[Execution Version]
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AMENDED AND RESTATED TRUST AGREEMENT
between
LONG BEACH ACCEPTANCE RECEIVABLES CORP. II
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of March 1, 2003
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Page
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.........................................................................................1
SECTION 1.1. Capitalized Terms...................................................................1
SECTION 1.2. Other Definitional Provisions.......................................................2
ARTICLE II. ORGANIZATION.......................................................................................3
SECTION 2.1. Name................................................................................3
SECTION 2.2. Office..............................................................................3
SECTION 2.3. Purposes and Powers.................................................................3
SECTION 2.4. Appointment of Owner Trustee........................................................6
SECTION 2.5. Initial Capital Contribution to the Trust...........................................6
SECTION 2.6. Declaration of Trust................................................................6
SECTION 2.7. Title to Owner Trust Estate.........................................................6
SECTION 2.8. Situs of Trust......................................................................7
SECTION 2.9. Representations and Warranties of the Transferor....................................7
SECTION 2.10. Covenants of the Certificateholder..................................................9
SECTION 2.11. Federal Income Tax Treatment of the Trust...........................................9
ARTICLE III. CERTIFICATES AND TRANSFER OF INTEREST............................................................10
SECTION 3.1. Initial Ownership..................................................................10
SECTION 3.2. The Certificates...................................................................10
SECTION 3.3. Authentication of Certificates.....................................................10
SECTION 3.4. Registration of Certificates.......................................................10
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates..................................12
SECTION 3.6. Persons Deemed Certificateholders..................................................12
SECTION 3.7. Transfer of Certificates...........................................................12
SECTION 3.8. Disposition In Whole But Not In Part...............................................14
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS...................................................................14
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain Matters..................14
SECTION 4.2. Action by Certificateholder with Respect to Certain Matters........................15
SECTION 4.3. Restrictions on Certificateholder's Power..........................................15
SECTION 4.4. Rights of Note Insurer.............................................................15
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE..............................................................16
SECTION 5.1. General Authority..................................................................16
SECTION 5.2. General Duties.....................................................................16
SECTION 5.3. Action upon Instruction............................................................17
SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions.................17
SECTION 5.5. No Action Except under Specified Documents or Instructions.........................18
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SECTION 5.6. Restrictions.......................................................................18
ARTICLE VI. CONCERNING THE OWNER TRUSTEE......................................................................18
SECTION 6.1. Acceptance of Trusts and Duties....................................................18
SECTION 6.2. Furnishing of Documents............................................................20
SECTION 6.3. Representations and Warranties.....................................................20
SECTION 6.4. Reliance; Advice of Counsel........................................................21
SECTION 6.5. Not Acting in Individual Capacity..................................................21
SECTION 6.6. Owner Trustee Not Liable for Certificates or Receivables...........................21
SECTION 6.7. Owner Trustee May Own Notes........................................................22
SECTION 6.8. Payments from Owner Trust Estate...................................................22
SECTION 6.9. Doing Business in Other Jurisdictions..............................................22
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE....................................................................23
SECTION 7.1. Owner Trustee's Fees and Expenses..................................................23
SECTION 7.2. Indemnification....................................................................23
SECTION 7.3. Payments to the Owner Trustee......................................................23
SECTION 7.4. Non-recourse Obligations...........................................................23
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT..................................................................23
SECTION 8.1. Termination of Trust Agreement.....................................................23
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES............................................24
SECTION 9.1. Eligibility Requirements for Owner Trustee.........................................24
SECTION 9.2. Resignation or Removal of Owner Trustee............................................25
SECTION 9.3. Successor Owner Trustee............................................................25
SECTION 9.4. Merger or Consolidation of Owner Trustee...........................................26
SECTION 9.5. Appointment of Co-Indenture Trustee or Separate Indenture Trustee..................26
ARTICLE X. MISCELLANEOUS......................................................................................28
SECTION 10.1. Supplements and Amendments.........................................................28
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder..........................29
SECTION 10.3. Limitations on Rights of Others....................................................29
SECTION 10.4. Notices............................................................................29
SECTION 10.5. Severability.......................................................................30
SECTION 10.6. Separate Counterparts..............................................................30
SECTION 10.7. Assignments........................................................................31
SECTION 10.8. No Recourse........................................................................31
SECTION 10.9. Headings...........................................................................31
SECTION 10.10. GOVERNING LAW......................................................................31
SECTION 10.11. Servicer...........................................................................31
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SECTION 10.12. Limitation on Liability............................................................31
SECTION 10.13. No Petition........................................................................31
SECTION 10.14. Bankruptcy Matters.................................................................32
SECTION 10.15. Effect of Policy Expiration Date...................................................32
EXHIBITS
EXHIBIT A - Form of Certificate of Trust
EXHIBIT B - Form of Certificate
EXHIBIT C - Form of Transferee's Certificate for Qualified Institutional Buyers
EXHIBIT D - Form of Transferee's Certificate for Institutional Accredited Investors
EXHIBIT E - Form of Transferor's Certificate
EXHIBIT F - Form of ERISA Certificate
EXHIBIT G - Form of Flow Through Entity Certificate
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AMENDED AND RESTATED TRUST AGREEMENT dated as of March 1, 2003
between LONG BEACH ACCEPTANCE RECEIVABLES CORP. II, a Delaware corporation (the
"Transferor"), and Wilmington Trust Company, a Delaware banking corporation,
acting hereunder not in its individual capacity but solely as Owner Trustee (in
such capacity, the "Owner Trustee").
WHEREAS, the Transferor and the Owner Trustee have entered
into a Trust Agreement dated as of February 1, 2003 (the "Original Trust
Agreement"); and
WHEREAS, the Transferor and the Owner Trustee wish to amend
and restate the Original Trust Agreement by entering into this Agreement.
NOW THEREFORE, in consideration of the covenants and
agreements contained herein, the parties hereto agree as follows:
Article I
Definitions
SECTION 1.1.Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below, terms
defined in the singular shall include the plural:
"Agreement" shall mean this Amended and Restated Trust
Agreement, as the same may be further amended and supplemented from time to
time.
"Certificate" means a trust certificate evidencing the entire
beneficial interest in the Trust, substantially in the form of Exhibit B
attached hereto.
"Certificate of Trust" shall mean the Certificate of Trust in
the form of Exhibit A to be filed for the Trust pursuant to Section 3810(a) of
the Statutory Trust Act.
"Certificate Register" and "Certificate Registrar" shall mean
the register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder" or "Holder" shall mean the person in whose
name a Certificate is registered on the Certificate Register.
"Instructing Party" shall have the meaning assigned to such
term in Section 5.3.
"Non-Registered Trust Certificate" means a Certificate other
than a Registered Trust Certificate.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in Collection Account, the Class B Reserve Account or the Note Account
and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Spread Account Agreement.
"Registered Trust Certificate" means a Certificate that was
sold pursuant to a registration statement that has been filed and has become
effective under the Securities Act.
"Secretary of State" means the Secretary of State of the State
of Delaware.
"Statutory Trust Act" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (section) 3801 et. seq. as the same may be amended
from time to time.
"Transferee's Certificate" means a certificate in the form of
Exhibits C or D hereto.
"Transferor's Certificate" means a certificate in the form of
Exhibit E hereto.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust established by this Agreement.
"WTC" means Wilmington Trust Company, a Delaware banking
corporation, in its individual capacity.
SECTION 1.2. Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined
herein have the meanings assigned to them in Annex A to the Sale and Servicing
Agreement.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles as in effect on the
date of this Agreement or any such certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular
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provision of this Agreement; Section and Exhibit references contained in this
Agreement are references to Sections and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
Article II
Organization
SECTION 2.1. Name. There is hereby formed a trust to be known
as "Long Beach Acceptance Auto Receivables Trust 2003-A," in which name the
Owner Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued on behalf of
the Trust.
SECTION 2.2. Office. The principal office of the Trust, and
such additional offices as the Certificateholder may direct the Owner Trustee to
establish, shall be located at such place or places inside or outside the State
of Delaware as the Certificateholder may unanimously designate from time to
time. The Certificateholder hereby designates the office of the Owner Trustee at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration as the principal office of the Trust.
SECTION 2.3. Purposes and Powers. The Trust and the parties to
this Agreement shall be subject to the following provisions regarding the
purposes, powers and procedures of the Trust:
(a) The purpose of the Trust is to engage solely in the
following activities:
(i) to acquire the Owner Trust Estate pursuant to Article II
of the Sale and Servicing Agreement;
(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, to sell and exchange the
Notes and to transfer the Certificate to the Transferor and to pay
interest on and principal of the Notes and distributions on the
Certificates;
(iii) with the proceeds of the sale of the Notes, to fund the
Spread Account and the Class B Reserve Account, and to pay the balance
to the Transferor pursuant to the Sale and Servicing Agreement;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Pledged Property to the Indenture Trustee pursuant to the
Indenture for the benefit of the Note Insurer and the Noteholders and
to hold, manage and distribute to the Certificateholder pursuant to
the terms of the Sale and Servicing Agreement and the Spread Account
Agreement any portion of the Pledged Property released from the Lien
of the Indenture;
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(v) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholder and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
(b) The Trust's only assets shall be the Owner Trust Estate.
Other than the Notes, the Trust shall not secure any indebtedness with any of
the Owner Trust Estate.
(c) Other than with respect to the transfer to the Trust of
the Trust Assets, the Trust shall not do any of the following: acquire any
obligations of, make loans or advances to, borrow funds from, assume or
guarantee the obligations or liabilities of, have its obligations or liabilities
guaranteed by, or hold itself out as responsible for the debts and obligations
of the Owner Trustee, the Certificateholder, LBAC, the Indenture Trustee or any
other person or entity.
