DAIMLER TRUST,
EXHIBIT 99.3
as Initial Secured Party,
[●],
as Assignee-Secured Party,
and
[●],
as Securities Intermediary
TITLING TRUST ACCOUNT
Dated as of [_______ _], 20[__]
TABLE OF CONTENTS
| Page | ||
| ARTICLE ONE | ||
| USAGE AND DEFINITIONS | ||
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Section 1.01.
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Capitalized Terms; Rules of Usage
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2
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| ARTICLE TWO | ||
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ESTABLISHMENT OF CONTROL OVER THE 20[__]-[_]
EXCHANGE NOTE COLLECTION ACCOUNT
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Section 2.01.
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Establishment of the 20[__]-[_] Exchange Note Collection Account
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3
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Section 2.02.
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Grant of Security Interest
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3
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Section 2.03.
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“Financial Assets” Election
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4
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Section 2.04.
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Entitlement Orders
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4
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Section 2.05.
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Subordination of Lien; Waiver of Set-Off
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4
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Section 2.06.
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Notice of Adverse Claims
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4
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| ARTICLE THREE | ||
| REPRESENTATIONS, WARRANTIES AND COVENANTS | ||
|
Section 3.01.
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Representations, Warranties and Covenants of the Securities Intermediary
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5 |
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Section 3.02.
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Additional Representations and Warranties
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5 |
| ARTICLE FOUR | ||
| MISCELLANEOUS | ||
|
Section 4.01.
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GOVERNING LAW
|
7 |
|
Section 4.02.
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WAIVER OF JURY TRIAL
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7 |
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Section 4.03.
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Conflict with Other Agreements
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7 |
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Section 4.04.
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Amendments
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7 |
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Section 4.05.
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Successors and Assigns
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8 |
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Section 4.06.
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Notices
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8 |
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Section 4.07.
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Termination
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8 |
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Section 4.08.
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No Petition
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9 |
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Section 4.09.
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Counterparts
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9 |
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Section 4.10.
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Table of Contents and Headings
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9 |
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Section 4.11.
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No Recourse
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9 |
ii
This TITLING TRUST CONTROL AGREEMENT, dated as of [_______ _], 20[__] (as amended, restated, modified or otherwise supplemented, this “Agreement”),
is among DAIMLER TRUST (the “Titling Trust”), as initial secured party (the “Initial Secured Party”), [●] (“[●]”), as indenture trustee (the “Indenture Trustee”) and as secured party (the “Assignee-Secured Party”), and [●], as securities
intermediary (the “Securities Intermediary”).
RECITALS
WHEREAS, pursuant to the Amended and Restated Servicing Agreement, dated as of March 1, 2009 (the “Servicing Agreement”), and the
20[__]-[_] Servicing Supplement, dated as of [_______ _], 20[__] (the “20[__]-[_] Servicing Supplement”), each among Mercedes-Benz Financial Services USA LLC, as servicer (in such capacity, the “Servicer”) and as lender (in such capacity, the
“Lender”), Daimler Title Co., as collateral agent (the “Collateral Agent”), and the Titling Trust, the segregated account, established with the Securities Intermediary, with account number [●], designated as the 20[__]-[_] Exchange Note
Collection Account (the “20[__]-[_] Exchange Note Collection Account”) has been created;
WHEREAS, the Initial Secured Party desires to grant to the Assignee-Secured Party a security interest in the 20[__]-[_] Exchange Note
Collection Account, all related Security Entitlements (as defined herein) and the financial assets and other investment property from time to time included therein to secure payment of the obligations of the Initial Secured Party and
Mercedes-Benz Auto Lease Trust 20[__]-[_] under the Basic Collateral Agency Agreement and the 20[__]-[_] Exchange Note Supplement, as applicable;
WHEREAS, pursuant to the 20[__]-[_] Servicing Supplement, on the date on which the Lien of the Indenture is released, rights with
respect to the 20[__]-[_] Exchange Note Collection Account shall be transferred to the Collateral Agent;
WHEREAS, pursuant to the 20[__]-[_] Servicing Supplement, on the date on which the 20[__]-[_] Exchange Note is paid in full, rights
with respect to the 20[__]-[_] Exchange Note Collection Account shall be transferred back to the Initial Secured Party; and
WHEREAS, the parties hereto desire (i) that the security interest of the Assignee-Secured Party be a first priority security interest
perfected by “control” pursuant to Articles Eight and Nine of the Uniform Commercial Code and (ii) to make provision for the perfection in a similar manner of the Initial Secured Party’s security interest following release of the Lien of the
Indenture and payment in full of the 20[__]-[_] Exchange Note.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
USAGE AND DEFINITIONS
Section 1.01. Capitalized Terms; Rules of Usage.
Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings ascribed thereto in Appendix 1 to the 20[__]-[_] Servicing Supplement or, if not defined therein, in Appendix A to the Basic Collateral Agency
Agreement, which Appendices are hereby incorporated into and made a part of this Agreement. Appendix 1 also contains rules as to usage applicable to this Agreement. Except as otherwise specified herein or as the context may otherwise require,
the following terms have the respective meanings set forth below for all purposes of this Agreement:
“20[__]-[_] Exchange Note Supplement” means the 20[__]-[_]
Exchange Note Supplement, dated [_______ _], 20[__], among the Titling Trust, the Administrative Agent, the Collateral Agent, the Lender, the Servicer and the Indenture Trustee.
“Administrative Agent” means U.S. Bank Trust National
Association, a national banking association.
“Assignee-Secured Party” has the meaning set forth in the
preamble.
“Basic Collateral Agency Agreement” means the Amended and
Restated Collateral Agency Agreement, dated as of March 1, 2009, among the Titling Trust, the Administrative Agent, the Collateral Agent, the Lender and the Servicer.
“Entitlement Holder” means, with respect to any financial
asset, a Person identified in the records of the Securities Intermediary as the Person having a Security Entitlement against the Securities Intermediary with respect to such financial asset.
“Entitlement Order” means a notification directing the
Securities Intermediary to transfer or redeem a financial asset.
“Financial Asset” has the meaning set forth in Section
8-102(a)(9) of the UCC.
“Initial Secured Party” has the meaning set forth in the
preamble.
“Securities Intermediary” has the meaning set forth in the
preamble.
“Security Entitlement” means the rights and property
interest of an Entitlement Holder with respect to a Financial Asset, as specified in Part 5 of Article 8 of the UCC.
“UCC” means the Uniform Commercial Code as in effect in
the State of New York.
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ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER THE 20[__]-[_]
EXCHANGE NOTE COLLECTION ACCOUNT
Section 2.01. Establishment of the 20[__]-[_] Exchange Note
Collection Account. The Securities Intermediary hereby confirms that (i) the Indenture Trustee, on behalf of the Servicer, has established the 20[__]-[_] Exchange Note Collection Account with the Securities Intermediary, (ii)
the 20[__]-[_] Exchange Note Collection Account is an account to which Financial Assets are or may be credited, (iii) the Securities Intermediary shall, subject to the terms of this Agreement and the Indenture, treat the Assignee-Secured Party
as entitled to exercise the rights that comprise any Financial Asset credited to the 20[__]-[_] Exchange Note Collection Account, (iv) all property delivered to the Securities Intermediary by or on behalf of the Assignee-Secured Party or the
Initial Secured Party for deposit to the 20[__]-[_] Exchange Note Collection Account will promptly be credited to the 20[__]-[_] Exchange Note Collection Account and (v) all securities or other property underlying any Financial Assets credited
to the 20[__]-[_] Exchange Note Collection Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the
Securities Intermediary and in no case will any Financial Asset credited to the 20[__]-[_] Exchange Note Collection Account be registered in the name of the Initial Secured Party, payable to the order of the Initial Secured Party or specially
endorsed to the Initial Secured Party except to the extent the foregoing have been specially endorsed to the Securities Intermediary or in blank.
