EXHIBIT 4.40
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AMENDED AND RESTATED
ORIGINATION TRUST AGREEMENT
BY AND AMONG
RAVEN FUNDING LLC,
AS SUCCESSOR SETTLOR
AND INITIAL BENEFICIARY,
PHH VEHICLE MANAGEMENT SERVICES LLC,
AS EXISTING SETTLOR AND INITIAL
BENEFICIARY AND SUCCESSOR UTI TRUSTEE,
AND
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE
CREATING A DELAWARE BUSINESS TRUST TO BE KNOWN
AS THE "X.X. XXXXXXXX TRUST"
DATED AS OF JUNE 30, 1999
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AMENDED AND RESTATED ORIGINATION TRUST AGREEMENT
AMENDED AND RESTATED ORIGINATION TRUST AGREEMENT, dated as of JUNE
30, 1999 (as it may be modified, supplemented or amended from time to time in
accordance with its term, this "Agreement"), among Raven Funding LLC, a Delaware
limited liability company ("SPV"), as successor settlor and initial beneficiary
(the "Settlor" and the "Initial Beneficiary"), PHH VEHICLE MANAGEMENT SERVICES
LLC, a Delaware limited liability company ("VMS"), as the existing settlor and
initial beneficiary and the successor UTI Trustee, and WILMINGTON TRUST COMPANY,
a Delaware banking association (the "Delaware Trustee"). Certain capitalized
terms used herein are defined in Exhibit A.
R E C I T A L S
WHEREAS, VMS and Allfirst Bank (formerly The First National Bank of
Maryland ("Allfirst")) entered into an Amended and Restated Trust Agreement (the
"Original Trust Agreement") dated as of December 17, 1998 pursuant to which a
Maryland common law trust known as the "X.X. Xxxxxxxx Trust" (the "Original
Trust") was governed and continued;
WHEREAS, the Original Trust previously issued a Series 1998-A
Special Beneficial Certificate, a Series 1998-B Special Beneficial Certificate
and a Series 1998-C Special Beneficial Certificate, each certificate
representing an exclusive undivided interest in specific assets of the Original
Trust (the "Existing Special Beneficial Certificates"), and a certificate
representing the assets of the Original Trust not allocated to the Existing
Special Beneficial Certificates (the "Exchangeable Beneficial Certificate",
together with the Existing Special Beneficial Certificate, the "Existing
Interests");
WHEREAS, pursuant to an Asset Sale Agreement, dated as of the date
hereof, between VMS and SPV, SPV purchased the Existing Interests from VMS;
WHEREAS, pursuant to the Agreement, dated as of the date hereof,
among VMS, SPV, Allfirst and Wilmington Trust Company, Wilmington Trust Company
succeeded Allfirst as trustee of the Original Trust; and
WHEREAS, each party hereto wishes to amend and restate the terms of
the Original Trust and extinguish the Existing Interests and provide for the
Original Trust to become a business trust pursuant to the Business Trust Statute
(as defined below) by its execution and delivery of this Agreement and to make
certain other modifications to the Original Trust;
NOW, THEREFORE, IN CONSIDERATION of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
PART I
CREATION OF TRUST
Section 1.1. Creation of Trust. It is the intention of the parties
to amend and restate the terms of the Original Trust under Delaware law and form
a business trust pursuant to Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. ss.3801 et seq. (the "Business Trust Statute"), and that this Agreement
constitutes the governing instrument of such business trust to be known as "X.X.
XXXXXXXX TRUST" (the "Trust"). The Original Trust was formed pursuant to the
Original Trust Agreement. Beneficial interests in all of the assets (the
"Existing Trust Assets") of the Original Trust are represented by the Existing
Interests. The Settlor hereby delivers to the UTI Trustee the Existing Interests
in exchange for the UTI Certificate and directs that the Existing Trust Assets
allocated to such Existing Interests be reallocated to the UTI. The Existing
Interests are hereby extinguished. The UTI Trustee shall continue to hold the
Existing Trust Assets with such other Trust Assets as the Trust may from time to
time acquire, for the benefit of the holders of the Certificates under the terms
provided herein. The Delaware Trustee is hereby authorized to file a certificate
of trust under the Business Trust Statute. The purpose of the Trust is to act as
the agent and nominee of the Certificateholders.
PART II
TRUST ASSETS
Section 2.1. Trust Assets. Pursuant to this Agreement and the
Servicing Agreement, the Trust shall hold and acquire from the Initial
Beneficiary from time to time the following assets as contemplated by this
Agreement and the Servicing Agreement: (a) cash; (b) lease contracts (such lease
contracts, the "Leases") of Vehicles, and all security therefore; (c) Vehicles
that are or were subject to a Lease (the "Leased Vehicles") and all proceeds
thereof, including the residual values of the Leased Vehicles to be realized
through the exercise by lessees of purchase options under the Leases, the
proceeds of sale of the Leased Vehicles to third parties and payments received
from any other Person, either directly or through a Servicer, with respect to
the Leased Vehicles; (d) Vehicles acquired at the request of lessees under
Leases ("Paid-In-Advance Vehicles" and, together with the Leased Vehicles,
"Trust Vehicles"), and all proceeds thereof, including the proceeds of sale of
the Paid-In-Advance Vehicles and payments received from the related lessees or
any other Persons, either directly or through the Servicer, with respect to such
Paid-In-Advance Vehicles; (e) each certificate of title or other evidence of
ownership of a Trust Vehicle issued by the Registrar of Titles (as defined
below) in the respective jurisdiction in which such Trust Vehicle is registered
(each a "Certificate of Title"), which Certificate of Title shall reflect as the
owner of such Trust Vehicle "X.X. Xxxxxxxx Trust", the name of any Trustee or
such other similar designation as may be acceptable to any applicable
department, agency or official in each state responsible for accepting
applications for, and maintaining records regarding, Certificates of Title and
liens thereon (each a "Registrar of Titles"); (f) all of the lessor's rights
(but not its obligations) and all of the Trust's rights, in each case with
respect to any Lease or Trust Vehicle; (g) any insurance policy and rights
thereunder or proceeds therefrom, including, without limitation, any policy of
comprehensive, collision, public liability, physical damage or personal
liability insurance, maintained by the Initial Beneficiary or
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any Affiliate of the Initial Beneficiary, the Servicer under the Servicing
Agreement, any Obligor under any Lease or any Affiliate of any such Obligor to
the extent that any such policy covers or applies to any Lease or Trust Vehicle
(collectively, "Insurance Policies"); (h) receivables (the "Fleet Receivables")
generated by VMS from Obligors under fleet maintenance contracts, fleet
management contracts, fuel card contracts and any other service contracts the
fees for which are or would be billed together with a Lease if the Obligor is a
party to a Lease (collectively, "Fleet Service Contracts") and all proceeds
thereof, which Fleet Receivables are acquired by the Initial Beneficiary from
time to time pursuant to the terms of the Receivables Purchase Agreement dated
as of June 30, 1999 between VMS and the Initial Beneficiary (as amended,
modified or supplemented from time to time, the "Receivables Purchase
Agreement"); (i) all of the Initial Beneficiary's rights (but not its
obligations) under the Receivables Purchase Agreement, the Contribution
Agreement and the Asset Sale Agreement; and (j) all proceeds of any of the
foregoing. The foregoing assets, together with the Trust's rights under the
Receivables Purchase Agreement and the Contribution Agreement, and all proceeds
of the same, are collectively referred to herein as the "Trust Assets".
PART III
ACCEPTANCE BY TRUSTEES
Section 3.1. Acceptance by Trustees. (a) The UTI Trustee shall have
the rights, powers and duties with respect to the UTI set forth herein. The UTI
Trustee does hereby accept such appointment and agrees to act as a trustee of
the Trust for the benefit of the Initial Beneficiary and such other Persons as
may become holders of all or a part of the UTI, subject to the terms and
conditions of this Agreement.
(b) The Delaware Trustee shall have only such rights, powers and
duties as are specifically and expressly required by the Business Trust Statute
and this Agreement. The Delaware Trustee hereby accepts such appointment.