(d) The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except in
accordance with the specific limitations set forth in this Agreement and the
other Basic Documents to which the Trust is a party.
(e) The Trust shall, in all dealings with the public, identify
itself under the name of the Trust and as a separate and distinct entity from
any other Person or entity. All transactions and agreements between the Trust
and third parties shall be conducted in the name of the Trust as an entity
separate and independent from the Owner Trustee, the Indenture Trustee, the
Transferor, LBAC and the Certificateholder.
(f) All transactions and agreements between the Trust, on the
one hand, and any of WTC, the Owner Trustee, the Indenture Trustee, the Trust
Collateral Agent, the Custodian, the Transferor, LBAC and the Certificateholder,
on the other hand, shall reflect the separate legal existence of each entity and
will be formally documented in writing. The pricing and other material terms of
all such transactions and agreements shall be on terms substantially similar to
those that would be available on an arm's-length basis with unaffiliated third
parties.
(g) The Trust shall not commingle its funds and other assets
with those of any other Person or business entity and shall maintain its assets
and liabilities in such a manner that it shall not be costly or difficult to
segregate, ascertain or identify its individual assets and liabilities from
those of any other person or entity. The Owner Trustee shall hold the Owner
Trust Estate on behalf of the Trust.
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(h) The Trust shall pay its liabilities and losses as they
become due from the Owner Trust Estate, provided, however, that none of the
Owner Trust Estate shall be used to pay the liabilities (including liability in
respect of guaranties) and losses of WTC, the Transferor, LBAC, the Indenture
Trustee, the Trust Collateral Agent, the Custodian or the Certificateholder. The
Trust has been structured to maintain capital in an amount reasonably sufficient
to meet the anticipated needs of the Trust.
(i) The Trust shall not share any of the same officers or
other employees with the Servicer, the Transferor, LBAC, the Indenture Trustee,
the Trust Collateral Agent, the Custodian or the Certificateholder.
(j) The Trust shall not, jointly with the Servicer, the
Transferor, LBAC, the Indenture Trustee, the Trust Collateral Agent, the
Custodian or the Certificateholder contract or do business with vendors or
service providers or share overhead expenses.
(k) The Trust shall maintain its own bank accounts, books and
records and annual financial statements prepared in accordance with generally
accepted accounting principles, separate from those of WTC, the Owner Trustee,
the Indenture Trustee, the Trust Collateral Agent, the Custodian, the
Transferor, LBAC and the Certificateholder. The foregoing will reflect that the
assets and liabilities of and all transactions and transfers of funds involving
the Trust shall be separate from those of each such other entity, and the Trust
shall pay or bear the cost of the preparation of its own financial statements
and shall not pay or bear the cost of the preparation of the financial
statements of any such other entity. Neither the accounting records nor the
financial statements of the Trust will indicate that the Owner Trust Estate is
available to pay creditors of WTC, the Indenture Trustee, the Trust Collateral
Agent, the Custodian, the Transferor, LBAC or the Certificateholder or any other
person or entity.
(l) The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust without the prior
approval of the Certificateholder and the Transferor and the delivery to the
Owner Trustee by each of the Certificateholder and the Transferor of a
certificate stating that such entity reasonably believes that the Trust is
insolvent.
(m) Each of the Owner Trustee and the Transferor covenants and
agrees that it will not at any time institute against any Certificateholder, or
join in any institution against any Certificateholder of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any United States of America federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates or
this Agreement. The Owner Trustee and the Transferor each covenants and agrees
that it will not, in any capacity, seek the substantive consolidation of the
assets of the Trust with any Certificateholder.
(n) The Certificates cannot be transferred other than pursuant
to Section 3.7.
(o) The Owner Trustee may, pursuant to Section 5.2 of this
Agreement, delegate certain administrative duties relating to the Trust to
specified entities (other than the Certificateholder), which will be authorized
to prepare on behalf of the Trust all documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust to prepare, file
and deliver. However, the Owner Trustee may not delegate any such administrative
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duties to the Certificateholder, and the Certificateholder may not perform any
of the Trust's duties or obligations.
(p) The Certificates shall entitle the Certificateholder only
to the benefits and distributions as are expressly set forth in this Agreement.
(q) The Trust and this Agreement may not be revoked or
terminated except in accordance with Section 8.1 of this Agreement and in no
event shall the Certificateholder have the ability to terminate the Trust
unilaterally.
(r) The Trust shall not consensually merge or consolidate with
any of WTC, the Owner Trustee, the Transferor, LBAC or the Certificateholder.
(s) Neither the Transferor nor the Certificateholder shall
request or instruct the Owner Trustee to take or refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Agreement or contrary to the limited purposes of
the Trust, and the Owner Trustee shall be under no obligation to comply with any
such request or instruction if given.
SECTION 2.4. Appointment of Owner Trustee. The Transferor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution to the Trust. The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial property of the
Trust. The Transferor shall pay organizational expenses of the Trust as they may
arise.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
statutory trust under the Statutory Trust Act and that this Agreement constitute
the governing instrument of such statutory trust. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth
herein and to the extent not inconsistent herewith, in the Statutory Trust Act
with respect to accomplishing the purposes of the Trust. The Owner Trustee shall
file the Certificate of Trust with the Secretary of State.
The Certificateholder shall not have any personal liability
for any liability or obligation of the Trust.
SECTION 2.7. Title to Owner Trust Estate
(a) Legal title to all the Owner Trust Estate shall be vested
at all times in the Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case
may be.
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(b) The Certificateholder shall not have legal title to any
part of the Owner Trust Estate. The Certificateholder shall be entitled to
receive distributions with respect to its undivided ownership interest therein
only in accordance with the Sale and Servicing Agreement and the Spread Account
Agreement. No transfer, by operation of law or otherwise, of any right, title or
interest by the Certificateholder of its ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Owner Trust Estate.
SECTION 2.8. Situs of Trust. The Trust shall be administered
in the State of Delaware.
SECTION 2.9. Representations and Warranties of the Transferor.
The Transferor makes the following representations and warranties on which the
Owner Trustee relies in accepting the Trust Assets in trust and issuing the
Certificates and upon which the Note Insurer relies in issuing the Policy:
(a) Organization and Good Standing. The Transferor is duly
organized and validly existing as a Delaware corporation with power
and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently
conducted and is proposed to be conducted pursuant to this Agreement
and the Basic Documents to which it is a party.
(b) Due Qualification. The Transferor is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions in which
the ownership or lease of its property, the conduct of its business
and the performance of its obligations under this Agreement and the
Basic Documents to which it is a party requires such qualification.
(c) Power; Authority; Execution; Enforceability. The
Transferor has the corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Transferor has
full power and authority to sell and assign the property to be
conveyed and assigned to and deposited with the Trust and the
Transferor has duly authorized such conveyance and assignment and
deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement and the other
Basic Documents to which it is a party has been duly authorized by the
Transferor by all necessary corporate action. The Transferor has duly
executed this Agreement and the other Basic Documents to which it is a
party, and this Agreement and the other Basic Documents to which it is
a party constitute the legal, valid and binding obligations of the
Transferor, enforceable against the Transferor in accordance with
their terms.
(d) No Consent Required. No consent, license, approval or
authorization or registration or declaration with, any Person or with
any governmental authority, bureau or agency is required to be
obtained by the Transferor in connection with the execution, delivery
or performance of this Agreement and the Basic Documents to which the
Transferor is a party, except for such as have been obtained, effected
or made.
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(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents and the
fulfillment of the terms hereof and thereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Transferor, or any
indenture, agreement or other instrument to which the Transferor is a
party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best
of the Transferor's knowledge, any order, rule or regulation
applicable to the Transferor of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties.
(f) No Proceedings. There are no proceedings or investigations
pending or, to its knowledge threatened against it before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of
the Basic Documents to which the Transferor is a party, (B) seeking to
prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents to which the Transferor is a party, (C)
seeking any determination or ruling that might materially and
adversely affect its performance of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic
Documents to which the Transferor is a party, or (D) seeking to
adversely affect the federal income tax or other federal, state or
local tax attributes of the Notes or the Certificates.
(g) No Liens. Upon the conveyance, assignment or other
transfer of any of the Trust Assets by the Transferor to the Trust
pursuant to the Sale and Servicing Agreement, the Transferor will have
conveyed to the Trust good title, free and clear of any lien,
encumbrance or other interests of others (including without
limitation, any claim of any creditor of the Transferor or any of its
Affiliates) of any nature and the Trust will have the right to Grant
and deliver the Pledged Property to the Indenture Trustee in
accordance with the Indenture and upon the Grant and delivery of the
Pledged Property by the Trust to the Indenture Trustee in the manner
contemplated by the Indenture, and assuming the validity and binding
effect of the Indenture, the Indenture Trustee will have obtained a
valid first priority security interest therein, prior to all liens.
(h) Records. Immediately upon the sale or other delivery of
any Trust Assets to the Trust pursuant to the Sale and Servicing
Agreement, the Transferor will make any appropriate notations on its
records to indicate that the Trust Assets have been transferred to the
Trust pursuant to the Sale and Servicing Agreement and, to the extent
it constitutes Pledged Property, has been pledged by the Trust to the
Indenture Trustee to secure payment of the Notes.
(i) No Bankruptcy Petition. The Transferor has no present
intent to cause a voluntary bankruptcy of the Trust.