Section 2.02. Grant of Security Interest. The Initial
Secured Party Grants to the Indenture Trustee on the 20[__]-[_] Closing Date, as Indenture Trustee for the benefit of the 20[__]-[_] Secured Parties, all of the Initial Secured Party’s right, title and interest in, to and under, whether now
owned or existing or hereafter acquired or arising in, the 20[__]-[_] Exchange Note Collection Account. The Grant of the 20[__]-[_] Exchange Note Collection Account includes all rights, powers and options (but none of the obligations) of the
Initial Secured Party as holder of the 20[__]-[_] Exchange Note Collection Account, including the immediate and continuing right to claim for, collect, receive and give receipt for all monies included in the 20[__]-[_] Exchange Note Collection
Account, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the Initial Secured Party or otherwise, and generally to do and receive
anything that any Initial Secured Party is or may be entitled to do or receive under the 20[__]-[_] Exchange Note Collection Account or with respect to the 20[__]-[_] Exchange Note Collection Account.
The foregoing Grant is made in trust to secure (i) the payment of principal of and interest on, and any other amounts owing in respect
of, the 20[__]-[_] Exchange Note as provided in the 20[__]-[_] Exchange Note Supplement and (ii) compliance by the Initial Secured Party with the provisions of the 20[__]-[_] Exchange Note Supplement for the benefit of the 20[__]-[_] Secured
Parties.
The Indenture Trustee acknowledges such Grant, accepts the trusts under this Agreement and agrees to perform the duties required in
this Agreement and the 20[__]-[_] Exchange Note Supplement.
The Initial Secured Party hereby authorizes the Indenture Trustee to file a Record or Records (as such term is defined in the
applicable UCC), including financing statements or continuation statements, and amendments thereto, in all jurisdictions and with all filing offices as are necessary or advisable to perfect, and continue the perfection of, the security interest
Granted to the Indenture Trustee; provided, that the Indenture Trustee will have no obligation to make any such filings. Such financing statements may describe the 20[__]-[_] Exchange Note Collection Account in any manner as the Indenture
Trustee may determine is necessary, advisable or prudent to ensure the perfection of the security interest Granted to the Indenture Trustee under this Agreement; provided, that the Indenture Trustee will have no obligation to make any such
determination.
3
Section 2.03. “Financial Assets” Election. The
Securities Intermediary hereby agrees that each item of property (whether investment property, financial asset, security, instrument or cash) credited to the 20[__]-[_] Exchange Note Collection Account shall be treated as a “Financial Asset”
set forth in Section 8-102(a)(9) of the UCC.
Section 2.04. Entitlement Orders. If at any time the
Securities Intermediary shall receive any Entitlement Order from the Assignee-Secured Party with respect to the 20[__]-[_] Exchange Note Collection Account, the Securities Intermediary shall comply with such Entitlement Order without further
consent by the Initial Secured Party or any other Person. If at any time the Assignee-Secured Party notifies the Securities Intermediary in writing that the Lien of the Indenture has been released and the 20[__]-[_] Exchange Note has been paid
in full, the Securities Intermediary shall thereafter comply with Entitlement Orders with respect to the 20[__]-[_] Exchange Note Collection Account from the Initial Secured Party without further consent by any other Person. Notwithstanding
anything to the contrary contained herein, if at any time the Securities Intermediary receives conflicting orders or instructions from the Assignee-Secured Party and the Initial Secured Party, the Securities Intermediary will follow the orders
or instructions of the Assignee-Secured Party and not the Initial Secured Party.
Section 2.05. Subordination of Lien; Waiver of Set-Off.
In the event that the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in the 20[__]-[_] Exchange Note Collection Account or any Security Entitlement credited thereto, the
Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interests of the Assignee-Secured Party and the Initial Secured Party. The Financial Assets and other items deposited to the 20[__]-[_]
Exchange Note Collection Account will not be subject to deduction, set-off, banker’s lien or any other right in favor of any Person or entity other than the Assignee-Secured Party and, subject to the provisions hereof, the Initial Secured
Party. Notwithstanding the foregoing, the Securities Intermediary may set off against amounts on deposit in the 20[__]-[_] Exchange Note Collection Account (i) all amounts due to it in respect of its customary fees and expenses for the routine
maintenance and operation of the 20[__]-[_] Exchange Note Collection Account, and (ii) the face amount of any checks which have been credited to the 20[__]-[_] Exchange Note Collection Account but are subsequently returned unpaid because of
uncollected or insufficient funds.
