Exhibit 4.3
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FORM OF AMENDED AND RESTATED TRUST AGREEMENT
between
USAA ACCEPTANCE, LLC
as Depositor
and
--------------------
as Owner Trustee
Dated as of ______________, 200_
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name.....................................................................................1
SECTION 2.2. Offices..................................................................................1
SECTION 2.3. Purposes and Powers......................................................................1
SECTION 2.4. Appointment of Owner Trustee.............................................................2
SECTION 2.5. Capital Contribution of Owner Trust Estate...............................................2
SECTION 2.6. Declaration of Trust.....................................................................2
SECTION 2.7. Liability of the Depositor and the Certificateholders....................................3
SECTION 2.8. Title to Trust Property..................................................................3
SECTION 2.9. Situs of Trust...........................................................................3
SECTION 2.10. Representations and Warranties of the Depositor..........................................3
SECTION 2.11. Federal Income Tax Matters...............................................................4
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership.............................................................5
SECTION 3.2. The Certificates.........................................................................5
SECTION 3.3. Authentication of Certificates...........................................................6
SECTION 3.4. Registration of Certificates; Transfer and Exchange of Certificates......................6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates........................................8
SECTION 3.6. Persons Deemed Owners of Certificates....................................................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses................................8
SECTION 3.8. Maintenance of Office or Agency..........................................................9
SECTION 3.9. Appointment of Certificate Paying Agent..................................................9
SECTION 3.10. Certain Rights of Depositor.............................................................10
SECTION 3.11. Book-Entry Certificates.................................................................10
SECTION 3.12. Notices to Clearing Agency..............................................................11
SECTION 3.13. Definitive Certificates.................................................................11
SECTION 3.14. Authenticating Agents...................................................................12
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain Matters......................12
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters............................13
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.................................13
SECTION 4.4. Restrictions on Certificateholders' Power...............................................13
SECTION 4.5. Majority Control........................................................................13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.......................................14
SECTION 5.2. Application of Trust Funds..............................................................14
SECTION 5.3. Method of Payment.......................................................................15
SECTION 5.4. No Segregation of Monies; No Interest...................................................15
SECTION 5.5. Accounting and Reports to Noteholders, Certificateholders, Internal Revenue
Service and Others......................................................................15
SECTION 5.6. Signature on Returns; Tax Matters Partner...............................................16
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.......................................................................16
SECTION 6.2. General Duties..........................................................................16
SECTION 6.3. Action upon Instruction.................................................................17
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions......................18
SECTION 6.5. No Action Except Under Specified Documents or Instructions..............................18
SECTION 6.6. Restrictions............................................................................18
SECTION 6.7. Acceptance of Trusts and Duties.........................................................18
SECTION 6.8. Furnishing of Documents.................................................................20
SECTION 6.9. Representations and Warranties..........................................................20
SECTION 6.10. Reliance; Advice of Counsel.............................................................20
SECTION 6.11. Not Acting in Individual Capacity.......................................................21
SECTION 6.12. Owner Trustee Not Liable for Certificates or Receivables................................21
SECTION 6.13. Owner Trustee May Own Certificates and Notes............................................21
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses.......................................................21
SECTION 7.2. Payments to Owner Trustee...............................................................22
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ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust................................................................22
SECTION 8.2. Prepayment of Certificates..............................................................23
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee..............................................24
SECTION 9.2. Resignation or Removal of Owner Trustee.................................................24
SECTION 9.3. Successor Owner Trustee.................................................................25
SECTION 9.4. Merger or Consolidation of Owner Trustee................................................26
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee...........................................26
SECTION 9.6. Compliance with Statutory Trust Statute.................................................27
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments..............................................................28
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholders..............................29
SECTION 10.3. Limitation on Rights of Others..........................................................29
SECTION 10.4. Notices.................................................................................29
SECTION 10.5. Severability............................................................................30
SECTION 10.6. Separate Counterparts...................................................................30
SECTION 10.7. Successors and Assigns..................................................................30
SECTION 10.8. No Petition.............................................................................30
SECTION 10.9. No Recourse.............................................................................30
SECTION 10.10. Headings................................................................................30
SECTION 10.11. GOVERNING LAW...........................................................................30
EXHIBIT A FORM OF [CLASS B] CERTIFICATE..........................................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST...........................................................B-1
EXHIBIT C FORM OF TRANSFEROR CERTIFICATE.........................................................C-1
EXHIBIT D FORM OF INVESTMENT LETTER..............................................................D-1
EXHIBIT E FORM OF RULE 144A LETTER...............................................................E-1
APPENDIX A Definitions and Usage.........................................................Appendix A-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________, 200_ (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), between USAA ACCEPTANCE, LLC, a Delaware limited liability
company, as Depositor, having its principal office at 0000 Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000; and __________, a __________ (the
"Bank"), not in its individual capacity but solely as trustee under this
Agreement (in such capacity, the "Owner Trustee"), having its principal
corporate trust office at __________ for the purpose of establishing the USAA
Auto Owner Trust 200_-[ ].