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(j) Separate Entity. The Transferor will hold itself out to
the public under its own name as a separate and distinct entity and
conduct its business so as not to mislead others as to the identity of
the entity under which those others are concerned. Without limiting
the generality of the foregoing, all oral and written communications,
including without limitation, all letters, invoices, contracts,
statements and applications will be made solely in the name of the
Trust if they are made on behalf of the Trust and solely in the name
of the Transferor if they are made on behalf of the Transferor.
(k) Financial Statements. The Transferor will disclose in all
financial statements that the assets of the Trust are not available to
the Transferor's creditors.
SECTION 2.10. Covenants of the Certificateholder. The
Certificateholder, by its acceptance of a Certificate, agrees:
(a) to be bound by the terms and conditions of the
Certificates of which the Certificateholder is the beneficial owner and of this
Agreement and the other Basic Documents, including any supplements or amendments
hereto and thereto and to perform the obligations of a Certificateholder as set
forth therein or herein, in all respects as if it were a signatory hereto. This
undertaking is made for the benefit of the Trust, the Owner Trustee and the Note
Insurer; and
(b) until one year and one day after the completion of the
events specified in Section 8.1(d), not to, for any reason, institute
proceedings for the Trust to be adjudicated a bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against the Trust, or
file a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or a substantial part of its property, or cause
or permit the Trust to make any assignment for the benefit of its creditors, or
admit in writing its inability to pay its debts generally as they become due, or
declare or effect a moratorium on its debt or take any action in furtherance of
any such action.
SECTION 2.11. Federal Income Tax Treatment of the Trust.
(a) For so long as the Trust has a single owner for federal
income tax purposes, it will, pursuant to Treasury Regulations promulgated under
section 7701 of the Code, be disregarded as an entity distinct from the
Certificateholder for all federal income tax purposes. Accordingly, for federal
income tax purposes, the Certificateholder will be treated as (i) owning all
assets owned by the Trust, (ii) having incurred all liabilities incurred by the
Trust, and (iii) all transactions between the Trust and the Certificateholder
will be disregarded. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust will file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the foregoing
characterization.
(b) In the event that the Trust has two or more equity owners
for federal income tax purposes, the Trust will be treated as a partnership. At
any such time that the Trust has two equity owners, this Agreement will be
amended, in accordance with Section 10.1 herein, and appropriate provisions will
be added so as to provide for treatment of the Trust as a partnership.
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In no event, however, will the Trust engage in any activity which would cause
the Trust to become an association or publicly traded partnership, taxable as a
corporation for Federal income tax purposes.
(c) Neither the Owner Trustee nor any Certificateholder will,
under any circumstances, and at any time, make an election on IRS From 8832 or
otherwise, to classify the Trust as an association taxable as a corporation for
federal, state or any other applicable tax purpose.
Article III.
Certificates and Transfer of Interest
SECTION 3.1. Initial Ownership. Upon the formation of the
Trust by the contribution by the Transferor pursuant to Section 2.5 and until
the issuance of the Certificates, the Transferor shall be the sole beneficiary
of the Trust.
SECTION 3.2. The Certificates. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Owner Trustee. A Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificate or did not hold such
offices at the date of authentication and delivery of such Certificate. A
transferee of a Certificate shall become a Certificateholder, and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder, upon due registration of such Certificate in such transferee's name
pursuant to Section 3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with
the conveyance of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Transferor, signed by its chairman of the board, its
president or any vice president, its treasurer or any assistant treasurer
without further corporate action by the Transferor, in authorized denominations.
No Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit B,
executed by the Owner Trustee or WTC as the Owner Trustee's authentication
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. Each Certificate shall be dated the date of its authentication.
SECTION 3.4. Registration of Certificates
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 2.2, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner Trustee shall provide for the registration of the
10
Certificates and of transfers and exchanges of the Certificates as herein
provided. WTC shall be the initial Certificate Registrar.
(b) The Certificate Registrar shall provide the Trust
Collateral Agent with the name and address of the Certificateholder on the
Closing Date. Upon any transfer of a Certificate, the Certificate Registrar
shall notify the Trust Collateral Agent of the name and address of the
transferee in writing, by facsimile, on the day of such transfer.
(c) Upon surrender for registration of transfer of a
Certificate at the office or agency maintained pursuant to Section 2.2, the
Owner Trustee shall execute, authenticate and deliver (or shall cause WTC as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee, a new Certificate dated the date of authentication by the Owner
Trustee or any authenticating agent.
(d) A Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or his attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Certificate Registrar, which requirements include
membership or participation in the Securities Transfer Agent's Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer or exchange
of a Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of such Certificate.
(f) In furtherance of and in limitation of the foregoing, the
Certificateholder, by acceptance of its Certificate, specifically acknowledges
that it has no right to or interest in any monies at any time held pursuant to
the Spread Account Agreement prior to the release of such monies pursuant to
Section 5.6(d) of the Sale and Servicing Agreement, such monies being held in
trust for the benefit of the Class A Noteholders and the Note Insurer.
Notwithstanding the foregoing, in the event that it is ever determined that
provisions of the Sale and Servicing Agreement and the Spread Account Agreement
shall be considered to constitute a security agreement and the Transferor and
the Certificateholder hereby grant to the Collateral Agent for the benefit of
the Class A Noteholders and the Note Insurer a first priority perfected security
interest in such amounts, to be applied as set forth in Section 3.03 of the
Spread Account Agreement. In addition the Certificateholder, by acceptance of
its Certificate, hereby appoints the Transferor as its agent to pledge a first
priority perfected security interest in the Spread Account, and any amounts held
therein from time to time to the Collateral Agent pursuant to the Spread Account
Agreement and agrees to execute and deliver such instruments of conveyance,
assignment, grant and confirmation, as well as financing statements, in each
case as the Note Insurer shall consider reasonably necessary in order to perfect
the Collateral Agent's Security Interest in the Collateral (as such terms are
defined in the Spread Account Agreement).
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SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar, the Owner Trustee and
(unless a Note Insurer Default shall have occurred and be continuing) the Note
Insurer, such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee, or WTC, as the Owner Trustee's
authenticating agent, shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like class, tenor and denomination. In connection with the issuance of any
new Certificate under this Section, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person
by virtue of becoming a Certificateholder in accordance with this Agreement
shall be deemed to be bound by the terms of this Agreement. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar and the Note Insurer and any agent of the Owner
Trustee, the Certificate Registrar and the Note Insurer, may treat the person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to the Sale and Servicing Agreement and the Spread Account Agreement
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or the Note Insurer nor any agent of the Owner Trustee,
the Certificate Registrar or the Note Insurer shall be bound by any notice to
the contrary.
SECTION 3.7. Transfer of Certificates.
(a) No transfer of a Certificate shall be made unless (I) such
transfer (x) is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or (y) is exempt from
the registration requirements under the Securities Act and such state securities
laws and (II) such transfer is to a Person that satisfies the requirements of
paragraph (a)(2)(i) or (a)(2)(ii) of Rule 3a-7 as then in effect or any
successor rule ("Rule 3a-7") under the Investment Company Act.
(b) Each prospective purchaser of a Non-Registered Certificate
not held in book-entry form shall deliver a completed and duly executed
Transferee's Certificate (in the form of Exhibit C hereto for "qualified
institutional buyers" as defined in Rule 144A of the Securities Act ("Rule
144A") or Exhibit D hereto for "accredited investors" as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act)
to the Owner Trustee and to the Transferor for inspection prior to effecting any
requested transfer. Each prospective seller of a Non-Registered Certificate
(other than with respect to the initial transfer of any such Certificate by the
Transferor shall deliver a completed and duly executed Transferor's Certificate
(in the form of Exhibit E hereto) to the Owner Trustee for inspection prior to
effecting any requested transfer. The Transferor and the Owner Trustee may
conclusively rely upon the information
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contained in any such Transferee's Certificate or Transferor's Certificate in
the absence of actual knowledge to the contrary.
(c) In connection with any transfer, the Owner Trustee may
(except in the case of (x) the initial transfer of any such Certificate by the
Transferor, (y) a transfer to a "qualified institutional buyer" who delivers a
Transferee's Certificate in the form of Exhibit C hereto, or (z) a transfer to a
"accredited investor" who delivers a Transferee's Certificate in the form of
Exhibit D hereto) require an opinion of counsel satisfactory to the Owner
Trustee and the Transferor to the effect that such transfer may be effected
without registration under the Securities Act, which opinion of counsel, if so
required, shall be addressed to the Transferor and the Owner Trustee and shall
be secured at the expense of the holder of a Certificate. The Owner Trustee may
conclusively rely upon the representation of any purchaser made to the Owner
Trustee, and upon such opinion of counsel, and shall be fully protected in so
doing.
(d) No transfer of a Certificate shall be made to any Person
unless the Owner Trustee has received a certificate (substantially in the form
of Exhibit F hereto) from such transferee to the effect that such transferee is
not a Plan, and is not acting on behalf of or investing the assets of a Plan.
The preparation and delivery of the certificate referred to above shall not be
an expense of the Trust, the Owner Trustee or the Transferor but shall be borne
by the transferee. Each transferee of a beneficial ownership interest in a
book-entry Certificate shall be deemed to represent that it is not a Plan and is
not acting on behalf of or investing the assets of a Plan.