Section 2.06. Notice of Adverse Claims. Except for the
claims and interests of the Initial Secured Party and the Assignee-Secured Party in the 20[__]-[_] Exchange Note Collection Account, the Securities Intermediary does not know of any claim to, or interest in, the 20[__]-[_] Exchange Note
Collection Account or in any Financial Asset credited to the 20[__]-[_] Exchange Note Collection Account. If any Person asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution
or similar process) against the 20[__]-[_] Exchange Note Collection Account or in any Financial Asset within the 20[__]-[_] Exchange Note Collection Account, the Securities Intermediary will promptly notify the Assignee-Secured Party and the
Initial Secured Party thereof.
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ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.01. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby represents and warrants to, and covenants for the benefit of, the Assignee-Secured Party and the Initial Secured Party, that as of the Closing Date:
(a) The 20[__]-[_] Exchange Note
Collection Account has been established as set forth in Section 2.01(i) and will be maintained in the manner set forth herein until termination of this Agreement. The Securities Intermediary shall not change the name or account number of the
20[__]-[_] Exchange Note Collection Account without the prior written consent of the Assignee-Secured Party (or, after receipt of notice pursuant to Section 2.04 that the Lien of the Indenture has been released and the 20[__]-[_] Exchange Note
has been paid in full, the Initial Secured Party).
(b) No Financial Asset carried in the
20[__]-[_] Exchange Note Collection Account is or will be registered in the name of the Initial Secured Party, payable to the order of the Initial Secured Party, or specially endorsed to the Initial Secured Party, except to the extent such
Financial Asset has been endorsed to the Securities Intermediary or in blank.
(c) This Agreement is the valid and
legally binding obligation of the Securities Intermediary.
(d) The Securities Intermediary has
not entered into, and until the termination of this Agreement will not enter into, any agreement pursuant to which it agrees to comply with Entitlement Orders of any Person other than the Assignee-Secured Party or the Initial Secured Party, in
each case to the extent provided in Section 2.04, with respect to the 20[__]-[_] Exchange Note Collection Account.
(e) The Securities Intermediary has
not entered into any other agreement with the Assignee-Secured Party or the Initial Secured Party purporting to limit or condition the obligation of the Securities Intermediary to comply with Entitlement Orders as set forth in Section 2.04.
(f) There are no other agreements
entered into between the Securities Intermediary and the Initial Secured Party with respect to the 20[__]-[_] Exchange Note Collection Account other than the Servicing Agreement, the 20[__]-[_] Servicing Supplement, the 20[__]-[_] Exchange Note
Supplement or the Indenture.
(g) The Securities Intermediary in
the ordinary course of its business maintains “securities accounts” (as defined in Section 8-501 of the UCC) for others and is acting in that capacity hereunder.
Section 3.02. Additional Representations and Warranties.
The Securities Intermediary makes the following additional representations and warranties to the Initial Secured Party and the Assignee-Secured Party, that as of the Closing Date:
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(a) The Securities Intermediary has
been duly organized and is validly existing as a [●] under the laws of [●].
(b) The Securities Intermediary has
the power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by the Securities Intermediary and constitutes the legal, valid and binding
obligation of the Securities Intermediary, enforceable against the Securities Intermediary in accordance with its terms, except as such enforceability may be limited by insolvency, bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors’ rights and by general equitable principles.
(c) The consummation of the
transactions contemplated by, and the fulfillment of the terms of, this Agreement will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default
under its charter documents or by-laws, any material indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Securities Intermediary is a party or by which the
Securities Intermediary is bound, (ii) result in the creation or imposition of any Lien upon any of the Securities Intermediary’s properties pursuant to the terms of any such agreement or instrument (other than Liens contemplated by this
Agreement) or (iii) violate or contravene any law or, to the Securities Intermediary’s knowledge, any order rule or regulation applicable to the Securities Intermediary of any Governmental Authority having jurisdiction over the Securities
Intermediary or its properties, the failure to comply with which would reasonably be expected to have a material adverse effect on the Securities Intermediary’s ability to perform its obligations under this Agreement.