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of _________, 200_, between the Depositor and the
Owner Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined
in Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "USAA
Auto Owner Trust 200_-[ ]", 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. Offices. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is, and
the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, hold and manage the Trust Property;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement upon the written order of the
Depositor;
(iii) in exchange for the Notes and the Certificates, to acquire the
Receivables and funds in the amount of the Reserve Initial Deposit, to
pay the organizational, start-up and transactional expenses of the Trust,
and to pay the balance to the Depositor pursuant to the Sale and
Servicing Agreement;
(iv) to pay interest on and principal of the Notes [and interest and
distributions on the Certificates];
(v) to Grant the Owner Trust Estate (other than the Certificate
Distribution Account and the proceeds thereof) to the Indenture Trustee
pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) 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
(viii) 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 interest and principal
payments to the Noteholders [and the making of interest payments] and
distributions to the Certificateholders.
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 other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Upon the execution of this
Agreement, the Owner Trustee shall continue as trustee of the Trust, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Capital Contribution of Owner Trust Estate. As of _______,
200__, the Depositor sold, assigned and transferred to the Owner Trustee the
sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the
Depositor, as of such date, the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay the organizational expenses of
the Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. On the Closing Date, the Depositor shall convey to the Trust the
Trust Property and the Reserve Initial Deposit and the Owner Trustee shall
cause the delivery to or upon the order of the Depositor the Notes and the
Certificates.
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 Certificateholders,
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 Statute and that this Agreement constitute the
governing instrument of such statutory trust. [It is the intention of the
parties hereto that, solely for income and franchise tax
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purposes, until the Certificates are held by a Person other than the Depositor
(or, to the extent of a Class of Notes is recharacterized to be treated as
equity for U.S. federal tax purposes), the Trust shall be disregarded as an
entity separate from the Depositor and the Notes will be characterized as
debt. At such time that the Certificates are held by more than one Person, it
is the intention of the parties hereto that, solely] for income and franchise
tax purposes, the Trust shall be treated as a partnership, with the assets of
the partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders and [the Depositor]
[any Notes recharacterized as trust equity for U.S. federal tax purposes], and
the Notes being debt of the partnership. The Depositor and the
Certificateholders by acceptance of a Certificate agree to such treatment and
agree to take no action inconsistent with such treatment.] The parties agree
that, unless the Certificates are held by more than one person or it is
otherwise required by appropriate tax authorities, the Trust will not file or
cause to be filed annual or other returns, reports and other forms that are
inconsistent with the characterization of the Trust as an entity that is not
separate from its owner.] Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and duties set forth herein and in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust. The
Owner Trustee has filed the Certificate of Trust with the Secretary of State.
SECTION 2.7. Liability of the Depositor and the Certificateholders.
Neither the Depositor (except as otherwise provided herein) nor any
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to the entirety of 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.
SECTION 2.9. Situs of Trust. The Trust shall be administered by the Owner
Trustee in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or
the State of New York. The Trust shall not have any employees in any state
other than the State of Delaware; provided, however, that nothing herein shall
restrict or prohibit the Bank, the Depositor or the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by the Trust only in Delaware or New York, and payments will be made by the
Trust only from Delaware or New York. The principal office of the Trust shall
be in care of the Owner Trustee in the State of Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly formed and validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
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.
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(b) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms, and the Depositor has full power and
authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary limited liability company
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary limited liability company
action.
(c) The Depositor has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor, in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of creditors'
rights in general and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not (i) conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the limited
liability company agreement of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound,
(ii) 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) or (iii) violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement, the Indenture, any of the other Basic Documents, the Notes
or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or Applicable Tax State franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. [Federal Income Tax Matters. If there is more than one
beneficial owner of the Certificates, net income or net loss of the Trust for
any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall
be allocated among the Certificateholders as of the first day following the
Record Date, in proportion to their Percentage Interest evidencing the
Certificates on the Record Date.