(e) No transfer of a Certificate shall be made to any Person
unless the Owner Trustee and Transferor have received a certificate
(substantially in the form of Exhibit G hereto) from such transferee to the
effect that (i) such transferee is acquiring such certificate for its own behalf
and is not acting as agent or custodian for any other Person or entity in
connection with such acquisition, (ii) if the transferee is a partnership,
grantor trust or S corporation for federal income tax purposes (a "Flow Through
Entity"), any certificate (and interest in the Trust in the aggregate) owned by
such Flow Through Entity will represent less than 50% of the value of the assets
owned by such Flow Through Entity and no special allocation of income, gain,
loss, deduction or credit from such certificate will be made among the
beneficial owners of such Flow Through Entity, and (iii) the transferee is a
United States Person within the meaning of the Code.
(f) No transfer, pledge or encumbrance of the Certificate
shall be made to any Person unless (A) such Person is a Rated Entity, a
Bankruptcy Remote Entity or a statutory trust established under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C.(section) 3801 et seq. that is a
Bankruptcy Remote Entity, or (B) such pledge is made to GCFP pursuant to the
Credit and Security Agreement; provided, however, that in the event GCFP
forecloses on its security interest in the Certificate, the Certificate may be
registered in the name of a Person that is not a Bankruptcy Remote Entity for a
period not to exceed two (2) Business Days. The Certificate shall at all times
be registered in the name of a single holder.
(g) The Certificates shall bear legends stating that they have
not been registered under the Securities Act and are subject to the restrictions
on transfer described herein. By purchasing a Certificate, each purchaser shall
be deemed to have agreed to these restrictions on transfer.
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(h) In order to preserve the exemption for resales and
transfers provided by Rule 144A, the Transferor shall provide to any Holder of a
Non-Registered Certificate and any prospective purchaser designated by such
Holder, upon request of such Holder or such prospective purchaser, such
information required by Rule 144A as will enable the resale of such
Non-Registered Certificate to be made pursuant to Rule 144A. The Owner Trustee
shall cooperate with the Transferor in providing the Transferor such information
regarding the Non-Registered Certificates, the Trust Assets and other matters
regarding the Trust as the Transferor shall reasonably request to meet its
obligations under the preceding sentence.
(i) Notwithstanding any provision of this Agreement to the
contrary, any transfer of Certificates that causes the total number of
beneficial owners of Certificates to exceed ninety-nine (99) shall be null and
void and the Certificate Register shall be amended to reflect such voided
transfer.
SECTION 3.8. Disposition In Whole But Not In Part. A
Certificate may be transferred in whole but not in part. Any attempted transfer
of the Certificate that would divide the beneficial ownership in the Trust shall
be void.
Article IV.
Voting Rights and Other Actions
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless at least thirty (30) days before the taking of such
action, the Owner Trustee shall have notified the Certificateholder and the Note
Insurer in writing of the proposed action and the Certificateholder shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that the Certificateholder has withheld consent or provided
alternative direction:
(a) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Statutory Trust Act or unless such amendment would not materially and adversely
affect the interests of the Certificateholder);
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder; or
(d) except pursuant to Section 13.1 of the Sale and Servicing
Agreement, the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholder.
The Owner Trustee shall notify the Certificateholder in
writing of any appointment of a successor Note Registrar or Trust Collateral
Agent within five Business Days after receipt of notice thereof.
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SECTION 4.2. Action by Certificateholder with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
direction of the Controlling Party or, after the Class A Notes and Reimbursement
Obligations have been paid and full and the expiration of the Policy in
accordance with its terms, the Certificateholder in accordance with the Basic
Documents, to (a) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 9.1 thereof or (b) except as expressly provided in the Basic
Documents, sell the Receivables after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Controlling Party or the
Certificateholder, as applicable and the furnishing of indemnification
satisfactory to the Owner Trustee by the Certificateholder. To the fullest
extent permitted by applicable law, the Owner Trustee shall not have the power
to, and shall not, commence any proceeding or other actions contemplated by
Section 2.10 (b).
SECTION 4.3. Restrictions on Certificateholder's Power.
(a) The Certificateholder shall not direct the Owner Trustee
to take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the Basic Documents or would be contrary to Section 2.3 nor
shall the Owner Trustee be obligated to follow any such direction, if given.
(b) The Certificateholder shall not have any right by virtue
or by availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement or any Basic Document, unless the Certificateholder is the Instructing
Party pursuant to Section 5.3 and unless the Certificateholder previously shall
have given to the Owner Trustee a written notice of default and of the
continuance thereof, as provided in this Agreement, and also unless
Certificateholder shall have made written request upon the Owner Trustee to
institute such action, suit or proceeding in its own name as Owner Trustee under
this Agreement and shall have offered to the Owner Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Owner Trustee, for thirty (30) days after
its receipt of such notice, request, and offer of indemnity, shall have
neglected or refused to institute any such action, suit, or proceeding, and
during such 30-day period no request or waiver inconsistent with such written
request has been given to the Owner Trustee pursuant to and in compliance with
this Section or Section 5.3. For the protection and enforcement of the
provisions of this Section, the Certificateholder and the Owner Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 4.4. Rights of Note Insurer. Notwithstanding anything
to the contrary in the Basic Documents, without the prior written consent of the
Note Insurer (so long as no Note Insurer Default shall have occurred and be
continuing), the Owner Trustee shall not (i) remove the Servicer, (ii) initiate
any claim, suit or proceeding by the Trust or compromise any claim, suit or
proceeding brought by or against the Trust, other than with respect to the
enforcement of any Receivable or any rights of the Trust thereunder, (iii)
authorize the merger or consolidation of the Trust with or into any other
statutory trust or other entity (other than in accordance with Section 3.10 of
the Indenture) or (iv) amend the Certificate of Trust (except as may be required
by the Statutory Trust Act).
15
Article V.
Authority and Duties of Owner Trustee
SECTION 5.1. General Authority.
(a) The Owner Trustee is authorized and directed to execute
and deliver the Basic Documents to which the Trust is named as a party and each
certificate or other document attached as an exhibit to or contemplated by the
Basic Documents to which the Trust is named as a party and any amendment
thereto, in each case, in such form as the Transferor shall approve as evidenced
conclusively by the Owner Trustee's execution thereof, and on behalf of the
Trust, to direct the Indenture Trustee to authenticate and deliver the Class A-1
Notes in the aggregate principal amount of $45,500,000, the Class A-2 Notes in
the aggregate principal amount of $65,000,000, the Class A-3 Notes in the
aggregate principal amount of $68,000,000, the Class A-4 Notes in the aggregate
principal amount of $64,000,000 and the Class B Notes in the aggregate principal
amount of $7,500,000. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Owner Trustee is further authorized
from time to time to take such action as the Instructing Party recommends with
respect to the Basic Documents so long as such activities are consistent with
the terms of the Basic Documents.
(b) The Owner Trustee shall sign on behalf of the Trust any
applicable tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents.
SECTION 5.2. General Duties. It shall be the duty of the Owner
Trustee:
(i) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to
administer the Trust in the interest of the Certificateholder, subject
to the Basic Documents and in accordance with the provisions of this
Agreement; and
(ii) to execute on behalf of the Trust any license, approval,
authorization or registration required by any governmental authority,
bureau or agency, as notified by the Servicer and presented to the
Owner Trustee in final execution form, with respect to which the
failure to maintain any such license, approval, authorization or
registration would have an adverse effect on the validity and
enforceability of the Indenture, the Notes or the Owner Trust Estate.
Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Servicer has agreed in the Sale and
Servicing Agreement to perform any act or to discharge any duty of the Trust or
the Owner Trustee hereunder or under any Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Servicer to carry out its
obligations under the Sale and Servicing Agreement.
16
SECTION 5.3. Action upon Instruction.
(a) Subject to Article IV and the terms of the Spread Account
Agreement, the Note Insurer (so long as a Note Insurer Default shall not have
occurred and be continuing) or the Certificateholder (if a Note Insurer Default
shall have occurred and be continuing) (the "Instructing Party") shall have the
exclusive right to direct the actions of the Owner Trustee in the management of
the Trust, so long as such instructions are not inconsistent with the express
terms set forth herein or in any Basic Document. The Instructing Party shall not
instruct the Owner Trustee in a manner inconsistent with this Agreement or the
Basic Documents.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, the Owner Trustee shall promptly give notice
(in such form as shall be appropriate under the circumstances) to the
Instructing Party requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Instructing Party received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholder, and shall have no liability to
any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the Instructing
Party requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Basic
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any
17
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Owner Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Owner Trustee is a party, except as expressly provided by the terms of this
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 5.3; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against the Owner Trustee. The
Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for the Trust or to record
this Agreement or any Basic Document. WTC nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Owner Trust Estate that result from
actions by, or claims against, WTC and that are not related to the ownership or
the administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Instructing Party shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
Article VI.