(c) Any SUBI Trustee shall have the rights, powers and duties set
forth herein with respect to the applicable SUBI. Any SUBI Trustee shall accept
such appointment and agree to act as a trustee of the Trust for the benefit of
the holders of all or part of the applicable SUBI, subject to the terms and
conditions of this Agreement, by execution of a counterpart to this Agreement or
other agreement acceptable to the UTI Trustee.
PART IV
BENEFICIAL INTERESTS IN TRUST
Section 4.1. Undivided Trust Interest. (a) The Initial Beneficiary
shall hold an exclusive, undivided beneficial interest (the "Undivided Trust
Interest" or the "UTI") in all assets of the Trust (the "UTI Assets"), other
than those identified Trust Assets that are from time to time allocated by the
Trust, upon the written direction of the Initial Beneficiary and otherwise in
accordance with Section 4.2 hereof, into one or more separate portfolios of
Trust Assets (together with any other Trust Asset allocated to or earned by any
such portfolio(s), and any proceeds
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thereof, collectively, "SUBI Assets"). Except as otherwise provided for herein,
all collections and amounts received with respect to the Undivided Trust
Interest shall be distributed or retained by the UTI Trustee, as directed in
writing from time to time by the Initial Beneficiary. Any assignee or pledgee of
an Undivided Trust Interest or Undivided Trust Interest Certificate must, prior
to or contemporaneously with the grant of any such assignment, pledge or
security interest (i) give to the Trust a non-petition covenant substantially
similar to that set forth in Section 6.9, (ii) execute an agreement between or
among itself and each assignee or pledgee from time to time of any SUBI or SUBI
Certificate, to release all claims to the Trust Assets allocated to any SUBI
Portfolio and, in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against all Trust Assets
allocated to any SUBI Portfolio, and (iii) provide to each Trustee an Opinion of
Counsel to the effect that, in the event of a bankruptcy or insolvency of such
assignee or pledgee, the Trust will not be substantively consolidated with such
assignee or pledgee. Nothing contained herein shall be deemed to limit the
rights of the holder of the UTI to enter into participation agreements pursuant
to which the holder grants one or more participation interests in the UTI.
(b) The Undivided Trust Interest initially shall be represented by a
single trust certificate (together with any replacements thereof, the "Undivided
Trust Interest Certificate" or the "UTI Certificate"); provided, however, that
at the request of any holder thereof the Undivided Trust Interest may be
represented by two (2) or more such certificates that, in the aggregate,
represent the entire Undivided Trust Interest, such divided certificates to be
issued pursuant to a supplement to this Agreement (each, a "UTI Supplement")
which shall specify any terms or conditions relevant to the issuance thereof, as
shall be prescribed and established by such holder and by the pledgee of any UTI
Pledge. Except as set forth in any applicable UTI Supplement, any Undivided
Trust Interest Certificate shall be in substantially the form of Exhibit B
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required by this Agreement and may have such letters, numbers
or other marks of identification and such legends and endorsements placed
thereon as may, consistently herewith, be directed in writing by the Initial
Beneficiary. Any portion of any Undivided Trust Interest Certificate may be set
forth on the reverse or subsequent pages thereof. Each Undivided Trust Interest
Certificate shall be printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced or may be produced in any other manner as may,
consistently herewith, be determined by the Initial Beneficiary.
(c) The UTI shall be a separate series of the Trust as provided in
Section 3806(b)(2) of the Business Trust Statute. Separate and distinct records
shall be maintained for the UTI Portfolio and the UTI Assets associated with
such UTI Portfolio shall be held and accounted for separately from the other
assets of the Trust, including any SUBI Assets. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the UTl or the related UTI Assets shall be enforceable against such
UTI Assets only, and not against the assets of the Trust generally or against
any SUBI Assets. Except to the extent required by law or specified in this
Agreement, the UTI shall not be subject to claims, debts, liabilities, expenses
or obligations arising from or with respect to any SUBI or any Trustee. No
creditor or holder of a claim relating to assets allocated to the UTI shall be
entitled to maintain any action against or recover any assets allocated to any
SUBI in respect of such claim (whether
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such assets were UTI Assets at any time since such claim arose). The holder of
the UTI may, in its sole discretion, appoint for the UTI a separate trustee,
(the "UTI Trustee") which shall perform such duties, have such responsibilities
and adhere to such standards of care as are specified in Part V of this
Agreement, but only with respect to the UTI. The Initial Beneficiary hereby
appoints VMS as the UTI Trustee.
Section 4.2. Special Units of Beneficial Interest. (a) The UTI
Trustee shall, from time to time, as directed in writing by the Initial
Beneficiary, identify and allocate or cause to be identified and allocated on
the books and records of the Trust one or more separate portfolios of SUBI
Assets to be accounted for independently within the Trust (each such portfolio,
a "SUBI Portfolio"). Upon their allocation as SUBI Assets, such Trust Assets
shall no longer be UTI Assets (unless and until specifically reallocated to the
UTI Assets from that SUBI Portfolio pursuant to the terms hereof). Separate and
distinct records shall be maintained for each SUBI Portfolio and the SUBI Assets
associated with each SUBI Portfolio shall be held and accounted for separately
from the other assets of the Trust, including the UTI Assets, or any other SUBI
Assets. The beneficial interest in each such SUBI Portfolio shall constitute a
separate "special unit of beneficial interest" ("SUBI") in the Trust. The SUBI
Trustee shall execute and deliver, on behalf of the Trust, to or upon the
written order of the Initial Beneficiary one or more SUBI Certificates
evidencing SUBIs, each SUBI representing a specific divided interest in (but
only in) such identified SUBI Portfolio and the SUBI Assets allocated thereto,
including with respect to each Trust Vehicle included in any such SUBI Portfolio
the actual net proceeds received with respect to the disposition of such Trust
Vehicle.
(b) Each SUBI shall be represented by one or more certificates (each
a "SUBI Certificate") to be issued by the Trust and shall be created by the
execution of a supplement to this Agreement (each a "SUBI Supplement"), which
SUBI Supplement shall specify the terms and provisions pursuant to which SUBI
Certificates shall be issued with respect to such SUBI; the form of any SUBI
Certificate(s) to be issued in connection therewith; the initial SUBI Assets to
be included in such SUBI Portfolio; the arrangements, if any, whereby additional
SUBI Assets may be added subsequently to the SUBI Portfolio; the provisions
under which the proceeds of the related SUBI Assets shall be collected, invested
and distributed; and other relevant terms and provisions specific to such SUBI,
all as shall be prescribed and established by the Initial Beneficiary. Each SUBI
Supplement shall provide for the application of all net proceeds received with
respect to the SUBI Assets, including any mandatory distributions to holders of
SUBI Certificates, but shall require an express written waiver of any claim by
any holder of any SUBI Certificate (which waiver may be set forth in such SUBI
Certificate) to any proceeds or assets of the Trustees and to all of the assets
of the Trust other than the SUBI Assets included from time to time within the
SUBI Portfolio allocated to that SUBI and those proceeds or assets derived from
or earned by such SUBI Assets.
(c) Each SUBI shall be a separate series of the Trust as provided in
Section 3806(b)(2) of the Business Trust Statute. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to each SUBI or the related SUBI Assets shall be enforceable against
such SUBI Assets only, and not against any other SUBI Assets or the UTI Assets.
Except to the extent required by law or specified in this Agreement or
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in the related SUBI Supplement, SUBI Assets with respect to a particular SUBI
shall not be subject to claims, debts, liabilities, expenses or obligations
arising from or with respect to the Trust, any Trustee, the UTI or any other
SUBI in respect of such claim. No creditor or holder of a claim relating to
assets allocated to any SUBI shall be entitled to maintain any action against or
recover any assets allocated to the UTI or any other SUBI. Notice of this
limitation on interseries liabilities shall be set forth in the certificate of
trust of the Trust (whether originally or by amendment) as filed or to be filed
in the office of the Secretary of State of the State of Delaware pursuant to the
Business Trust Statute, and upon the giving of such notice in the certificate of
trust, the statutory provisions of Section 3804 of the Business Trust Statute
relating to limitations on interseries liabilities (and the statutory effect
under Section 3804 of setting forth such notice in the certificate of trust)
shall become applicable to the Trust and each SUBI and UTI. Any purchaser,
assignee or pledgee of an interest in a SUBI or SUBI Certificate must, prior to
or contemporaneously with the grant of any such assignment, pledge or security
interest, (i) give to the Trust a non-petition covenant substantially similar to
that set forth in Section 6.9, and (ii) execute an agreement for the benefit of
each holder, assignee or pledgee from time to time of the UTI or UTI Certificate
and any other SUBI or SUBI Certificate, to release all claims to the assets of
the 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 Trust allocated to the UTI Portfolio
and each other SUBI Portfolio. In the event of a sale or assignment of a SUBI,
such purchaser or assignee shall be a beneficiary of the Trust in the manner and
to the extent set forth in the SUBI Certificate so acquired and in the
applicable SUBI Supplement.