(d) There are no Proceedings pending,
or, to the Securities Intermediary’s knowledge, threatened, and to the Securities Intermediary’s knowledge there are no investigations pending or threatened, against or affecting the Securities Intermediary or its property before any
Governmental Authority (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that
would reasonably be expected to have a material adverse effect on the ability of the Securities Intermediary to perform its obligations under this Agreement.
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ARTICLE FOUR
MISCELLANEOUS
Section 4.01. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) Regardless of any provision in any other agreement,
for purposes of the UCC including Sections 8-110(b) and 9-304(b) thereof, the Security Intermediary’s jurisdiction (within the meaning of Section 8-110 of the UCC) is the State of New York. Each party to this Agreement submits to the
nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York, New York for purposes of all Proceedings arising out of or relating to this Agreement or
the transactions contemplated by the 20[__]-[_] Basic Documents. Each party to this Agreement irrevocably waives, to the fullest extent it may do so, any objection that it may now or hereafter have to the laying of the venue of any such
Proceeding brought in such a court and any claim that any such Proceeding brought in such a court has been brought in an inconvenient forum.
Section 4.02. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER 20[__]-[_] BASIC DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY SUCH OTHER 20[__]-[_] BASIC DOCUMENT.
Section 4.03. Conflict with Other Agreements. There are
no other agreements entered into between the Securities Intermediary in such capacity and the Initial Secured Party with respect to the 20[__]-[_] Exchange Note Collection Account. In the event of any conflict between this Agreement (or any
portion thereof) and any other agreement now existing or hereafter entered into with respect to the 20[__]-[_] Exchange Note Collection Account, the terms of this Agreement shall prevail.
Section 4.04. Amendments.
(a) This Agreement may be amended, supplemented or
otherwise modified from time to time by a writing executed by the parties hereto, without the consent of any Securityholder, to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision
herein or to add, change or eliminate any other provision with respect to matters or questions arising under this Agreement that are not inconsistent with the provisions of this Agreement; provided, that (i) the Initial Secured Party shall have
delivered to the Indenture Trustee an Opinion of Counsel or an Officer’s Certificate of the Issuer to the effect that such action will not materially adversely affect the interests of any Noteholders or (ii) the Rating Agency Condition shall
have been satisfied with respect to such amendment.
7
(b) Each amendment, supplement or other modification of
this Agreement other than those provided for in Section 4.04(a) above requires the consent of the Majority Noteholders (or if the Notes are no longer Outstanding, Holders of Certificates evidencing not less than a majority of the aggregate
Certificate Percentage Interests); provided, however, that no such amendment may (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, or change the allocation or priority of, collections of payments on or in
respect of the 20[__]-[_] Leases and 20[__]-[_] Vehicles or distributions that are required to be made for the benefit of the Securityholders, change the Interest Rate applicable to any class of Notes or the Required Reserve Amount for the
20[__]-[_] Reserve Account, without the consent of all holders of Notes then Outstanding or (ii) reduce the percentage of the Note Balance of the Outstanding Notes the consent of the Holders of which is required for any amendment to this
Agreement without the consent of the Holders of all Outstanding Notes.
(c) 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.
(d) Promptly after the execution of any such amendment,
the Initial Secured Party shall furnish written notification of the substance of such amendment to the Owner Trustee, the Indenture Trustee and the Rating Agencies.
Section 4.05. Successors and Assigns. All covenants and
agreements in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto, the Noteholders and their successors and assigns. Any request, notice, direction, consent, waiver or other instrument or action by the parties
hereto shall bind their respective successors and assigns.