Concerning the Owner Trustee
SECTION 6.1. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence, (ii) in the
case of the inaccuracy of any representation or warranty contained in Section
6.3 expressly made by the Owner Trustee, (iii) for liabilities arising from the
failure of WTC to perform obligations expressly undertaken by it in the last
sentence of Section 5.4 hereof, (iv) for any investments issued by the Owner
Trustee or any branch or Affiliate thereof in its commercial capacity or (v) for
taxes, fees or other charges on, based on or measured by, any fees, commissions
or compensation received by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
18
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Instructing Party, the Servicer or the Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Transferor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on a Certificate, and the Owner Trustee shall in
no event assume or incur any liability, duty or obligation to the Note Insurer,
Indenture Trustee, Trust Collateral Agent, the Collateral Agent, any Noteholder
or to any Certificateholder, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Note Insurer, the Indenture Trustee, the Trust Collateral
Agent or the Servicer under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the obligations
under this Agreement or the Basic Documents that are required to be performed by
the Indenture Trustee under the Indenture or the Trust Collateral Agent or the
Servicer under the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of the Instructing Party or the Certificateholder, unless such
Instructing Party or Certificateholder has offered to the Owner Trustee security
or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence, bad faith
or willful misconduct in the performance of any such act;
(h) with respect to the Note Insurer or Instructing Party, the
Owner Trustee undertakes to perform or observe only such of the covenants and
obligations of the Owner Trustee as are expressly set forth in this Agreement,
and no implied covenants or obligations
19
with respect to the Note Insurer or Instructing Party shall be read into this
Agreement or the other Basic Documents against the Owner Trustee. The Owner
Trustee shall not be deemed to owe any fiduciary duty to the Note Insurer or
Instructing Party, and shall not be liable to any such person for the failure of
the Trust to perform its obligations to such persons other than as a result of
the gross negligence or willful misconduct of the Owner Trustee in the
performance of its express obligations under this Agreement; and
(i) notwithstanding anything to the contrary herein or in any
other document, the Owner Trustee shall not be required to execute, deliver or
certify on behalf of the Trust, the Servicer, the Transferor or any other Person
any filings, certificates, affidavits or other instruments required by the SEC
or required under the Xxxxxxxx-Xxxxx Act of 2002. Notwithstanding any Person's
right to instruct the Owner Trustee, neither the Owner Trustee nor any agent,
employee, director or officer of the Owner Trustee shall have any obligation to
execute any certificates or other documents required by the SEC or required
pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the rules and regulations
promulgated thereunder, and the refusal to comply with any such instructions
shall not constitute a default or breach under this Agreement or any other
document in connection herewith.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. The Owner Trustee
and WTC hereby represent and warrant to the Transferor, the Certificateholder
and the Note Insurer (which shall have relied on such representations and
warranties in issuing the Policy), that:
(a) It is a Delaware banking corporation, duly organized and
validly existing in good standing under the laws of the State of
Delaware and it holds all grants, authorizations, consents, orders and
approvals from all governmental authorities necessary under the laws
of the State of Delaware to carry on its true business as now
conducted. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any Delaware state or federal law, governmental rule
or regulation governing the banking or trust powers of the Owner
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound, or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Assets
resulting
20
from actions by or claims against the Owner Trustee in its individual
capacity except as expressly contemplated by this Agreement or
Indenture.
(d) No consent, approval, authorization or order of, or filing
with, any court or regulatory, supervisory or government agency or
body is required by the Owner Trustee under Delaware law in connection
with the execution, delivery and performance by the Owner Trustee of
this Agreement or the consummation by the Owner Trustee of the
transactions contemplated hereby (except for the filing of the
Certificate of Trust with the Secretary of State).
(e) The Owner Trustee has no present intent to cause a
voluntary bankruptcy of the Trust.
SECTION 6.4. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion not
contrary to this Agreement or any Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as
provided in Article II and this Article VI, in accepting the trusts hereby
created WTC acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Transferor and the
21
Owner Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or of the Certificates (other than the
signature and countersignature of the Owner Trustee on the Certificates) or the
Notes, or of any Receivable or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and priority of
any security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments to
be distributed to Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Transferor,
the Servicer or any other Person with any warranty or representation made under
any Basic Document or in any related document or the accuracy of any such
warranty or representation or any action of the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee.
SECTION 6.7. Owner Trustee May Own Notes. The Owner Trustee in
its individual capacity may become the owner or pledgee of the Notes and may
deal with the Certificateholder, the Transferor, the Indenture Trustee and the
Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
SECTION 6.8. Payments from Owner Trust Estate. All payments to
be made by the Owner Trustee under this Agreement or any of the Basic Documents
to which the Trust or the Owner Trustee is a party shall be made only from the
income and proceeds of the Owner Trust Estate and only to the extent that the
Owner Trust shall have received income or proceeds from the Owner Trust Estate
to make such payments in accordance with the terms hereof. WTC, or any successor
thereto, in its individual capacity, shall not be liable for any amounts payable
under this Agreement or any of the Basic Documents to which the Trust or the
Owner Trustee is a party.
SECTION 6.9. Doing Business in Other Jurisdictions.
Notwithstanding anything contained to the contrary, neither WTC or any successor
thereto, nor the Owner Trustee shall be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.5 hereof, (i) require the consent or approval or
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 the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by WTC (or any successor thereto); or (iii) subject
WTC (or any successor thereto) to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by WTC (or any successor
thereto) or the Owner Trustee, as the case may be, contemplated hereby.
22
Article VII.
Compensation of Owner Trustee
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between LBAC and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by LBAC
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder and under the
Basic Documents.
SECTION 7.2. Indemnification. Each of the Owner Trustee and
WTC and its officers, directors, successors, assigns, agents and servants shall
be indemnified by the Servicer in and to the extent set forth in Section
8.2(a)(v) of the Sale and Servicing Agreement.
SECTION 7.3. Payments to the Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
SECTION 7.4. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Basic Document, the Owner Trustee agrees in
its individual capacity and in its capacity as Owner Trustee for the Trust that
all obligations of the Trust to the Owner Trustee individually or as Owner
Trustee for the Trust shall be recourse to the Owner Trust Estate only and
specifically shall not be recourse to the assets of the Certificateholder.
Article VIII.
Termination of Trust Agreement
SECTION 8.1. Termination of Trust Agreement.
(a) This Agreement shall terminate and the Trust shall wind up
and dissolve and be of no further force or effect upon the latest of (i) the
maturity or other liquidation of the last Receivable and the subsequent
distribution of amounts in respect of such Receivables as provided in the Basic
Documents, (ii) the payment to the Certificateholder of all amounts required to
be paid to it pursuant to this Agreement and the payment to the Note Insurer of
all amounts payable or reimbursable to it pursuant to the Sale and Servicing
Agreement, (iii) the expiration of the Policy in accordance with its terms; or
(iv) payment to the Note Insurer in full of all Reimbursement Obligations;
provided, however, that the rights to indemnification under Section 7.2 and the
rights under Section 7.1 shall survive the termination of the Trust. The
Servicer shall promptly notify the Owner Trustee and the Note Insurer of any
prospective termination pursuant to this Section. The bankruptcy, liquidation,
dissolution, death or incapacity of the Certificateholder, shall not (x) operate
to terminate this Agreement or the Trust, nor (y) entitle the
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the
23
Trust or Owner Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Neither the Transferor nor the Certificateholder shall be
entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Payment Date upon which the Certificateholder shall surrender the Certificate to
the Trust Collateral Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the
Certificateholder mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 10.1(c) of the Sale and
Servicing Agreement, stating (i) the Payment Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and surrender
of the Certificates at the office of the Trust Collateral Agent therein
designated, (ii) the amount of any such final payment, (iii) that the Record
Date otherwise applicable to such Payment Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the office of
the Trust Collateral Agent therein specified and (iv) interest will cease to
accrue on the Certificates. The Owner Trustee shall give such notice to the
Trust Collateral Agent at the time such notice is given to the
Certificateholder. Upon presentation and surrender of the Certificates, the
Trust Collateral Agent shall cause to be distributed to the Certificateholder
amounts distributable on such Payment Date pursuant to Section 5.6 of the Sale
and Servicing Agreement.
In the event that the Certificateholder shall not surrender
the Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Trust Collateral Agent shall give a
second written notice to the Certificateholder to surrender the Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trust Collateral Agent may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
Certificateholder concerning surrender of the Certificates, and the cost thereof
shall be paid out of the funds and other assets that shall remain subject to
this Agreement. Any funds remaining in the Trust after exhaustion of such
remedies shall be distributed, subject to applicable escheat laws, by the Trust
Collateral Agent to the Certificateholder.
(d) Upon the winding up of the Trust and its dissolution, the
Owner Trustee shall cause the 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 Statutory Trust Act.
Article IX.
Successor Owner Trustees and Additional Owner Trustees
SECTION 9.1. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation or national banking
association (i) satisfying the provisions of Section 3807(a) of the Statutory
Trust Act; (ii) authorized to exercise corporate trust powers; (iii) having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or State authorities; and (iv) acceptable to the Note
24
Insurer in its sole discretion, so long as a Note Insurer Default shall not have
occurred and be continuing. If such entity shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving sixty days' written notice thereof to the Transferor, the
Certificateholder, the Note Insurer and the Servicer. Upon receiving such notice
of resignation, the Certificateholder shall, with the prior written consent of
the Note Insurer, promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee, provided
that the Certificateholder shall have received written confirmation from each of
the Rating Agencies that the proposed appointment will not result in an
increased capital charge to the Note Insurer by either of the Rating Agencies.
If no successor Owner Trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Owner Trustee or the Note Insurer may petition any
court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Certificateholder, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Certificateholder with the consent of the
Note Insurer (so long as a Note Insurer Default shall not have occurred and be
continuing) may remove the Owner Trustee. If the Certificateholder shall remove
the Owner Trustee under the authority of the immediately preceding sentence, the
Certificateholder shall, with the prior written consent of the Note Insurer,
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed, one copy to the Note Insurer and one copy to the successor Owner
Trustee and payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 9.3 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Certificateholder shall provide
notice of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 9.2 shall execute, acknowledge and deliver
to the Transferor, the
25
Certificateholder, the Servicer, the Note Insurer and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee. The predecessor Owner Trustee shall upon
payment of its fees and expenses deliver to the successor Owner Trustee all
documents and statements and monies held by it under this Agreement; and the
Transferor, the Certificateholder and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, (i) the Servicer shall mail notice of the successor of
such Owner Trustee to the Certificateholder, the Indenture Trustee, the
Noteholders and the Rating Agencies and (ii) the successor Owner Trustee shall
file an amendment to the Certificate of Trust with the secretary of State
identifying its name and principal place of business in the State of Delaware.