If there is more than one beneficial owner of the Certificates (or if a
Class of Notes is recharacterized as equity for U.S. federal tax purposes),
the Trust is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations
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to fairly reflect the economic income, gain or loss to the Certificateholders,
or as otherwise required by the Code.]
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until
the issuance of the Certificates, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 3.2. The Certificates. (a) [The Certificates shall be issued in
minimum denominations of a one percent Percentage Interest in the Trust.] [The
Certificates shall be issued as Book-Entry Certificates, substantially in the
form set forth in Exhibit A, in minimum denominations of $1,000 and in
integral multiples of $1,000 in excess thereof.]
(b) The Certificates shall be executed on behalf of the Trust by the
Owner Trustee by manual or facsimile signature of an authorized officer of the
Owner Trustee. Certificates 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 Owner Trustee, 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 Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
(c) 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 such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.4.
(d) [Plans and persons investing on behalf of or with "plan assets" of
Plans may not acquire the Certificates. An insurance company using the assets
of its general account that include "plan assets" may purchase the
Certificates if:
(i) such insurance company is able to represent that, as of the date
it acquires an interest in the Certificates, less than 25% of the assets
of such general account constitute "plan assets" for purposes of Title I
of ERISA and Section 4975 of the Code;
(ii) such insurance company agrees that if at any time during any
calendar quarter while it is holding an interest in the Certificates, 25%
or more of the assets of such general account constitute "plan assets"
for purposes of Title I of ERISA and Section 4975 of the Code, and if, at
that time, no exemption or exception applies to the continued holding of
the Certificates under ERISA, such insurance company will dispose of the
Certificates then held in its general account; and
(iii) the purchase satisfies the conditions for relief under PTCE
95-60.]
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SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates, [in an
aggregate Percentage Interest equal to 100%] [in an aggregate principal
balance equal to the Initial Certificate Balance], to be executed on behalf of
the Trust, authenticated and delivered to or upon the written order of the
Depositor, without further action by the Depositor, in authorized
denominations. No Certificate shall entitle its Certificateholder 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 A hereto, executed by the Owner Trustee by
manual signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trust shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Owner Trustee shall be
the initial Certificate Registrar. No transfer of a Certificate shall be
recognized except upon registration of such transfer in the Certificate
Register.
(b) [With respect to each transfer of a Certificate, the prospective
transferee Certificate Owner shall be deemed to represent the following:
(i) Either:
(A) (x) for the entire period during which such purchaser or
transferee holds its interest in the Certificates, no portion of
such purchaser's or transferee's assets constitutes assets of any
"employee benefit plan" within the meaning of Section 3(3) of ERISA,
whether or not subject to Title I of ERISA, including any U.S.
governmental or non-U.S. pension plan, or any "plan" subject to
Section 4975 of the Code (each, a "Covered Plan") or
(B) (1) the assets used by such purchaser or transferee to acquire
the Certificates (or any interest therein) constitute assets of an
insurance company general account, (2) for the entire period during
which such purchaser or transferee holds its interest in the
Certificates, less than 25% of the assets of such insurance company
general account will constitute "plan assets" of any Covered Plan
and (3) the acquisition and holding of the Certificates by such
purchaser or transferee will satisfy the requirements of XXXX 00-00
and will not constitute a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or a violation of
any applicable Similar Law.
(ii) It is, and each account (if any) for which it is purchasing
Certificates is, a Person who is (A) a citizen or resident of the United
States, (B) a corporation or partnership organized in or under the laws
of the United States, any state thereof or the District of Columbia, (C)
an estate the income of which is includible gross income for United
States tax purposes, regardless of its source, (D) a trust with respect
to which a
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U.S. court is able to exercise primary supervision over the
administration of such trust and one or more Persons meeting the
conditions of clause (A), (B), (C) or (E) of this paragraph (ii) has the
authority to control all substantial decisions of the trust or (E) a
Person not described in clauses (A) through (D) above whose ownership of
Certificates is effectively connected with such Person's conduct of a
trade or business within the United States (within the meaning of the
Code) and who provides the Owner Trustee and the Depositor with an IRS
Form W-8 ECI (and such other certifications, representations, or opinions
of counsel as may be requested by the Owner Trustee or the Depositor).