(d) Each holder of a SUBI shall appoint for such SUBI a trustee (a
"SUBI Trustee") which shall perform such duties, have such responsibilities and
adhere to such standards of care as are specified in Part V of this Agreement,
but only with respect to the SUBI or SUBIs for which it was appointed. The same
Person may be appointed as SUBI Trustee for all or any SUBIs; provided, however,
that neither the Initial Beneficiary nor any Affiliate of the Initial
Beneficiary shall be a SUBI Trustee.
(e) No interest in any SUBI, SUBI Certificate or SUBI Portfolio
shall be transferred, assigned, sold or conveyed if, as the result of such
transfer, assignment, sale or conveyance, the Trust would become a publicly
traded partnership.
Section 4.3. [Intentionally Left Blank.]
Section 4.4. Form of Certificate: Registration of Certificates. (a)
The Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Delaware Trustee. Certificates bearing
a manual or facsimile signatures of individuals who were, at the time when such
a signature shall have been affixed, authorized to sign on behalf of the
Delaware Trustee shall, when duly authenticated pursuant hereto, be validly
issued and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall cease to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of authentication and delivery of such Certificates. No Certificate
shall entitle its holder to any benefit under this Agreement, or shall
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be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication, executed by the Delaware Trustee or an agent
thereof, by annual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder.
(b) The Delaware Trustee shall keep or cause to be kept at its
offices at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 or such
other office as it shall designate, by written notice to the Initial
Beneficiary, a certificate register (the "Certificate Register"), in which,
subject to such reasonable regulations as it may prescribe, the Delaware Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Delaware Trustee shall execute, authenticate
and deliver in the name of the designated transferee or transferees one or more
new Certificates of the same type and proportionate beneficial interest dated
the date of authentication by the Delaware Trustee. Each Certificate presented
or rendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form reasonably satisfactory to the Delaware
Trustee, duly executed by the holder of such Certificate or its attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
and exchange shall be canceled and subsequently disposed of by the Delaware
Trustee in accordance with its customary practice. No service charge shall be
made for any registration of transfer or exchange of any Certificate, but the
Delaware Trustee my require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates. Prior to the due presentation of a Certificate for
registration of transfer, the Delaware Trustee and each agent of the Delaware
Trustee may treat the Person in whose name any Certificate shall be registered
in the Certificate Register as the owner of such Certificate for all purposes,
and neither the Delaware Trustee nor any such agent shall be bound by any notice
to the contrary. The Delaware Trustee shall furnish or cause to be furnished to
each Servicer and the Initial Beneficiary, within (3) three Business Days after
receipt by the Delaware Trustee of request therefor, a list of the names and
addresses of the holders of the Certificates.
Section 4.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
any mutilated Certificate is surrendered to the Delaware Trustee, or the
Delaware Trustee receives evidence to its satisfaction of the mutilation,
destruction, loss or theft of any Certificate, and there is delivered to the
Delaware Trustee such security or indemnity as may be reasonably required by it
to save it harmless, then the Delaware Trustee shall execute and authenticate,
in lieu of such mutilated, destroyed, lost or stolen Certificate, a Certificate
of the same type and proportionate beneficial interest bearing an identification
number not contemporaneously outstanding, which shall constitute for all
purposes a substitute for the original Certificate, which original Certificate
shall be deemed canceled and shall be so marked on the books and records of the
Delaware Trustee.
Section 4.6. Retitling of Trust Vehicles. Except as otherwise
provided in the related Supplement, each holder of a UTI Certificate or a SUBI
Certificate may at any time, at its option, to be exercised by written notice
delivered to the applicable UTI or SUBI Trustee and the Servicer, request that
the Trust Vehicles allocated to such UTI Certificate or SUBI Certificate, as
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the case may be, be retitled in the name of such holder (or a Person designated
by such holder), that a lien may be noted on the Certificate of Title therefor
in the name of such holder (or a Person designated by such holder), or that
possession of such Certificate of Title and/or the other Trust Assets allocated
to such UTI Certificate or SUBI Certificate, as the case may be, be transferred
to such holder (or a Person designated by such holder). Except as otherwise
provided in the related Supplement, such holder shall indemnify the Trust, the
Trustees and the Servicer for, and hold the Trust, the Trustees and the Servicer
harmless against, any and all expenses, costs, liabilities, losses and claims
incurred by any of them as a result of or relating to such retitling or
transfer, or any action or inaction such holder shall take as the registered
owner of such Trust Vehicles or the owner of such Trust Assets, including,
without limitation, sales and transfer taxes and registration fees.
PART V
DUTIES AND POWERS OF TRUST AND TRUSTEES; TRUSTEE LIABILITY
Section 5.1. Duties and Powers of Trustees; Limitations on Trust
Activity. (a) Each Trustee undertakes to perform such duties, and only such
duties, as are specified in this Agreement, any supplement entered into pursuant
to this Agreement by such Trustee, or, except with respect to the duties of any
Trustee to the extent such duties relate to any SUBI Portfolio and the assets
thereof, as may be directed by the Initial Beneficiary in a manner not contrary
to the terms of this Agreement, from time to time, including (without
limitation) in connection with (i) financing transactions of any sort undertaken
by the Initial Beneficiary or a Special Purpose Entity secured, directly or
indirectly, by Trust Assets, by the Undivided Trust Interest or by any SUBI or
any interest therein (including without limitation any financing undertaken in
connection with the issuance and assignment of a SUBI and related SUBI
Certificates), (ii) any sale by the Initial Beneficiary or a Special Purpose
Entity of any interest in one or more SUBIs, (iii) any other asset
securitization, secured loan or similar transaction involving Trust Assets or
any beneficial interest therein or in the Trust (collectively, the transactions
in clauses (i), (ii) and (iii) are referred to herein as "Securitizations"),
(iv) sales by the Trust of Trust Assets to the extent permitted by the terms of
any existing Securitizations (so long as the Certificate of Title of any Unit so
sold is amended to reflect the transfer of ownership thereof from the Trust,
unless applicable law permits the transfer of ownership of a motor vehicle
without an amendment to the vehicle's certificate of title) or (v) activities
ancillary thereto.
(b) Except as provided in or otherwise expressly contemplated by
this Agreement or any Servicing Agreement, the Trust shall not (i) issue
beneficial interests in the Trust Assets or securities of the Trust other than
the UTI and UTI Certificates and one or more SUBIs and SUBI Certificates; (ii)
borrow money on behalf of the Trust; (iii) make loans or extend credit on behalf
of the Trust; (iv) invest in or underwrite securities; (v) offer or issue
securities in exchange for Trust Assets (other than UTI Certificates and SUBI
Certificates); (vi) repurchase or otherwise reacquire any UTI Certificate or,
except as permitted by or in connection with any Securitization relating
thereto, any SUBI Certificate; (vii) acquire any assets, other than Trust Assets
as contemplated in Section 2.1; (viii) engage in any trade or business; or (ix)
except for the acquisition of Trust Assets and agreements relating to any
Securitization and activities ancillary thereto, enter into any agreements or
contracts.
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(c) The Trustees shall establish accounts and receive, maintain,
invest and disburse funds in accordance with Part VII hereof and any Servicing
Agreement or Supplement hereto or thereto.
(d) On the date hereof, the Trust is entering into a Servicing
Agreement with VMS and the Initial Beneficiary, and the Trust shall enter from
time to time into one or more other servicing agreements (each a "Servicing
Agreement") with VMS or with such other or additional Persons as the holder of
the UTI Certificate or any SUBI Certificate shall designate in writing with
respect to the applicable Portfolio represented by such Certificate (each, in
such capacity, a "Servicer"). VMS is hereby designated as the initial Servicer.