If the Servicer shall fail to mail such notice within ten (10) days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 9.1,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee (i) shall mail notice of such merger or
consolidation to the Rating Agencies and (ii) shall file an amendment to the
Certificate of Trust as required under Section 9.3, above.
SECTION 9.5. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Owner Trust Estate or any Financed Vehicle may at the
time be located, the Servicer and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee and the Note Insurer to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all
or any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Servicer and the Owner Trustee may consider necessary or
desirable. If the Servicer shall not have joined in such appointment within 15
days after the receipt by it of a request so to
26
do, the Owner Trustee subject, unless a Note Insurer Default shall have occurred
and be continuing, to the approval of the Note Insurer (which approval shall not
be unreasonably withheld) shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 9.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the 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 the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Servicer and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer and the Note Insurer.
27
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Article X.
Miscellaneous
SECTION 10.1. Supplements and Amendments.
(a) This Agreement may be amended by the Transferor and the
Owner Trustee, with the prior written consent of the Note Insurer (so long as a
Note Insurer Default shall not have occurred and be continuing) and with prior
written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholder, (i) to cure any ambiguity or defect or
(ii) to correct, supplement or modify any provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel which may be based upon a certificate of the Servicer, delivered to the
Owner Trustee, the Rating Agencies and the Note Insurer, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time, with
the prior written consent of the Note Insurer (so long as a Note Insurer Default
shall not have occurred and be continuing) by the Transferor and the Owner
Trustee, with prior written notice to the Rating Agencies, to the extent such
amendment materially and adversely affects the interests of the Class A
Noteholders, with the consent of the Class A Noteholders evidencing not less
than 50% of the outstanding Class A Note Balance, to the extent such amendment
materially and adversely affects the interests of the Class B Noteholders, with
the consent of the Class B Noteholders evidencing not less than 50% of the
outstanding Class B Note Balance and, the consent of the Certificateholder
(which consent of any Certificateholder given pursuant to this Section or
pursuant to any other provision of this Agreement shall be conclusive and
binding on such Certificateholder and any future Certificateholder) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholder; provided, however, that, subject to
the express rights of the Note Insurer under the Basic Documents, no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (b) reduce the aforesaid percentage of
the Class A Note Balance, the Class B Note Balance or the Certificateholders
required to consent to any such amendment, without the consent of the
Noteholders of all the outstanding Class A Notes and/or Class B Notes, as
applicable, or the Certificateholder, as the case may be.
Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and each of
the Rating Agencies.
It shall not be necessary for the consent of
Certificateholder, the Noteholders or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the
Certificateholder provided for in this Agreement or in any other Basic Document)
and of evidencing the
28
authorization of the execution thereof by Certificateholder shall be subject to
such reasonable requirements as the Owner Trustee may prescribe. Promptly after
the execution of any amendment to the Certificate of Trust, the Owner Trustee
shall cause the filing of such amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or
the Certificate of Trust, the Owner Trustee and the Note Insurer shall be
entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any part
of the Owner Trust Estate. The Certificateholder shall be entitled to receive
distributions in accordance with the Sale and Servicing Agreement. No transfer,
by operation of law or otherwise, of any right, title or interest of the
Certificateholder to and in its ownership interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Owner Trustee, the
Transferor, the Certificateholder, the Servicer and, to the extent expressly
provided herein, the Note Insurer, the Indenture Trustee and the Noteholders,
and nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 10.4. Notices.
(a) Unless otherwise expressly specified or permitted by the
terms hereof, all notices shall be in writing and shall be deemed given upon
receipt personally delivered, sent by facsimile transmission (with appropriate
confirmation) delivered by overnight courier or mailed first class mail or
certified mail, in each case return receipt requested, and shall be deemed to
have been duly given upon receipt:
(i) if to the Owner Trustee, addressed to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(Telecopy Number: (000) 000-0000)
29
(ii) if to the Transferor, addressed to:
Long Beach Acceptance Receivables Corp. II
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
(Telecopy Number: (000) 000-0000)
(iii) if to the Note Insurer, addressed to
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Insured Portfolio Management
Asset-Backed (IPM-AB)
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Fascimile No.: (000) 000-0000
Confirmation: (000) 000-0000
(iv) in the case of the Rating Agencies, addressed to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
and
Standard & Poor's Ratings Service
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of the Certificateholder in the register maintained by the Owner
Trustee. Any notice so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall
30
be an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 10.7. Assignments. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
SECTION 10.8. No Recourse. The Certificateholder by accepting
a Certificate acknowledges that the Certificate represents a beneficial interest
in the Trust only and does not represent interests in or obligations of the
Transferor, the Servicer, the Owner Trustee, the Indenture Trustee, the Note
Insurer or any Affiliate thereof and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificate or the Basic Documents.
SECTION 10.9. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.10. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 10.11. Servicer. The Servicer is authorized to
prepare, or cause to be prepared, execute and deliver on behalf of the Trust all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust or Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents. Upon written request, the Owner Trustee shall
execute and deliver to the Servicer a limited power of attorney appointing the
Servicer the Trust's agent and attorney-in-fact to prepare, or cause to be
prepared, execute and deliver all such documents, reports, filings, instruments,
certificates and opinions.
SECTION 10.12. Limitation on Liability. With respect to the
Note Insurer, the Owner Trustee undertakes to perform or observe only such of
the covenants and obligations of the Owner Trustee as are expressly set forth in
this Agreement, and no implied covenants or obligations with respect to the Note
Insurer shall be read into this Agreement or the other Basic Documents against
the Owner Trustee. The Owner Trustee shall not be deemed to owe any fiduciary
duty to the Note Insurer, and shall not be liable to any such person for the
failure of the Trust to perform its obligations to such persons other than as a
result of the gross negligence or willful misconduct of the Owner Trustee in the
performance of its express obligations under this Agreement.
SECTION 10.13. No Petition. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), by entering into this
Agreement, the Certificateholder, by accepting the Certificate, and the
Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Transferor, or join in any institution against the Transferor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under
31
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, this Agreement or any
other Basic Documents.
SECTION 10.14. Bankruptcy Matters. To the fullest extent
permitted by law, the Certificateholder or any party to this Agreement shall not
take any action to cause the Trust to dissolve in whole or in part or file a
voluntary petition or otherwise initiate proceedings to have the Trust
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust as debtor under any applicable
federal or state law relating to bankruptcy, insolvency or other relief for
debts with respect to the Trust; or seek or consent to the appointment of any
trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator
(or other similar official) of the Trust or of all or any substantial part of
the properties and assets of the Trust, or cause the Trust to make any general
assignment for the benefit or creditors of the Trust or take any action in
furtherance of any of the above actions unless the Certificateholder and the
Indenture Trustee shall have provided their written consent.
SECTION 10.15. Effect of Policy Expiration Date.
Notwithstanding anything to the contrary set forth herein, all references to any
right of the Note Insurer to direct, appoint, consent to, accept, approve of,
take or omit to take any action under this Agreement or any other Basic Document
shall be inapplicable at all times after the Policy Expiration Date, and if such
reference provides for another party or parties to take or omit to take any such
action following a Note Insurer Default, such party or parties shall also be
entitled to take or omit to take such action following the Policy Expiration
Date and (ii) if such reference does not provide for another party or parties to
take or omit to take any such action following a Note Insurer Default, then the
Indenture Trustee acting at the direction of the Majorityholders shall have the
right to take or omit to take any such action following the Policy Expiration
Date. In addition, any other provision of this Agreement or any other Basic
Document which is operative based in whole or in part on whether a Note Insurer
Default has or has not occurred shall, at all times on or after the Policy
Expiration Date, be deemed to refer to whether or not the Policy Expiration Date
has occurred.
32
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY, as Owner Trustee
By:
----------------------------------------
Name:
Title:
LONG BEACH ACCEPTANCE RECEIVABLES CORP. II
By:
----------------------------------------
Name:
Title:
[Trust Agreement]
EXHIBIT A
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2003-A
This Certificate of Trust of LONG BEACH ACCEPTANCE AUTO
RECEIVABLES TRUST 2003-A (the "Trust") is being duly executed and filed by the
undersigned, as trustee, to form a statutory trust under the Statutory Trust Act
(12 Del. C. (section)3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is LONG
BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2003-A.
2. Owner Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust will be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust in accordance with Section
3811(a) of the Act.
WILMINGTON TRUST COMPANY, as Owner Trustee
By:
----------------------------------------
Name:
Title:
EXHIBIT B
[FORM OF CERTIFICATE]
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY STATE.
