall constitute the initial Trust Estate and
shall be deposited 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. It is the intention of the parties hereto that the Issuer constitute
a common law trust under the common laws of the state of Delaware. 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.
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 Property. Legal title to all the Trust
Estate shall be vested at all times in the Issuer, 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:
(a) Existence and Power. The Transferor is a Delaware 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 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.
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(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.
ARTICLE III
CERTIFICATE AND TRANSFER OF CERTIFICATE
SECTION 3.1. Initial Ownership. Upon the formation of the Issuer by the
contribution by the Transferor pursuant to Section 2.5 and until the issuance of
the Certificate, the Transferor shall be the sole beneficiary of the Issuer.
SECTION 3.2. Authentication of Certificate. Concurrently with the
initial sale of the Trust Property 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. Subject to the Indenture,
the Certificate shall represent 100% of the beneficial interest in the Issuer.
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. Transfer of Certificate. The Certificateholder may assign,
convey or otherwise transfer all or any of its right, title and interest in the
Certificate; provided, that (a) the Rating Agency Condition is satisfied, (b)
such transfer will not cause the Issuer to be treated as a publicly traded
partnership for federal income tax purposes, and (c) such transfer will not
cause the assets of the Issuer to be deemed "plan assets" as defined in 29
C.F.R. Section 2510.3-101.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Owners 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 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, (b)
remove the Administrator under the Administration Agreement pursuant to Section
10 thereof or (c) appoint a successor Administrator pursuant to Section 10 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 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 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.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Application of Trust Funds. Distributions on the
Certificate shall be made in accordance with the provisions of the Indenture.
Subject to the lien of the Indenture, the Owner Trustee shall promptly
distribute to the Certificateholder all other amounts (if any) received by the
Issuer or the Owner Trustee in respect of the Trust Estate. After the Indenture
has been discharged with respect to the Collateral, the Owner Trustee shall
distribute all amounts received (if any) by the Issuer and the Owner Trustee in
respect of the Trust Estate at the direction of the Certificateholder.
SECTION 5.2. Method of Payment. Subject to the Indenture, distributions
required to be made to the Certificateholder on any Payment Date and all amounts
received by the Issuer or the Owner Trustee on any other date that are payable
to the Certificateholder pursuant to this Agreement or any other Transaction
Document shall be made to the Certificateholder by wire transfer, in immediately
available funds, to the account of the Certificateholder designated by the
Certificateholder to the Owner Trustee and Indenture Trustee in writing.
SECTION 5.3. Xxxxxxxx-Xxxxx 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
Xxxxxxxx-Xxxxx Act of 2002 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 Xxxxxxxx-Xxxxx Act of 2002, 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 or
the Owner Trustee 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 or the Owner Trustee 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, and at the written
direction of the Transferor, to direct the Indenture Trustee to authenticate and
deliver Class A-1 Notes in the aggregate principal amount of $240,000,000, Class
A-2 Notes in the aggregate principal amount of $405,000,000, Class A-3 Notes in
the aggregate principal amount of $545,000,000 and Class A-4 Notes in the
aggregate principal amount of $310,000,000. In addition to the foregoing, the
Owner Trustee is authorized to take all actions required of the Owner Trustee
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
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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
Lien of the Indenture, 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 Owner Trustee hereunder or under any Transaction Document, and
the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement
and shall have no duty to monitor the performance of the Administrator or any
other Person under the Administration Agreement or any other document. The Owner
Trustee shall have no obligation to administer, service or collect the
Transaction Units or the Transaction SUBI or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Transaction Units
or the Transaction SUBI. The Owner Trustee shall not be required to perform any
of the obligations of the Issuer under any Transaction Document that are
required to be performed by the Servicer, the Transferor, the Administrator or
the Indenture Trustee.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Transaction Documents, the Certificateholder may, by written
instruction, direct the Owner Trustee in the management of the Issuer. Such
direction may be exercised at any time by written instruction of the
Certificateholder pursuant to Article IV.
(a) 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.