Each Servicing Agreement shall specify various duties, powers, liabilities,
obligations and compensation of the Servicer with respect to the administration
and servicing of those Trust Assets as to which such Servicing Agreement
applies, including (without limitation) Trust Vehicles, Leases and Fleet
Receivables. The Trust may enter from time to time into one or more agreements
(each, a "Nominee Agreement") with any Person (other than the Initial
Beneficiary or any Affiliate of the Initial Beneficiary) that the Initial
Beneficiary shall designate, such Person to serve as a nominee for the Trust in
those jurisdictions where the Trust cannot be named as owner of Trust Vehicles
on Certificates of Title. The Trustees, and each of them, on behalf of the
Trust, shall execute and deliver such documents, certificates, applications,
powers of attorney and registrations as shall be requested and prepared by a
Servicer pursuant to a Servicing Agreement or by the Initial Beneficiary in
connection with the administration of the Trust or the servicing of the Trust
Assets, including, without limitation, a power of attorney to the Servicer and,
to the extent deemed appropriate by the Servicer, the lessees or a dealer;
provided, however, that no Trustee shall be obligated to enter into any such
documents, certificates, applications, powers of attorney or registrations that
adversely affect such Trustee's own rights, duties or immunities under this
Agreement or otherwise.
(e) The Trustees and the Trust shall have such powers as are
necessary and appropriate to the conduct of their duties as set forth in this
Agreement, the Servicing Agreements and the SUBI Supplements. In furtherance of
the foregoing, the Delaware Trustee is hereby authorized to execute and deliver
any documents, certificates or agreements to which the Trust is a party pursuant
to this Agreement or any SUBI Supplement hereto.
Section 5.2. Duty of Care. (a) No provision of this Agreement shall
be construed to relieve any Trustee from liability for its own grossly negligent
action (or, with respect to any handling or disbursement of funds, its own
negligent action), its own grossly negligent failure to act (or, with respect to
any handling or disbursement of funds, its own negligent failure to act), its
own bad faith, its own breach of its representations, warranties or covenants
given in its individual capacity or its own willful misfeasance or similar acts
or omissions of any Trust Agent; provided, however, that:
(i) a Trustee shall not be personally liable for any action taken,
suffered or omitted by it or any error of judgment, in each case made in
good faith by any officer of, or any other employee of the corporate trust
office of, such Trustee or any Trust Agent, including any vice-president,
trust officer or any other officer of such Trustee or such
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Trust Agent customarily performing functions similar to those performed by
such officers or to whom any corporate trust matter is referred because of
such Person's knowledge of or familiarity with the particular subject,
unless it shall be proved that such Trustee or Trust Agent was grossly
negligent (or, with respect to any handling or disbursement of funds,
negligent) or acted with willful misfeasance in performing its duties in
accordance with the terms of this Agreement; and
(ii) a Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken in good faith in accordance
with the express direction of the Initial Beneficiary (to the extent
relating to the Undivided Trust Interest) or the holder or pledgee of a
SUBI Certificate in connection with a Securitization (to the extent
relating to a SUBI) relating to the exercise of any trust power conferred
upon such Trustee under this Agreement.
(b) Notwithstanding subsection (a) above, a Trustee shall not be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties under this Agreement, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require a Trustee to perform, or
be responsible for the manner or omission of performance of, any of the duties
or obligations of a Servicer under any Servicing Agreement.
(c) Except for actions expressly authorized by this Agreement, a
Trustee shall take no action as to which such Trustee has been notified in
writing by the holder, assignee or pledgee of a related SUBI Certificate or UTI
Certificate, or has actual knowledge, that such action would impair the
beneficial interests in the Trust, would impair the value of any Trust Asset or
would adversely affect the credit rating of any Securitization.
(d) All information obtained by a Trustee regarding the
administration of the Trust, whether upon the exercise of its rights under this
Agreement or otherwise, shall be maintained by such Trustee in confidence and
shall not be disclosed to any other Person other than to any Trust Agent, the
Initial Beneficiary, any Special Purpose Entity (if applicable), any Servicer,
any assignee of an interest in a UTI or UTI Certificate or any pledgee of a UTI
Pledge (or any beneficiary of such pledge) and any assignee or pledgee of a SUBI
Certificate, unless such disclosure is permitted by this Agreement or any other
agreement contemplated hereby, is reasonably necessary or incidental to the
Trustee's discharge of its duties or exercise of its rights hereunder, is
required by any applicable law or regulation or pursuant to subpoena (and such
Trustee has provided notice thereof to the Initial Beneficiary), or such
information is already otherwise publicly available.
Section 5.3. Certain Matters Affecting the Trustees. Except as
otherwise provided in this Agreement:
(a) a Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, officer's certificate,
certificate of auditors or any other
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certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties. in particular, but without limitation, whenever
in this Agreement it is provided that a Trustee shall receive or may rely
on the instructions or direction, of the Initial Beneficiary, a Special
Purpose Entity, or the holder or pledgee of a UTI Certificate or a SUBI
Certificate in connection with a Securitization, any written instruction
or direction purporting to bear the signature of any officer of the
Initial Beneficiary, a Special Purpose Entity, or the holder or pledgee of
a UTI Certificate or a SUBI Certificate in connection with a
Securitization reasonably believed by it to be genuine may be deemed by
such Trustee to have been signed or presented by the proper party;
(b) a Trustee may consult with counsel, and any written opinion of
counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it under this Agreement in
good faith and in accordance with such written opinion of counsel;
(c) a Trustee shall be under no obligation to exercise any of the
discretionary rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction of the
Initial Beneficiary, a Special Purpose Entity, the assignee or pledgee of
a UTI Certificate or a SUBI Certificate in connection with a
Securitization or any other beneficiary of the Trust pursuant to the
provisions of this Agreement, unless such requesting Person(s) shall have
offered to such Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
(d) a Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Initial Beneficiary, a Special Purpose Entity or by the assignee or
pledgee of a UTI Certificate or a SUBI Certificate in connection with a
Securitization; provided, however, that if the payment within a reasonable
time to such Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
such Trustee, not reasonably assured to such Trustee by the security
afforded to it by the terms of this Agreement, such Trustee may require
reasonable indemnity against such cost, expense or liability as a
condition to so proceeding; the reasonable expense of every such
examination shall be paid by the Person(s) requesting such examination or,
if paid by such Trustee, shall be reimbursed as a Trust expense upon
demand; and
(e) a Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or by
or through agents or attorneys or one or more custodians and the Trustee
shall not be liable for the acts or omissions of any agent or attorney
selected by the Trustee in good faith with reasonable care. A Trustee may
delegate its duties and responsibilities hereunder to a sub-trustee and
may
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enter from time to time into one or more agency agreements (each a "Trust
Agency Agreement") with such Person or Persons selected by the Trustee
including without limitation any Affiliate of such Trustee (each a "Trust
Agent"), as are by experience and expertise qualified to act in a trustee
capacity and otherwise acceptable to the Initial Beneficiary and any
assignee or pledgee of a SUBI Certificate in connection with a
Securitization. A Trustee shall provide seven days' prior written notice
to the Initial Beneficiary of any such Trust Agency Agreement.
Notwithstanding the foregoing, a Trustee shall replace any Trust Agent if
(i) in the good faith judgment of the Initial Beneficiary, the
compensation or level of service of such Trust Agent shall no longer be
reasonably competitive with those of any alternative agent reasonably
proposed by the Initial Beneficiary, or (ii) if the Trust Agent has
materially breached its obligations under the Trust Agency Agreement, the
Initial Beneficiary or any assignee or pledgee of a UTI Certificate or a
SUBI Certificate in connection with a Securitization has given written
notice to such Trustee and the Trust Agent of such breach, and the Trust
Agent has not cured such breach in all material respects within 15
Business Days thereafter (for purposes of this Agreement, "Business Day"
meaning any day that is not a Saturday, Sunday or other day on which
commercial banking institutions in Maryland, Delaware or any other State
in which the corporate trust office of any Trustee is located are
authorized or obligated by law or executive order to be closed). Such
Trust Agency Agreement shall specify the duties, powers, liabilities,
obligations and compensation of such Trust Agent(s) to carry out on behalf
of such Trustee any or all of its obligations as Trustee of the Trust
arising under this Agreement or otherwise and shall contain a non-petition
covenant substantially identical to that set forth in Section 6.9;
provided, however, that nothing contained in any Trust Agency Agreement
shall excuse, limit or otherwise affect any power, duty, obligation,
liability or compensation otherwise applicable to such Trustee hereunder.