Section 4.06. Notices. All demands, notices and
communications hereunder shall be in writing and shall be delivered, e-mailed or mailed, postage prepaid, hand delivery, prepaid courier service or by telecopier, and addressed in each case as follows, if to (i) the Initial Secured Party, x/x
XXX Xxxxxx Trust of Delaware, Bellevue Corporate Center, 000 Xxxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration (e-mail: xxxx.xxxxx@xxxxxxxxx.xxx), (ii) the Assignee-Secured Party,
[_____________________] Attention: [_____________________] E-mail: ____________________], (iii) the Securities Intermediary, [_____________________] Attention: [_____________________] E-mail: ____________________] or (iv) as to any of
such parties, at such other address as shall be designated by such party in a written notice to the other parties.
Section 4.07. Termination.
(a) The rights and powers granted herein to the
Assignee-Secured Party have been granted in order to perfect its security interest in the 20[__]-[_] Exchange Note Collection Account, are powers coupled with an interest and will neither be affected by the bankruptcy of the Initial Secured
Party nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect with respect to the 20[__]-[_] Exchange Note Collection Account until the Assignee-Secured Party and the Initial Secured Party
(or, after the Securities Intermediary has been notified of the release of the Lien of the Indenture pursuant to Section 2.04, only the Initial Secured Party) have notified the Securities Intermediary in writing that their respective security
interests under the Indenture and the Trust Agreement have been terminated.
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(b) The rights and powers granted herein to the Initial
Secured Party have been granted in order to perfect its security interest in the 20[__]-[_] Exchange Note Collection Account following the release of the Lien of the Indenture and payment in full of the 20[__]-[_] Exchange Note, are powers
coupled with an interest and will neither be affected by the bankruptcy of the Initial Secured Party nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect with respect to the 20[__]-[_]
Exchange Note Collection Account until the Assignee-Secured Party and the Initial Secured Party (or, after the Securities Intermediary has been notified of the release of the Lien of the Indenture and payment in full of the 20[__]-[_] Exchange
Note pursuant to Section 2.04, only the Initial Secured Party) have notified the Securities Intermediary in writing that their respective security interests hereunder and under the Indenture and the Trust Agreement have been terminated.
Section 4.08. No Petition. Each of the parties hereto
covenants that for a period of one year and one day (or, if longer, any applicable preference period) after payment in full of all Exchange Notes, Notes and other Securities it will not institute against, or join any Person in instituting
against the Initial Beneficiary, the Titling Trust, the Transferor, the Issuer or the 20[__]-[_] Exchange Noteholder any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceedings, or other Proceedings under any Insolvency
Law in connection with any obligations relating to the 20[__]-[_] Exchange Note, any 20[__]-[_] Notes, this Agreement or any other 20[__]-[_] Basic Document and agrees that it will not cooperate with or encourage others to institute any such
Proceeding.
Section 4.09. Counterparts. This Agreement may be
executed in any number of counterparts, each of which counterparts will be an original, and all of which counterparts will together constitute one and the same instrument.
Section 4.10. Table of Contents and Headings. The Table
of Contents and the various headings in this Agreement are included for convenience only and will not affect the meaning or interpretation of any provision of this Agreement.
Section 4.11. No Recourse. It is expressly understood
and agreed by the parties that (i) this document is executed and delivered by BNYM, not individually or personally, but solely as Titling Trustee, in the exercise of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the Titling Trust is made and intended not as personal representations, undertakings and agreements by BNYM but is made and intended for the purpose for binding only the
Titling Trust, (iii) nothing herein contained shall be construed as creating any liability on BNYM, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly
waived by the parties hereto and by any person claiming by, through or under the parties hereto and (iv) under no circumstances shall BNYM be personally liable for the payment of any indebtedness or expenses of the Titling Trust or be liable
for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Titling Trust under this document or any other related documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Titling Trust Account Control Agreement to be duly executed by their respective
officers duly authorized as of the day and year first above written.
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as Initial Secured Party
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By:
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BNY MELLON TRUST OF DELAWARE
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(f/k/a BNYM (Delaware)) (f/k/a The Bank of New York (Delaware)), not in its individual capacity, but solely as Titling Trustee
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By:
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Name:
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Title:
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[●], not in its individual capacity but solely as Indenture Trustee and Assignee-Secured Party
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By:
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Name:
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Title:
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[●], not in its individual capacity but solely as Securities Intermediary
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By:
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Name:
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Title:
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