(b) 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
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period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Transaction Documents, as it shall deem to be in the
best interests of the Certificateholder, and shall have no liability to
any Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Issuer or the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Transaction Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Adverse Claim granted to it hereunder or to prepare or file
any Commission filing for the Issuer or to record this Agreement or any
Transaction Document. U.S. Bank Delaware nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any Adverse Claims on any part of the Trust Estate that result from
actions by, or claims against, U.S. Bank Delaware that are not related to the
ownership or the administration of the Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Issuer set forth in Section
2.3 or (b) that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, would (i) affect the treatment of the Notes as indebtedness for federal
income, state and local income and franchise tax purposes, (ii) be deemed to
cause a taxable exchange of the Notes for federal income or state income or
franchise tax purposes or (iii) cause the Issuer or any portion thereof to be
treated as an association or publicly traded partnership taxable as a
corporation for federal income, state and local income or franchise tax
purposes. The Certificateholder shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys
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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
gross negligence, (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by U.S. Bank Delaware in its
individual capacity, (iii) for liabilities arising from the failure of U.S. Bank
Delaware to perform obligations expressly undertaken by it in the last sentence
of Section 6.4 or (iv) for taxes, fees or other charges on, based on or measured
by, any fees, commissions or compensation received by the Owner Trustee.
SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Transaction Documents.
SECTION 7.3. Representations and Warranties. U.S. Bank Delaware hereby
represents and warrants to the Transferor for the benefit of the
Certificateholder, that:
(a) It is a national banking association duly organized and
validly existing in good standing under the federal laws of the United
States 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
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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.
(a) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or
the Transaction Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with
any of them, but the Owner Trustee shall not be personally liable for
the conduct or misconduct of such agents, custodians, nominees
(including persons acting under a power of attorney) or attorneys
selected with reasonable care and (ii) may consult with counsel,
accountants and other skilled persons knowledgeable in the relevant area
to be selected with reasonable care and employed by it at the expense of
the Issuer. The Owner Trustee shall not be personally liable for
anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or
other such persons.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, U.S. Bank Delaware
acts solely as the Owner Trustee hereunder and not in its individual capacity
and all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Transaction Document shall
look only to the Trust Estate for payment or satisfaction thereof.
SECTION 7.6. The Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes. The
Owner Trustee may deal with the Transferor, the Indenture Trustee, the
Administrator and their respective Affiliates in banking transactions with the
same rights as it would have if it were not the Owner Trustee, and the
Transferor, the Indenture Trustee, the Administrator and their respective
Affiliates may maintain normal commercial banking relationships with the Owner
Trustee and its Affiliates.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1. The Owner Trustee's Fees and Expenses. The Issuer shall
cause the Administrator to pay to U.S. Bank Delaware pursuant to the
Administration Agreement from time to time compensation for all services
rendered by U.S. Bank Delaware under this Agreement pursuant to a fee letter
between the Administrator and the Owner Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Administrator, pursuant to the Administration Agreement,
shall reimburse U.S. Bank Delaware upon its request for all reasonable expenses,
disbursements and advances incurred or made by U.S. Bank Delaware in accordance
with any provision of this Agreement (including the reasonable compensation,
expenses and disbursements of such agents and counsel as U.S. Bank Delaware may
employ in connection with the exercise and
10
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. Transferor shall cause the Administrator
to indemnify U.S. Bank Delaware in its individual capacity and as trustee and
its successors, assigns, directors, officers, employees and agents (the
"Indemnified Parties") from and against, any and all loss, liability and
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 U.S. Bank Delaware in its individual capacity and as trustee
or any Indemnified Party in any way relating to or arising out of this
Agreement, the Transaction Documents, the Trust Estate, the administration of
the Trust Estate or the action or inaction of U.S. Bank Delaware hereunder;
provided, however, that neither the Transferor nor the Administrator shall be
liable for or required to indemnify U.S. Bank Delaware from and against any of
the foregoing expenses arising or resulting from (i) its own willful misconduct,
bad faith or gross negligence, (ii) the inaccuracy of any representation or
warranty contained in Section 7.3 expressly made by U.S. Bank Delaware in its
individual capacity, (iii) liabilities arising from the failure of U.S. Bank
Delaware to perform obligations expressly undertaken by it in the last sentence
of Section 6.4 or (iv) taxes, fees or other charges on, based on or measured by,
any fees, commissions or compensation received by the Owner Trustee.
SECTION 8.3. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VIII and the Administration Agreement
shall be deemed not to be a part of the Trust Estate immediately after such
payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Issuer shall terminate and be of no further force or
effect, upon the final distribution by the Owner Trustee 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; provided, however,
that in no event shall the Issuer created by this Agreement continue beyond the
expiration of 110 years from the date of this Agreement. 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.
(a) Except as provided in clause (a), neither the Transferor nor
the Certificateholder shall be entitled to revoke or terminate the
Issuer.
SECTION 9.2. 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
if, either before or after giving effect to any payment of principal required to
be made on such Payment Date, the Outstanding Note Balance
11
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 by U.S. Bank Delaware 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) having 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. 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 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
resigning Owner Trustee from any obligations otherwise imposed on it under the
Transaction Documents until such successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Transferor or the Administrator, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor or the Administrator may remove
the Owner Trustee. If the Transferor or the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Transferor and the Administrator, acting jointly, shall promptly appoint a
successor
12
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 Trustee shall mail notice of such
merger or consolidation to the Transferor, the Administrator and the Rating
Agencies.