The Trust shall pay such amount to the Trust Agent as reasonable
compensation for its services and shall provide such reimbursement of
expenses as are separately agreed by such Trustee, the Initial Beneficiary
and the Trust Agent. Notwithstanding anything to the contrary herein, in
no event shall any Nominee Agreement be deemed to be a Trust Agency
Agreement, or any Servicer or any Affiliate thereof or any Person referred
to in the penultimate sentence of Section 5.1(d) be deemed to be a Trust
Agent.
Section 5.4. Trustees Not Liable for Certificates, Leases or Fleet
Receivables. A Trustee shall have no obligation to perform any of the duties of
the Initial Beneficiary or any Servicer unless explicitly set forth in this
Agreement or any Servicing Agreement. A Trustee shall at no time have any
responsibility or liability for or with respect to (a) the validity or
sufficiency of this Agreement (except as set forth in Section 6.7) or the due
execution hereof by the Initial Beneficiary or the legality, validity and
enforceability of any security interest in any Trust Asset; (b) the perfection
or priority of such a security interest or the maintenance of any such
perfection and priority; (c) the efficacy of the Trust or its ability to
generate the payments to be distributed to the Initial Beneficiary or its
permitted assignee(s) under this Agreement, including, without limitation, the
existence, condition, location and ownership of any Trust Asset; (d) the
existence and enforceability of any Insurance Policy; (e) the existence and
contents of any Lease, Trust Vehicle or Fleet Receivable or any computer or
other record of any thereof;
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(f) the validity of the assignment of any Trust Asset to the Trust or of any
intervening assignment; (g) the completeness of any Lease; (h) the performance
or enforcement of any Lease or Fleet Receivable; (i) the compliance by the
Initial Beneficiary or any Servicer with any covenant or the breach by the
Initial Beneficiary or any Servicer of any warranty or representation in any
document and the accuracy of any such warranty or representation prior to such
Trustee's receipt of notice or other discovery of any noncompliance therewith or
any breach thereof; (j) any investment of monies by any Servicer or any loss
resulting therefrom (it being understood that such Trustee shall remain
responsible for any Trust Assets that it may hold); (k) the acts or omissions of
the Initial Beneficiary, any Servicer, any other Person or any obligor under, or
in connection with the origination of, any Lease; (l) any action of any Servicer
taken in the name of such Trustee or the acts or omissions of any Servicer under
any Servicing Agreement or any other agreement contemplated hereby or thereby;
(m) any action by such Trustee taken at the instruction of the Initial
Beneficiary, the holder or any pledgee of any Certificate or any Servicer; or
(n) the preparation, execution or filing of any document or report with the
Securities and Exchange Commission or any state securities commission or agency;
provided, however, that the foregoing shall not relieve any Trustee of its
obligation to perform its duties under this Agreement. Except with respect to a
claim based on the failure of a Trustee to perform its duties (i) under this
Agreement to authenticate and deliver Certificates at the request of the Initial
Beneficiary, or (ii) as set forth in Sections 5.1(d) and 6.9, or based on a
Trustee's or any Trust Agent's willful misconduct, bad faith or gross negligence
(or, with respect to the handling or disbursement of funds, negligence), no
recourse shall be had against the Person or institution serving as a Trustee in
its individual capacity for any claim based on any provision of this Agreement
or any Servicing Agreement, or any Trust Asset or assignment thereof. A Trustee
shall not have any personal obligation, liability or duty whatsoever to the
Initial Beneficiary or any permitted assignee(s) thereof or any other Person
with respect to any such claim, and any such claim shall be asserted solely
against the Trust Assets or any indemnitor who shall furnish indemnity as
provided in this Agreement. A Trustee shall not be accountable for the use or
application by the Initial Beneficiary or a Special Purpose Entity of any of the
SUBI Certificates or of the proceeds of such Certificates, or for the use or
application of any funds properly paid to any Servicer pursuant to any Servicing
Agreement.
Section 5.5. Indemnity of Trustees and Trust Agents. Each Trustee
and any Trust Agent shall be indemnified and held harmless (but only, to the
extent, if any, provided in the applicable SUBI Supplement, out of and to the
extent of the Trust Assets allocated to the Portfolio for which such Trustee
acts as trustee) with respect to any loss, liability or expense, including
reasonable attorneys, and other professionals' fees and expenses (collectively
"Claims"), arising out of or incurred in connection with (a) any of the Trust
Assets (including, without limitation, any Claims relating to Leases, Trust
Vehicles, Fleet Receivables, misrepresentation, deceptive and unfair trade
practices, consumer fraud, consumer leasing act violations, and any other claims
arising in connection with any Lease, personal injury or property damage claims
arising with respect to any Unit or any claim with respect to any tax arising
with respect to any Trust Asset) or (b) such Trustee's or Trust Agent's
acceptance or performance of the trusts and duties contained in this Agreement
or any Trust Agency Agreement, with any allocation of such indemnification among
the Trust Assets to be made as provided for in Section 7.1(b) hereof; provided,
however, that neither a Trustee nor any Trust Agent shall be indemnified
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or held harmless out of the Trust Assets as to any Claim (i) for which the
Initial Beneficiary, a Servicer or any of their respective Affiliates shall be
liable pursuant to this Agreement or a Servicing Agreement, (ii) incurred by
reason of such Trustee's or such Trust Agent's willful misfeasance, bad faith or
gross negligence (or, with respect to the handling or disbursement of funds,
negligence), or (iii) incurred by reason of such Trustee Bank's breach of its
respective representations and warranties pursuant to any Servicing Agreement or
of Section 6.2 of this Agreement. The UTI Trustee shall in no event have any
recourse to any SUBI Assets, including such SUBI Assets which were UTI Assets at
the time a Claim against the UTI Trustee arose, and no SUBI Trustee shall have
any recourse to any UTI Assets, including such UTI Assets which were SUBI Assets
at the time a Claim against such SUBI Trustee arose.
Section 5.6. Trustee's Right Not to Act. Notwithstanding anything to
the contrary contained herein, a Trustee shall have the right to decline to act
in any particular manner otherwise provided for herein if such Trustee, being
advised in writing by counsel, determines that such action may not lawfully be
taken, or if such Trustee in good faith shall determine that such action would
be illegal or subject such Trustee Bank to personal liability or be unduly
prejudicial to the rights of other beneficiaries of the Trust.
Section 5.7. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, neither a Trustee Bank nor the
related Trustee shall be required to take any action in any jurisdiction other
than in the State of its incorporation or any State in which it is qualified to
do business (each, a "State of Qualification") if the taking of such action may
(i) require the consent, approval, authorization or order of or the giving of
notice to, or the registration with or the taking of any other action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than a State of Qualification; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than a State of
Qualification becoming payable by the Trust Bank; or (iii) subject the Trustee
Bank to personal jurisdiction in any jurisdiction other than a State of
Qualification for causes of action arising from acts unrelated to the
consummation of the transactions by such Trustee Bank or the related Trustee, as
the case may be, contemplated hereby. In the event that a Trustee does not take
any action because such action may result in the consequences described in the
preceding sentence, such Trustee will appoint, at the expense of the Trust, a
separate trustee or co-trustee pursuant to Section 6.6 to proceed with such
action.
Section 5.8. No Election to be a Corporation. Neither the Trust nor
any Trustee shall make or authorize any Person to make an election to have the
Trust classified or taxed as a corporation for federal income tax purposes or
any applicable state or local income or franchise tax purposes.
PART VI
APPOINTMENT, COMPENSATION AND REMOVAL OF TRUSTEES
Section 6.1. Appointment of Trustees. VMS is hereby designated as
UTI Trustee. Wilmington Trust Company is hereby designated as Delaware Trustee.