(iii) It understands that any purported transfer of any Certificate
(or any interest therein) to any Person who does not meet the conditions
of paragraphs (i) and (ii) above shall be, to the fullest extent
permitted by law, void ab initio, and the purported transferee in such a
transfer shall not be recognized by the Trust or any other Person as a
Certificateholder for any purpose.]
[The Certificates have not been and will not be registered under
the Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
the Securities Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and state securities laws, in order to ensure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Owner Trustee in writing the facts surrounding the transfer in substantially
the forms set forth in Exhibit C (the "Transferor Certificate") and either
Exhibit D (the "Investment Letter") or Exhibit E (the "Rule 144A Letter"). The
Company shall provide to any Certificateholder of a Certificate and any
prospective transferee designated by any such Certificateholder, information
regarding the Certificates and, based solely on information received from the
Servicer, the Receivables and, to the extent reasonably obtainable by the
Company, such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for transfer of any such
Certificate without registration thereof under the Securities Act pursuant to
the registration exemption provided by Rule 144A. Each Holder of a Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Trust, the Owner Trustee, and the Company against any liability that may
result if the transfer is not so exempt or is not made in accordance with
federal and state securities laws. The Owner Trustee shall cause each
Certificate to contain a legend in the form set forth on the form of
Certificate attached hereto as Exhibit A. The Certificates may not be acquired
by or for the account of a Benefit Plan. By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.]
(c) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8 and upon compliance with
any provisions of this Agreement relating to such transfer, the Owner Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations and aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. At the option of a
Certificateholder, Certificates may be exchanged for
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other Certificates of authorized denominations and aggregate amount upon
surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.8.
Every 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 related Certificateholder or such Certificateholder's attorney duly
authorized in writing, [with such signature guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust company.] Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, 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
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Payment Date for any payment with respect to the Certificates.
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 and the Owner Trustee 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 has been acquired by a protected
purchaser, the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee shall authenticate and deliver, in exchange for, or in lieu of,
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate,
of like tenor and denomination. In connection with the issuance of any new
Certificate under this Section 3.5, 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 3.5 shall constitute
conclusive evidence of ownership 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 Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving interest or
distributions pursuant to this Agreement and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Certificate Paying Agent and the Depositor, or to the Indenture Trustee,
within fifteen (15) days after receipt by the Owner
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Trustee of a written request therefor from the Servicer, the Certificate
Paying Agent or the Depositor, or the Indenture Trustee, as the case may be, a
list, in such form as the requesting party may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record
Date. The Certificate Registrar shall also furnish to the Owner Trustee and
the Paying Agent a copy of such list at any time there is a change therein. If
three or more Certificateholders or one or more holders of Certificates
evidencing not less than 25% of the [Percentage Interests evidenced by the
Certificates] [Certificate Balance] apply in writing to the Owner Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the State of Delaware, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its principal corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Certificate Paying Agent. The Certificate
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Certificate Paying Agent shall
initially be the Owner Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent upon thirty (30) days' written
notice to the Owner Trustee. In the event that the Owner Trustee shall no
longer be the Certificate Paying Agent, the Owner Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Certificate Paying
Agent to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Certificate Paying Agent shall
return all unclaimed funds to the Owner Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections 6.7,
6.9, 6.10, 7.1 and 7.2 shall apply to the Certificate Paying Agent. The Owner
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Trustee may appoint a co-paying agent. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent appointed by the
Owner Trustee unless the context requires otherwise.
SECTION 3.10. [Reserved]. [Certain Rights of [Certificateholder]
[Depositor]. The [Certificateholder] [Depositor] shall be entitled to any
amounts not needed on any Payment Date to make payments on the Notes [or the
Certificates] or to make deposits to the Reserve Account pursuant to Section
4.6 of the Sale and Servicing Agreement, and to receive amounts remaining in
the Reserve Account following the payment in full of the aggregate principal
amount of the Notes [and the Certificate Balance] and of all other amounts
owing or to be distributed hereunder or under the Indenture or the Sale and
Servicing Agreement to Noteholders [and Certificateholders] and the
termination of the Trust. The [Certificateholder] [Depositor] may not transfer
any such rights in the Reserve Account unless (i) the Owner Trustee and the
Indenture Trustee shall have received an Opinion of Counsel that such transfer
shall not cause the Trust to be classified as an association (or publicly
traded partnership) taxable as a corporation, (ii) the transferee agrees in
writing to take positions for federal income tax purposes consistent with the
federal income tax positions previously taken by the [Certificateholder]
[Depositor] and (iii) the Rating Agency Condition is satisfied.]