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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 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.
14
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) This Agreement may be
amended by the Transferor and the Owner Trustee, with prior written notice to
the Rating Agencies and the prior consent of the Administrator, without the
consent of any of the Noteholders:
(i) to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder;
provided that such action shall not in the good faith judgment of
the Transferor materially and adversely affect the interests of
any Noteholder or Certificateholder; provided, further, that such
amendment will not significantly change the permitted activities
of the Issuer as set forth herein; and
(ii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable the Transferor, the
Servicer or any of their Affiliates to otherwise comply with or
obtain more favorable treatment under any law or regulation or
any accounting rule or principle;
it being a condition to any such amendment that the Rating Agency Condition
shall have been satisfied.
(b) This Agreement may also be amended from time to time by the
Transferor and the Owner Trustee, with prior written notice to the Rating
Agencies, and with the consent of the Administrator and the Majority Noteholders
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder; provided that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Collateral or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes required to consent to any such amendment,
without the consent of the Holders of all the outstanding Notes.
(c) Promptly after the execution of any such amendment or
consent, the Transferor shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee and each Rating Agency.
15
(d) It shall not be necessary for the consent of the Noteholders
or the Indenture Trustee pursuant to this Section to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such
consent, where required, shall approve the substance thereof; provided that if
the consent of the Indenture Trustee is required pursuant to this Section, such
amendment shall not, as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee, materially and adversely affect the interests of the
Noteholders.
(e) 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
their 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 their 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. Except for Section 2.7,
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
the Corporate Trust Office; if to the Transferor, addressed to 0000 Xxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: Treasurer with a copy to 0000 Xxxxxx
Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: General Counsel; if to the
Administrator, addressed to 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000,
Attention: Treasurer with a copy to 0000 Xxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx
00000, Attention: General Counsel; or, as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
(a) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid,
at the address of such Certificateholder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
16
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 each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. No Petition. With respect to each Bankruptcy Remote Party,
each of the Owner Trustee (in its individual capacity and as the Owner Trustee),
by entering into this Agreement, the Transferor, each Certificateholder, by
accepting a 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 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.
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 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
17
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 and 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, (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 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
and (iii) in the case of a purchase or assignment, provide to each Origination
Trustee an opinion of counsel to the effect that the purchase or assignment does
not and will not require registration of the UTI Certificate or related SUBI
Certificate, as applicable, under applicable United States federal and
applicable state securities laws.
[Remainder of Page Intentionally Left Blank]
18
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
U.S. BANK TRUST NATIONAL ASSOCIATION
By:_________________________________________
Name:
Title:
S-1
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:_________________________________________
Name:
Title:
S-2
EXHIBIT A
FORM OF CERTIFICATE
NUMBER 100% BENEFICIAL INTEREST
R-1
VOLKSWAGEN AUTO LEASE TRUST 2002-A
CERTIFICATE
Evidencing the 100% beneficial interest in certain distributions of the
Issuer (as defined below) the property of 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 CERTIFIES THAT [ ] is the registered owner of a 100% nonassessable,
fully-paid, beneficial interest in certain distributions of VOLKSWAGEN AUTO
LEASE TRUST 2002-A (the "Issuer") formed by Volkswagen Auto Lease Underwritten
Funding, LLC, a Delaware limited liability company, as depositor (the
"Transferor").
The Issuer was created pursuant to a Trust Agreement dated as of
November [ ], 2002 (the "Trust Agreement"), between the Transferor and U.S. Bank
Trust National Association, as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Indenture between the Issuer and The Bank of
New York, as indenture trustee, dated as of November [ ], 2002, as the same may
be amended or supplemented from time to time.
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.
C-1
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 and
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, (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 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
and (iii) in the case of a purchase or assignment, provide to the Trustee an
opinion of counsel to the effect that the purchase or assignment does not and
will not require registration of the UTI Certificate or related SUBI
Certificate, as applicable, under applicable United States federal and
applicable state securities 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
C-2
any bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction.
This Certificate may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, 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.
C-3
IN WITNESS WHEREOF, the Owner Trustee has caused this Certificate to be
duly executed.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity, but solely as the
Owner Trustee
Dated:_______________ By:_______________________________________________
C-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as the Owner Trustee
By: _____________________________________
Authenticating Agent
By: _____________________________________
Authorized Signatory
C-5