ACCORDINGLY, ANY TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS
SET FORTH IN SECTION 3.7 OF THE TRUST AGREEMENT. BY ITS ACCEPTANCE OF THIS
CERTIFICATE THE HOLDER OF THIS CERTIFICATE IS DEEMED TO REPRESENT TO THE
TRANSFEROR AND THE OWNER TRUSTEE (I) THAT IT IS AN INSTITUTIONAL INVESTOR THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND
NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT AND IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT
FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE BY ANY PERSON
UNLESS EITHER (I) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE TRANSFEROR,
(II) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE
TRUST AGREEMENT, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY), (III) SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE OR
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (IV) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN WHICH CASE (A) THE OWNER TRUSTEE SHALL
REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE TRANSFEROR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER,
WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER
TRUSTEE AND THE TRANSFEROR, AND (B) THE OWNER TRUSTEE MAY REQUIRE A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE TRUST, THE
TRANSFEROR OR THE OWNER TRUSTEE) SATISFACTORY TO THE TRANSFEROR AND THE OWNER
TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT. NO
SALE, PLEDGE OR OTHER TRANSFER MAY BE MADE TO ANY ONE PERSON FOR CERTIFICATES
WITH A FACE AMOUNT OF LESS THAN $100,000 AND, IN THE CASE OF ANY PERSON ACTING
ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION
3(A)(2) OF THE SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $100,000 FOR EACH SUCH THIRD PARTY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE PERMITTED TO BE MADE TO ANY PERSON
UNLESS THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE FROM SUCH TRANSFEREE TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA OR (B) A PLAN
(AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE")) THAT IS SUBJECT TO SECTION 4975 OF THE CODE (EACH, A
"BENEFIT PLAN"), AND IS NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A
BENEFIT PLAN. EACH TRANSFEREE OF A BENEFICIAL OWNERSHIP INTEREST IN THIS
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A BENEFIT PLAN AND IS
NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A BENEFIT PLAN.
NO TRANSFER OR SALE OF THIS CERTIFICATE SHALL BE PERMITTED TO BE MADE IF THE
TRANSFER OR SALE INCREASES THE NUMBER OF CERTIFICATEHOLDERS TO MORE THAN
NINETY-NINE (99).
THE HOLDER OF THIS CERTIFICATE REPRESENTS, BY VIRTUE OF ITS ACCEPTANCE HEREOF,
(I) THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN BEHALF AND IS NOT ACTING
AS AGENT OR CUSTODIAN FOR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH SUCH
ACQUISITION, (II) IF THE HOLDER IS A PARTNERSHIP, GRANTOR TRUST OR S CORPORATION
FOR FEDERAL INCOME TAX PURPOSES (A "FLOW-THROUGH ENTITY"), ANY CERTIFICATES
OWNED BY SUCH FLOW-THROUGH ENTITY WILL REPRESENT LESS THAN 50% OF THE VALUE OF
ALL THE ASSETS OWNED BY SUCH FLOW-THROUGH ENTITY AND NO SPECIAL ALLOCATION OF
INCOME, GAIN, LOSS, DEDUCTION OR CREDIT FROM SUCH CERTIFICATES WILL BE MADE
AMONG THE BENEFICIAL OWNERS OF SUCH FLOW-THROUGH ENTITY, AND (III) THE HOLDER IS
A UNITED STATES PERSON WITHIN THE MEANING OF THE CODE.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN
SECTION 3.7 OF THE AGREEMENT.
B-2
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2003-A
UNDER AMENDED AND RESTATED TRUST AGREEMENT
DATED AS OF MARCH 1, 2003
Certificate Number:
Wilmington Trust Company, a Delaware banking corporation, not
in its individual capacity but solely as trustee (the "Owner Trustee") under an
Amended and Restated Trust Agreement, dated as of March 1, 2003, between Long
Beach Acceptance Receivables Corp. II, a Delaware corporation (the "Transferor")
and the Owner Trustee (the "Trust Agreement"), hereby certifies that
___________________________________________ is the Holder of this Certificate
representing the entire beneficial interest in the Long Beach Acceptance Auto
Receivables Trust (the "Trust") created by the Trust Agreement. This Certificate
is issued pursuant to and is entitled to the benefits of the Trust Agreement,
and the Certificateholder by acceptance hereof agrees to be bound by the terms
of the Trust Agreement. Reference is hereby made to the Trust Agreement for a
statement of the rights and obligations of the Certificateholder hereof. The
Owner Trustee may treat the person shown on the register maintained by the Owner
Trustee pursuant to the Trust Agreement as the absolute Certificateholder hereof
for all purposes.
Capitalized terms used herein without definition have the
meanings ascribed to them in or by reference to the Trust Agreement.
The Certificateholder hereof, by its acceptance of this
Certificate, warrants and represents to, and agrees with, the Owner Trustee that
it shall not transfer this Certificate except in accordance with the Trust
Agreement.
The Certificateholder, by acceptance of its Certificate,
specifically acknowledges that it has no right to or interest in any monies at
any time held pursuant to the Spread Account Agreement prior to the release of
such monies pursuant to Section 5.6(d) of the Sale and Servicing Agreement, such
monies being held in trust for the benefit of the Class A Noteholders and the
Note Insurer. Notwithstanding the foregoing, in the event that it is ever
determined that provisions of the Sale and Servicing Agreement and the Spread
Account Agreement shall be considered to constitute a security agreement and the
Transferor and the Certificateholder hereby grant to the Collateral Agent for
the benefit of the Class A Noteholders and the Note Insurer a first priority
perfected security interest in such amounts, to be applied as set forth in
Section 3.03 of the Spread Account Agreement. In addition the Certificateholder,
by acceptance of its Certificate, hereby appoints the Transferor as its agent to
pledge a first priority perfected security interest in the Spread Account, and
any amounts held therein from time to time to the Collateral Agent pursuant to
the Spread Account Agreement and agrees to execute and deliver such instruments
of conveyance, assignment, grant and confirmation, as well as financing
statements, in each case as the Note Insurer shall consider reasonably necessary
in order to perfect the Collateral Agent's Security Interest in the Collateral
(as such terms are defined in the Spread Account Agreement).
B-3
This Certificate and the Trust Agreement shall in all respects
be governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to conflict-of-law principles.
B-4
IN WITNESS WHEREOF, the Trust, pursuant to the Trust
Agreement, has caused this Certificate to be issued as of the date hereof.
LONG BEACH ACCEPTANCE AUTO
RECEIVABLES TRUST 2003-A
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------------------
Name:
Title:
Dated: March 13, 2003
This is one of the Certificates referred to in the
within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: Wilmington Trust Company,
Authenticating Agent
By:
-------------------------------------
Name:
Title:
Dated: March 13, 2003
B-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________ Attorney to transfer said Certificate on
the books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
*
------------------------------------------
*
------------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever.
B-6
EXHIBIT C
[FORM OF "QUALIFIED INSTITUTIONAL BUYER"
TRANSFEREE'S CERTIFICATE]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp. II
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Ladies and Gentlemen:
In connection with the proposed purchase by the buyer listed
below (the "Buyer") of the Certificates (as defined below) issued pursuant to
the Amended and Restated Trust Agreement, dated as of March 1, 2003 (the "Trust
Agreement"), between Long Beach Acceptance Receivables Corp. II, as Transferor
(the "Transferor") and Wilmington Trust Company, as trustee (the "Owner
Trustee"), relating to Long Beach Acceptance Auto Receivables Trust 2003-A (the
"Certificates"), the Buyer advises you as follows: (i) the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (the "1933 Act") and is acquiring beneficial ownership
of the Certificates for its own account or for the account of not more than _
persons, each of which is a "qualified institutional buyer"; and (ii) the Buyer
satisfies the requirements of paragraph (a)(2)(ii) of Rule 3a-7 under the
Investment Company Act of 1940, as amended (the "1940 Act"). In addition to the
foregoing, you may rely on the information provided in Annex 1 or 2, as
applicable, attached hereto and incorporated herein.
The Buyer understands that the Certificates have not been
registered under the 1933 Act or the securities laws of any state. The Buyer
acknowledges that it has independently conducted such investigation and
evaluation of the merits and the risks involved in an investment in the
Certificates and has received such information (whether from the Transferor, the
Owner Trustee, the transferor from which it proposes to purchase Certificates,
or from any other source) as the Buyer has deemed necessary and advisable in
order to make its investment decision. The Buyer has had any questions arising
from such investigation and evaluation answered by the Transferor to the
satisfaction of the Buyer. The Buyer is a sophisticated institutional investor,
having such knowledge and experience in financial and business matters
generally, and with respect to asset-backed securities and investments in
"non-prime" automobile loans specifically, that it is capable of independently
evaluating the merits and risks of investment in the
Certificates. In the normal course of its business, the Buyer invests in or
purchases securities similar to the Certificates. The Buyer is aware that it may
be required to bear the economic risk of an investment in the Certificates for
an indefinite period of time, and it is able to bear such risk for an indefinite
period.
Very truly yours,
[BUYER]
By:
-------------------------------------------
Name:
Title:
Taxpayer ID:
----------------------------------
Name in which Certificate is to be Registered:
----------------------------------------------
Address for Notices:
----------------------------------------------
Payment Instructions:
----------------------------------------------
C-2
ANNEX 1 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to the parties
listed in the "Qualified Institutional Buyer" Transferee's Certificate to which
this certification relates with respect to the Rule 144A Securities described
therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $_________________(1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
[ ] Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
[ ] Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
[ ] Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
[ ] Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
-------------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
C-3
[ ] Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
[ ] State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
[ ] ERISA Plan. The Buyer is an employee benefit plan within the meaning
of TitleI of the Employee Retirement Income Security Act of 1974.
[ ] Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisers Act of 1940.
[ ] Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
[ ] Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
[ ] Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively State or Local Plans or ERISA
Plans as defined above, and no participant of the Buyer is an individual
retirement account or an H.R. 10 (Xxxxx) plan.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934.