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Section 6.2. Qualification of Trustee. Except as otherwise provided
in this Agreement, each Trustee under this Agreement (with the exception of VMS
as the initial UTI Trustee) shall at all times be (a) a bank or trust company
organized under the laws of the United States or one of the fifty states of the
United States or the District of Columbia, with capital and surplus of at least
$100,000,000, and (b) in the case of the Delaware Trustee only, have a principal
place of business, or shall have appointed an agent with a principal place of
business, in the State of Delaware. Any Trustee need not meet the qualifications
set forth in clause (a) above if such Trustee has appointed a Trust Agent that
meets such qualifications.
Section 6.3. Resignation or Removal of Trustee. (a) A Trustee may at
any time resign by giving thirty days' prior written notice to the Initial
Beneficiary and each Certificateholder. Upon receiving the notice of resignation
the holder of the UTI (in the case of the UTI Trustee or the Delaware Trustee)
or the holder of the applicable SUBI (in the case of a SUBI Trustee) shall
promptly appoint a successor Trustee who meets the eligibility requirements set
forth in Section 6.2 by written instrument.
(b) If at any time a Trustee shall cease to be qualified in
accordance with Section 6.2, or if any representation or warranty made by a
Trustee Bank pursuant to Section 6.7 shall prove to have been untrue in any
material respect when made, but such Trustee shall fail to resign after written
request therefor by the holder of the applicable UTI Certificate or SUBI
Certificate or the assignee or pledgee of such UTI Certificate or SUBI
Certificate in connection with a Securitization, or if at any time a Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of a Trustee or of its property shall be appointed, or any public
officer shall take charge or control of a Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then such
Trustee may be removed upon written notice by the holder of the applicable UTI
Certificate or SUBI Certificate or the assignee or pledgee of such UTI
Certificate or SUBI Certificate in connection with a Securitization. If a
Trustee resigns or is removed under the authority of the immediately preceding
sentence, the holder of the applicable UTI Certificate or SUBI Certificate shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee, together with payment of all amounts owed to the
outgoing Trustee.
(c) Any resignation or removal of a Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this part shall not
become effective until acceptance of appointment by the successor Trustee.
Section 6.4. Successor Trustee. Any successor Trustee appointed as
provided in Section 6.3 shall execute, acknowledge and deliver to the Servicer,
the Initial Beneficiary, the holder and each assignee or pledgee of the
applicable UTI Certificate or SUBI Certificate and to its predecessor Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as the
applicable Trustee. The predecessor Trustee shall deliver to
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the successor Trustee all documents and statements held by it under this
Agreement, and the Initial Beneficiary, the holder of the applicable UTI
Certificate or SUBI Certificate and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. No successor Trustee shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee shall be eligible under the provisions of Section 6.2.
Section 6.5. Merger or Consolidation of Trustees. (a) Any entity (i)
into which a Trustee may be merged or consolidated, (ii) which may result from
any merger, conversion, or consolidation to which a Trustee shall be a party, or
(iii) which may succeed to all or substantially all of the corporate trust
business of a Trustee, which entity, if requested by the Initial Beneficiary or
the holder, assignee or pledgee of the applicable SUBI, executes an agreement of
assumption to perform every obligation of such Trustee under this Agreement,
shall be the successor of such Trustee hereunder, provided such entity shall be
eligible pursuant to Section 6.2, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto (other
than the written consent of the Initial Beneficiary or the holder, assignee or
pledgee of the applicable SUBI Certificate).
(b) Upon the happening of any of the events described in Section
6.3, Section 6.4 or paragraph (a) of this Section 6.5, the successor trustee
shall, to the extent required by Delaware law, cause an amendment to the
certificate of trust to be filed with the Secretary of State, in accordance with
the provisions of Section 3810 of the Business Trust Statute, indicating the
change with respect to such Trustee's identity.
Section 6.6. Appointment of Co-Trustee, Separate Trustee, or
Nominee. (a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any Trust Asset may at the time be located, the Initial Beneficiary or the
holder of or the Servicer with respect to the applicable SUBI and a Trustee,
acting jointly, shall have the power to execute and deliver all instruments to
appoint one or more Persons approved by such Persons to act as co-trustee,
jointly with such Trustee, or as a separate trustee or nominee, of all or any
part of the Trust, and to vest in such Person, in such capacity and for the
benefit of the Initial Beneficiary and its permitted assignee(s) , such title to
the Trust Assets, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as such
Persons may consider necessary or desirable. No co-trustee, separate trustee, or
nominee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 6.2, except that no co-trustee,
separate trustee or nominee with respect to any SUBI or any SUBI Assets under
this Agreement may be the Initial Beneficiary or any Affiliate thereof.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the applicable Trustee shall be conferred upon and exercised or
performed by such Trustee
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and such separate trustee and co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without such Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed (whether as a Trustee under this Agreement or as successor to
any Servicer under this Agreement or any Servicing Agreement), such
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of such Trustee;
(ii) no Trustee under this Agreement shall be personally liable by
reason of any act or omission of any other Trustee under this Agreement;
and
(iii) the Initial Beneficiary (or the holder of a SUBI Certificate
for a separate trustee or co-trustee acting with respect to the related
SUBI Portfolio) and a Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to a Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Section. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with a Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, such Trustee. Each
such instrument shall be filed with such Trustee and a copy thereof given to the
Servicer.
Any separate trustee or co-trustee may at any time appoint the
applicable Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts relating to this Agreement
and the Trust Assets shall vest in and be exercised by the applicable Trustee,
to the extent permitted by law, without the appointment of a new or successor
trustee. Notwithstanding anything to the contrary in this Agreement, the
appointment of any separate trustee or co-trustee shall not relieve the
applicable Trustee of its obligations and duties under this Agreement.
Section 6.7. Representations and Warranties of Trustees. (a) Each
Trustee Bank hereby makes the following representations and warranties as of the
date hereof, and the Trustee Banks shall be deemed to remake the following
representations and warranties upon each transfer by the Initial Beneficiary of
a SUBI in connection with a Securitization, on which the Initial Beneficiary,
each of its permitted assignees and pledgees, and each pledgee or holder of a
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Certificate (and beneficial owner of any portion thereof in connection with a
Securitization) may rely:
(i) Organization and Good Standing. The Trustee Bank is a banking
corporation duly organized, validly existing and in good standing under
the law of its jurisdiction of organization;
(ii) Power and Authority. The Trustee Bank has full power, authority
and right to execute, deliver and perform its obligations under this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement;
(iii) Due Execution. This Agreement has been duly executed and
delivered by the Trustee Bank, and is a legal, valid and binding
instrument enforceable against the Trustee Bank in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(iv) No Conflict. Neither the execution and delivery of this
Agreement nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in
a breach of, or constitute a default (with notice or passage of time or
both) under any provision of any federal or Delaware state law,
governmental rule or regulation, or any judgment, decree or order binding
on the Trustee Bank or the articles of association or bylaws of the
Trustee Bank or any provision of any mortgage, indenture, contract,
agreement or other instrument to which the Trustee Bank is a party or by
which it is bound; and
(v) Location of Records. The office where the Trustee keeps its
records concerning the transactions contemplated hereby is located at: (i)
in the case of the SUBI Trustee, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, and (ii) in the case of the Delaware Trustee, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
(b) VMS, as the initial UTI Trustee, hereby makes the following
representations and warranties as of the date hereof, and VMS, so long as VMS is
the UTI Trustee, shall be deemed to remake the following representations and
warranties upon each transfer by the Initial Beneficiary of a SUBI in connection
with a Securitization, on which the Initial Beneficiary, each of its permitted
assignees and pledgees, and each pledgee or holder of a Certificate (and
beneficial owner of any portion thereof in connection with a Securitization) may
rely:
(a) Organization and Good Standing. VMS is a Delaware limited
liability company duly organized, validly existing and in good standing
under the law of its jurisdiction of organization;
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(b) Power and Authority. VMS has full power, authority and right to
execute, deliver and perform its obligations under this Agreement, and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement;
(c) Due Execution. This Agreement has been duly executed and
delivered by VMS, and is a legal, valid and binding instrument enforceable
against VMS in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(d) No Conflict. Neither the execution and delivery of this
Agreement nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in
a breach of, or constitute a default (with notice or passage of time or
both) under any provision of any federal or Delaware state law,
governmental rule or regulation, or any judgment, decree or order binding
on VMS or the limited liability company agreement of VMS or any provision
of any mortgage, indenture, contract, agreement or other instrument to
which VMS is a party or by which it is bound; and
(e) Location of Records. The office where VMS, as the UTI Trustee,
keeps its records concerning the transactions contemplated hereby is
located at 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000.