5. The Buyer acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties related to the
Certificates are relying and will
C-4
continue to rely on the statements made herein because one or more sales to the
Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer is
a Bank or Savings and Loan as provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-------------------------------------------
Print Name of Buyer
By:
----------------------------------------
Name:
Title:
Date:
C-5
ANNEX 2 TO EXHIBIT C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers that are Registered Investment Companies]
The undersigned hereby certifies as follows to the parties
listed in the "Qualified Institutional Buyer" Transferee's Certificate to which
this certification relates with respect to the Rule 144A Securities described
therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
[ ] The Buyer owned $__________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
[ ] The Buyer is part of a Family of Investment Companies
which owned in the aggregate $__________ in securities (other
than the excluded securities referred to below) as of the end
of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
C-6
5. The Buyer is familiar with Rule 144A and understands that
the parties listed in the Qualified Institutional Buyer Transferee's Certificate
to which this certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6. Until the date of purchase of the Rule 144A Securities, the
undersigned will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
-------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
C-7
EXHIBIT D
[FORM OF "ACCREDITED INVESTOR" TRANSFEREE'S CERTIFICATE]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp. II
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Dear Sirs:
In connection with the proposed purchase by the buyer listed
below (the "Buyer") of Certificates (as defined below) issued pursuant to the
Amended and Restated Trust Agreement, dated as of March 1, 2003 (the "Trust
Agreement"), between Long Beach Acceptance Receivables Corp. II, as Transferor
(the "Transferor"), and Wilmington Trust Company, as trustee (the "Owner
Trustee"), relating to Long Beach Acceptance Auto Receivables Trust 2003-A (the
"Certificates"), the Buyer confirms that:
1. The Buyer understands that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
may not be sold except as permitted in the following sentence. The Buyer agrees,
on its own behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that such Certificates may be resold, pledged or transferred
only: (i) so long as such Certificates are eligible for resale pursuant to Rule
144A under the 1933 Act ("Rule 144A"), to a person who the Buyer reasonably
believes is a "qualified institutional buyer" as defined in Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB, to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, (ii) pursuant to an exemption from registration under the 1933 Act
provided by Rule 144 (if applicable) under the 1933 Act or (iii) to an
institution that is an "Accredited Investor" as defined in Rule 501(a)(1), (2),
(3) or (7) under the 1933 Act (an "Accredited Investor") that is acquiring the
Certificates for investment purposes and not for distribution, in each case in
accordance with any applicable securities laws of any state of the United
States, and the Buyer will notify any purchaser of the Certificates from it of
the above resale restrictions. The Buyer further understands that in connection
with any transfer of the Certificates to an Accredited Investor by it that the
Transferor or Owner Trustee may request, and if so requested the Buyer will
furnish, such certificates and other information as they may reasonably require
to confirm any such transfer with the foregoing restrictions.
2. The Buyer is an institutional investor which is an
Accredited Investor or, if the Certificates are to be purchased for one or more
institutional accounts ("investor accounts") for which it is acting as fiduciary
or agent (except if it is a bank as defined in Section 3(a)(2) of the 1933 Act,
or a savings and loan association or other institution as described in Section
3(a)(5)(A) of the 1933 Act, whether acting in its individual or in a fiduciary
capacity), each such investor account is an institutional investor and an
Accredited Investor on a like basis. In the normal course of its business, the
Buyer invests in or purchases securities similar to the Certificates.
3. The Buyer satisfies the requirements of paragraph (a)(2)(i)
of Rule 3a-7 of the Investment Company Act of 1940, as amended.
4. The Buyer acknowledges that it has independently conducted
such investigation and evaluation of the merits and the risks involved in an
investment in the Certificates and has received such information (whether from
the Transferor, the Servicer, the transferor from which it proposes to purchase
Certificates, or from any other source) as the Buyer has deemed necessary and
advisable in order to make its investment decision. The Buyer has had any
questions arising from such investigation and evaluation answered by the
Transferor to the satisfaction of the Buyer. The Buyer is a sophisticated
institutional investor, having such knowledge and experience in financial and
business matters generally, and with respect to asset-backed securities and
investments in "non-prime" automobile loans specifically, that it is capable of
independently evaluating the merits and risks of investment in the Certificates.
In the normal course of its business, the Buyer invests in or purchases
securities similar to the Certificates. The Buyer is aware that it (or any
investor account) may be required to bear the economic risk of an investment in
the Certificates for an indefinite period of time, and it (or such account) is
able to bear such risk for an indefinite period.
Very truly yours,
[BUYER]
By:
----------------------------------------
Name:
Title:
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EXHIBIT E
[FORM OF TRANSFEROR'S CERTIFICATE]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Ladies and Gentlemen:
In connection with the disposition by the transferor listed
below (the "Transferor") of Certificates (as defined below) issued pursuant to
the Amended and Restated Trust Agreement, dated as of March 1, 2003 (the "Trust
Agreement") between Long Beach Acceptance Receivables Corp. II, as Transferor
(the "Transferor"), and Wilmington Trust Company, as trustee (the "Owner
Trustee"), relating to Long Beach Acceptance Auto Receivables Trust 2003-A (the
"Certificates"), the Transferor certifies that:
(a) the Transferor understands that the Certificates have not
been registered under the Securities Act of 1933, as amended (the "1933 Act"),
and are being disposed of by the Transferor in a transaction that is exempt from
the registration requirements of the 1933 Act; and
(b) the Transferor has not offered or sold any Certificates
to, or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action which would result in, a violation of
Section 5 of the 1933 Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:
-------------------------------------
Name:
Title:
EXHIBIT F
[FORM OF ERISA CERTIFICATE]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp. II
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Ladies and Gentlemen:
[NAME OF OFFICER] hereby certifies that:
1. That he [she] is [Title of Officer] ____________________ of [Name of
Transferee] ___________________________________________ (the "Transferee"), a
[savings institution] [corporation] duly organized and existing under the laws
of [the State of ________] [the United States], on behalf of which he [she]
makes this affidavit.
2. The Transferee (1) is not, and on _______________ [insert date of
transfer of Certificate to Transferee] will not be, and on such date will not be
acting on behalf of or investing the assets of (a) an "employee benefit plan"
(as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) that is subject to the provisions of Title I of
ERISA or (b) a "plan" (as defined in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code")) that is subject to Section 4975 of the
Code (each, a "Benefit Plan").
3. In connection with the proposed purchase by the Transferee of the
Certificate issued pursuant to the Trust Agreement (the "Agreement") between
Long Beach Acceptance Receivables Corp. II, as Transferor (the "Transferor"),
and Wilmington Trust Company, as trustee (the "Owner Trustee"), dated as of
March 1, 2003, the Transferee hereby acknowledges that under the terms of the
Agreement no transfer of any Certificate (as defined in the Agreement) shall be
permitted to be made to any person unless the Owner Trustee has received a
certificate from such transferee to the effect that such transferee is not a
Benefit Plan and is not acting on behalf of or investing the assets of a Benefit
Plan.
[4. The Certificates shall be registered in the name of
_______________________ as nominee for the Transferee.]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] _______________, this__ day of ____________.
[Name of Transferee]
By:
-------------------------------------
Name:
Title:
The undersigned hereby acknowledges that it is holding and will hold the Trust
Certificates at the exclusive direction of and as nominee of the Investor named
above.
[Name of Nominee]
By:
-------------------------------------
Name:
Title:
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EXHIBIT G
[FORM OF FLOW THROUGH ENTITY CERTIFICATE]
[Date]
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp. II
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-A
Ladies and Gentlemen:
[NAME OF OFFICER] hereby certifies that:
1. That he [she] is [Title of Officer] ____________ of [Name of
Transferee] _______________________________ (the "Transferee"), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of ____________] [the United States], on behalf of which he [she] makes
this affidavit.
2. The Transferee (a) is acquiring the Certificate (as defined below)
for its own behalf and is not acting as agent or custodian for any other person
or entity in connection with such acquisition, (b) if the Transferee is a
partnership, grantor trust or S corporation for federal income tax purposes (a
"Flow Through Entity"), any Certificate owned by such Flow Through Entity will
represent less than 50% of the value of all the assets owned by such Flow
Through Entity and no special allocation of income, gain, loss, deduction or
credit from such Certificate will be made among the beneficial owners of such
Flow Through Entity, and (c) the Transferee is a United States person within the
meaning of the Internal Revenue Code of 1986, as amended.
3. The Transferee hereby acknowledges that under the terms of the
Amended and Restated Trust Agreement (the "Agreement") between Long Beach
Acceptance Receivables Corp. II, as Transferor (the "Transferor"), and
Wilmington Trust Company, as trustee (the "Owner Trustee"), dated as of March 1,
2003 no transfer of any Certificate (as defined in the Agreement) shall be
permitted to be made to any person unless the Owner Trustee has received a
certificate from such transferee to the effect that such transferee (a) is
acquiring the Certificate for its own behalf and is not acting as agent or
custodian for any other person or entity in connection with such acquisition,
(b) if the
G-2
transferee is a partnership, grantor trust or S corporation for federal income
tax purposes (a "Flow Through Entity"), any Certificate owned by such Flow
Through Entity will represent less than 50% of the value of all the assets owned
by such Flow Through Entity and no special allocation of income, gain, loss,
deduction or credit from such Certificate will be made among the beneficial
owners of such Flow Through Entity, and (c) the transferee is a United States
person within the meaning of the Internal Revenue Code of 1986 as amended.
[4. The Certificates shall be registered in the name of as nominee for
the Transferee.]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer) _____________________________, this ___ day of
-----------.
[NAME OF TRANSFEREE]
By:
----------------------------------------
Name:
Title:
The undersigned hereby acknowledges that it is holding and will hold the Trust
Certificates at the exclusive direction of and as nominee of the Investor named
above.
[NAME OF NOMINEE]
By:
----------------------------------------
Name:
Title:
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