Section 6.8. Trustee's Fees and Expenses. Each Trustee shall be paid
out of Trust Assets allocated to the Portfolio for which such Trustee acts as
trustee, to the extent, if any, provided in the applicable SUBI Supplement or by
the Servicer, to the extent provided in the Servicing Agreement and any
supplement thereto, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and reimbursement of all reasonable expenses (including without limitation
reasonable attorneys' fees), as may be agreed upon in writing between the
Initial Beneficiary and such Trustee, for all services rendered by it in the
execution of the Trust and in the exercise and performance of any of the powers
and duties under this Agreement.
Section 6.9. No Petition. (a) Each of the Trustee Banks, each
Trustee and the Initial Beneficiary covenants and agrees that prior to the date
which is one year and one day after the date upon which all obligations under
each Securitization have been paid in full, it will not institute against, or
join any other Person in instituting against, the Trust, the Initial
Beneficiary, any other Special Purpose Entity, or any general partner of any
Special Purpose Entity that is a partnership, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law. This Section shall survive the
termination of this Agreement or the resignation or removal of such Trustee
under this Agreement.
(b) No bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy, insolvency or similar law
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shall be instituted by the Trust without the unanimous consent of all Trustees
and Certificateholders hereunder. A SUBI Trustee shall not so consent unless
directed to do so by the holder of the applicable SUBI and each assignee or
pledgee of such SUBI Certificate, and the Delaware Trustee shall not so consent
unless directed to do so by all of the Certificateholders.
Section 6.10. Place of Business. At all times, either the Delaware
Trustee or a co-trustee hereunder shall be a resident of, or have a principal
place of business in, the State of Delaware.
PART VII
ACCOUNTS
Section 7.1. Accounts; Expenses. (a) The UTI Trustee will establish
and maintain with respect to the Undivided Trust Interest such bank accounts as
may be directed in writing by the Initial Beneficiary and each SUBI Trustee will
establish and maintain with respect to each SUBI such bank accounts as may be
set forth in the applicable SUBI Supplement (collectively, the "Trustee
Accounts," and each such Trustee Account with respect to any particular SUBI, a
"SUBI Account"). A Trustee may authorize any Servicer to make deposits into and
to make disbursements from its Trustee Accounts in accordance with the terms and
provisions of this Agreement and any Servicing Agreement.
(b) All Trust expenses shall be paid by the Servicer in accordance
with Section 2.5 of the Servicing Agreement (other than losses with respect to
the Trust Assets). In the event of any failure of the Servicer to pay any
expense of the Trust in accordance with Section 2.5 of the Servicing Agreement,
Trust expenses relating to any particular UTI Portfolio or SUBI Portfolio or any
UTI Trustee or SUBI Trustee shall be paid from the assets of that UTI Portfolio
or SUBI Portfolio to the extent, if any, provided in the applicable Supplement.
To the extent any such expense or liability shall be incurred or suffered with
respect to the Trust Assets generally, all beneficiaries of the Trust shall bear
the burden of such Trust expense or liability ratably in accordance with their
respective share of such expense or liability borne or allocable to their
respective UTI Portfolio or SUBI Portfolio, or, if such allocation is not
practicable, on a pro rata basis in the ratio of the aggregate value of Trust
Assets held in each respective SUBI Portfolio and the UTI Portfolio, as each is
recorded on the books of the Trust, to the total value of all Trust Assets, or
on such other equitable basis as shall be appropriate under the circumstances.
Any pro rata allocation of an expense or liability among one or more of the SUBI
Portfolios or the UTI Portfolio shall be made in good faith and so as not to
disproportionately affect any SUBI Portfolio or the UTI Portfolio.
(c) All or a portion of the funds deposited into each Trustee
Account shall be separately invested by the applicable Trustee from time to time
at the written direction of the Initial Beneficiary or a Special Purpose Entity
(as appropriate) or the applicable Servicer, as its designee, all as specified
in the applicable Servicing Agreement.
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PART VIII
TERMINATION
Section 8.1. Termination of the Trust. (a) The Trust shall dissolve
upon the unanimous written agreement of all of the holders of Certificates. Upon
the dissolution of the Trust, its affairs shall be wound up and its property
liquidated. Thereafter, after paying its liabilities in accordance with Section
3808 of the Business Trust Statute, the Delaware Trustee shall cause the Trust's
certificate of trust to be canceled by filing a certificate of cancellation with
the Secretary of State in accordance with the provisions of Section 3810 of the
Business Trust Statute and the Trust shall terminate.
(b) Any SUBI shall be dissolved and its affairs shall be wound up at
the time or upon the happening of events specified in the applicable SUBI
Supplement. Any SUBI established in accordance with this Agreement may be
dissolved and its affairs wound up without causing the dissolution of the Trust
or any other SUBI thereof. The dissolution, winding up, liquidation or
termination of the Trust or any SUBI thereof shall not affect any limitation of
liability with respect to a SUBI established in accordance with this Agreement,
the Certificate of Trust or Section 3804(a) of the Business Trust Statute. The
death, incapacity, dissolution, termination or bankruptcy of a beneficial owner
of any SUBI shall not result in the termination or dissolution of such SUBI and
such SUBI may not be terminated or revoked by a beneficial owner of such SUBI or
other person except in accordance with the terms of this Agreement or, in the
case of any SUBI, the applicable SUBI Supplement.
(c) The Servicer and any other persons under this Agreement or a
SUBI Supplement which are responsible for winding up the affairs of any SUBI may
in the name of the Trust and for and on behalf of the Trust and such SUBI, take
all actions with respect to the SUBI as are permitted under Section 3808 of the
Business Trust Statute and shall provide for the claims and obligations of the
SUBI and distribute the assets of the SUBI as provided under Section 3808 of the
Business Trust Statute. Any Person, including any Trustee, who under this
Agreement or any SUBI Supplement is responsible for winding up such SUBI'
affairs who has complied with Section 3808(e) of the Business Trust Statute
shall not be personally liable to the claimants of the dissolved SUBI by reason
of such Person's actions in winding up the SUBI.
PART IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment. This Agreement may be amended by written
agreement between the Initial Beneficiary and the UTI Trustee (entered into by
the UTI Trustee at the written direction of the Initial Beneficiary); provided,
however, that any such amendment shall also require the approvals of the
Certificateholders and any pledgee or assignee of a SUBI Certificate to the
extent required pursuant to the terms of the related SUBI Supplement; provided
further, however, that amendments shall not require any approval of
Certificateholders, or pledgees or assignees of any SUBI Certificate, if such
Certificateholders, pledgees or assignees would not be adversely affected by
such amendment. Prior to the execution of any amendment to this Agreement, any
Servicing Agreement or any other agreement contemplated hereby or
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thereby, each Trustee and each Certificateholder shall receive and shall be
entitled to rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent, if any, to such execution and delivery have been satisfied. A Trustee
may, but shall not be obligated to, enter into any such amendment which
adversely affects such Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 9.2. GOVERNING LAW. THIS AGREEMENT SHALL BE CREATED UNDER
AND GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
Section 9.3. Notices. All demands, notices and communications under
this Agreement shall be in writing and shall be delivered or mailed by
registered or certified first class United States mail, postage prepaid, return
receipt requested; hand delivery; prepaid courier service; or telecopier, and
addressed in each case as follows: (a) if to the Initial Beneficiary, c/o Global
Securitization Services, LLC, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Vice President (at Telecopier No. (000) 000-0000); (b) if to the UTI
Trustee, 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel (at Telecopier No. 516-222-3751) and (c) if to the Delaware Trustee Bank
or the Delaware Trustee, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration (at Telecopier No.
302-651-8882) or at such other address as shall be designated by VMS, the
Initial Beneficiary, the UTI Trustee, the Delaware Trustee Bank or the Delaware
Trustee in a written notice to the other parties hereto.
Section 9.4. Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Certificates
or the rights of the holders thereof.
Section 9.5. Construction. For all purposes of this Agreement,
unless the context otherwise requires or as otherwise expressly provided, (a)
all defined terms shall include both the singular and the plural form thereof;
(b) reference to any gender shall include all other genders; (c) all references
to words such as "herein", "hereof" and the like shall refer to this Agreement
as a whole and not to any particular Part or Section within this Agreement; (d)
the term "include" means "include without limitation"; and (e) the term "or" is
intended to include the term "and/or".
Section 9.6. Separate Entity. The Trustees and the Initial
Beneficiary shall in all transactions with third parties hold the Trust out as a
separate entity from the Initial Beneficiary and any Affiliate of the Initial
Beneficiary (the "Initial Beneficiary Group") and the Initial Beneficiary Group
shall do all things necessary to make the Trust continue to be readily
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distinguishable from the Initial Beneficiary and other members of the Initial
Beneficiary Group. In furtherance and not in limitation of the foregoing, the
Trust shall:
(i) practice and adhere to organizational formalities, such as
maintaining appropriate books and records;
(ii) observe all organizational formalities in connection with all
dealings with the Initial Beneficiary Group ;
(iii) observe all procedures required by this Agreement and the laws
of the State of Delaware;
(iv) act solely in its name;
(v) ensure the receipt of proper authorization, when necessary, from
the holders of the Certificates for its actions;
(vi) not (i) have or incur any indebtedness to the Initial
Beneficiary Group; (ii) guarantee or otherwise become liable for any
obligations of the Initial Beneficiary Group; (iii) have obligations
guaranteed by the Initial Beneficiary Group; (iv) hold itself out as
responsible for debts of the Initial Beneficiary Group or for decisions or
actions with respect to the affairs of the Initial Beneficiary Group; (v)
operate or purport to operate as an integrated, single economic unit with
respect to the Initial Beneficiary Group or any other unaffiliated entity;
(vi) seek to obtain credit or incur any obligation to any third party
based upon the assets of the Initial Beneficiary Group or any other
unaffiliated entity; (vii) induce any such third party to reasonably rely
on the creditworthiness of the Initial Beneficiary Group or any other
unaffiliated entity; and (viii) be directly or indirectly named as a
direct or contingent beneficiary or loss payee on any insurance policy of
the Initial Beneficiary Group other than as required by the Transaction
Documents;
(vii) other than as provided in the Transaction Documents, maintain
its deposit and other bank accounts and all of its assets separate from
those of any other Person;
(viii) maintain its financial records separate and apart from those
of any other Person;
(ix) compensate all its agents for services provided to it by such
Persons out of its own funds or reimbursing any of its Affiliates in
respect of amounts paid by such Affiliates for such services;
(x) account for and manage all of its liabilities separately from
those of the Initial Beneficiary Group;
(xi) refrain from filing or otherwise initiating or supporting the
filing of a motion in any bankruptcy or other insolvency proceeding
involving the Initial
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Beneficiary Group to substantively consolidate the Trust or any Affiliate
of the Trust with the Initial Beneficiary; and
(xii) remain solvent.
Section 9.7. No Market in Beneficial Interests. Each of the Initial
Beneficiary and each Trustee covenants and agrees that it will not transfer,
assign, participate, pledge or otherwise dispose of its interest in the Trust,
or cause its interest to be marketed, on or through an established securities
market. No transfer of a beneficial interest in the Trust may be made unless the
transferee makes representations substantially similar to those set forth in
Exhibit D hereto.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, each of the undersigned have caused this Amended
and Restated Origination Trust Agreement to be duly executed by their respective
officers as of the day and year first above written.
RAVEN FUNDING LLC,
as Settlor and Initial Beneficiary
By:_______________________________________
Name:
Title:
PHH VEHICLE MANAGEMENT SERVICES LLC,
as existing settlor and UTI Trustee
By:_______________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee
By:_______________________________________
Name:
Title:
TABLE OF CONTENTS
Page
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PART I
CREATION OF TRUST................................................2
Section 1.1. Creation of Trust........................................2
PART II
TRUST ASSETS.....................................................2
Section 2.1. Trust Assets.............................................2
PART III
ACCEPTANCE BY TRUSTEES...........................................3
Section 3.1. Acceptance by Trustees...................................3
PART IV
BENEFICIAL INTERESTS IN TRUST....................................3
Section 4.1. Undivided Trust Interest.................................3
Section 4.2. Special Units of Beneficial Interest.....................5
Section 4.3. [Intentionally Left Blank.]..............................6
Section 4.4. Form of Certificate: Registration of Certificates........6
Section 4.5. Mutilated, Destroyed, Lost or Stolen Certificates........7
Section 4.6. Retitling of Trust Vehicles..............................7
PART V
DUTIES AND POWERS OF TRUST AND TRUSTEES; TRUSTEE LIABILITY.......8
Section 5.1. Duties and Powers of Trustees; Limitations on
Trust Activity...........................................8
Section 5.2. Duty of Care.............................................9
Section 5.3. Certain Matters Affecting the Trustees..................10
Section 5.4. Trustees Not Liable for Certificates, Leases or
Fleet Receivables.......................................12
Section 5.5. Indemnity of Trustees and Trust Agents..................13
Section 5.6. Trustees Right Not to Act...............................14
Section 5.7. Doing Business in Other Jurisdictions...................14
PART VI
APPOINTMENT, COMPENSATION AND REMOVAL OF TRUSTEES...............14
(i)
Page
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EXHIBITS:
EXHIBIT A Definitions
EXHIBIT B Form of Undivided Trust Interest Certificate
EXHIBIT C Form of Certificate of Trust
(ii)
TABLE OF CONTENTS
Page
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PART I CREATION OF TRUST....................................................2
Section 1.1. Creation of Trust........................................2
PART II TRUST ASSETS........................................................2
Section 2.1. Trust Assets.............................................2
PART III ACCEPTANCE BY TRUSTEES.............................................3
Section 3.1. Acceptance by Trustees...................................3
PART IV BENEFICIAL INTERESTS IN TRUST.......................................3
Section 4.1. Undivided Trust Interest.................................3
Section 4.2. Special Units of Beneficial Interest.....................5
Section 4.3. [Intentionally Left Blank.]..............................6
Section 4.4. Form of Certificate: Registration of Certificates........6
Section 4.5. Mutilated, Destroyed, Lost or Stolen Certificates........7
Section 4.6. Retitling of Trust Vehicles..............................7
PART V DUTIES AND POWERS OF TRUST AND TRUSTEES; TRUSTEE LIABILITY...........8
Section 5.1. Duties and Powers of Trustees; Limitations on
Trust Activity...........................................8
Section 5.2. Duty of Care.............................................9
Section 5.3. Certain Matters Affecting the Trustees..................10
Section 5.4. Trustees Not Liable for Certificates, Leases or
Fleet Receivables.......................................12
Section 5.5. Indemnity of Trustees and Trust Agents..................13
Section 5.6. Trustees Right Not to Act...............................14
Section 5.7. Doing Business in Other Jurisdictions...................14
PART VI APPOINTMENT, COMPENSATION AND REMOVAL OF TRUSTEES..................14
Section 6.1. Appointment of Trustees.................................14
Section 6.2. Qualification of Trustee................................14
Section 6.3. Resignation or Removal of Trustee.......................14
Section 6.4. Successor Trustee.......................................15
Section 6.5. Merger or Consolidation of Trustees.....................15
Section 6.6. Appointment of Co-Trustee, Separate Trustee, or
Nominee.................................................16
Section 6.7. Representations and Warranties of Trustees..............17
Section 6.8. Trustees Fees and Expenses..............................19
Section 6.9. No Petition.............................................19
(i)
Page
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Section 6.10. Place of Business......................................19
PART VII ACCOUNTS..........................................................19
Section 7.1. Accounts; Expenses......................................19
PART VIII TERMINATION......................................................20
Section 8.1. Termination of the Trust................................20
PART IX MISCELLANEOUS PROVISIONS...........................................21
Section 9.1. Amendment...............................................21
Section 9.2. GOVERNING LAW...........................................21
Section 9.3. Notices.................................................21
Section 9.4. Severability of Provisions..............................22
Section 9.5. Construction............................................22
Section 9.6. Separate Entity.........................................22
Section 9.7. No Market in Beneficial Interests.......................23
(ii)