SECTION 3.11. [Reserved.] [Book-Entry Certificates. The Certificates,
upon original issuance, shall be issued in the form of typewritten Certificate
or Certificates representing the Book-Entry Certificates, to be delivered to
The Depository Trust Company, the initial Clearing Agency, by, or on behalf
of, the Trust. The Book-Entry Certificate or Certificates shall be registered
initially on the Certificate Register in the name of Cede & Co., the nominee
of the initial Clearing Agency, and no Certificate Owner thereof shall receive
a Definitive Certificate (as defined below) representing such Certificate
Owner's beneficial interest in such Certificate, except as provided in Section
3.13. Unless and until definitive, fully registered Certificates (the
"Definitive Certificates") have been issued to Certificate Owners pursuant to
Section 3.13:
(i) the provisions of this Section 3.11 shall be in full force and
effect;
(ii) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of interest and distributions on the
Book-Entry Certificates and the giving of instructions or directions
hereunder) as the sole Certificateholder, and shall have no obligation to
the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants pursuant to the Note
Depository Agreement;
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(v) the initial Clearing Agency shall make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments
of principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants; and
(vi) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of holders of Certificates
evidencing a specified percentage of the Certificate Balance, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Certificate Balance and has delivered such instructions to the Owner
Trustee.]
SECTION 3.12. Notices to Clearing Agency. [Whenever a notice or other
communication to the holders of Certificates is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the
Certificate Owners pursuant to Section 3.13, the Owner Trustee shall give all
such notices and communications specified herein to be given to holders of
Certificates to the Clearing Agency, and shall have no obligation to such
Certificate Owners.]
SECTION 3.13. Definitive Certificates. [The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates in the form attached hereto as Exhibit A to be delivered to the
Certificateholders as directed by the Depositor, by, or on behalf of, the
Trust. Such Certificate or Certificates shall be registered on the Certificate
Register in the name of the holder thereof. The Certificates shall be printed,
lithographed, typewritten or engraved or may be produced in any other manner
as is reasonably acceptable to the Owner Trustee, as evidenced by its
execution thereof.] [With respect to any Book-Entry Certificates, if (i) the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to such Book-Entry Certificates and the Administrator is unable to
locate a qualified successor, (ii) the Administrator, at its option, advises
the Owner Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of an Event of
Default or an Event of Servicing Termination, Certificate Owners with respect
to Book-Entry Certificates evidencing beneficial interests aggregating not
less than a majority of the Certificate Balance advise the Owner Trustee and
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the
Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of such event and of the
availability of Definitive Certificates to the Certificate Owners. Upon
surrender to the Owner Trustee of the typewritten Certificate or Certificates
representing the Book-Entry Certificates by the Clearing Agency, accompanied
by registration instructions, the Owner Trustee shall execute, authenticate
and deliver the Definitive Certificates in accordance with the written
instructions of the Clearing Agency. None of the Trust, the Certificate
Registrar or the Owner Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates to
Certificate Owners, the Owner Trustee shall recognize the holders of such
Definitive Certificates as Certificateholders.]
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SECTION 3.14. Authenticating Agents. (a) The Owner Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Certificates in
connection with issuance, transfers and exchanges under Sections 3.3, 3.4 and
3.5, as fully to all intents and purposes as though each such Authenticating
Agent had been expressly authorized by those Sections to authenticate such
Certificates. For all purposes of this Agreement, the authentication of
Certificates by an Authenticating Agent pursuant to this Section 3.14 shall be
deemed to be the authentication of Certificates "by the Owner Trustee."
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Owner Trustee and the Depositor. The Owner
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the
Servicer and the Depositor. Upon receiving such notice of resignation or upon
such a termination, the Owner Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Depositor
and the Servicer.
(d) The Servicer, pursuant to the Sale and Servicing Agreement, agrees to
pay to each Authenticating Agent from time to time reasonable compensation for
its services. The provisions of Section 6.4 shall be applicable to any
Authenticating Agent.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters. It is the intention of the Depositor and the Certificateholders that
the powers and duties of the Owner Trustee are ministerial only and that any
non-ministerial action (including the taking of any legal action) may only be
taken by the Owner Trustee in accordance with this Section 4.1. With respect
to the following matters, the Owner Trustee shall not take action unless, (i)
at least thirty (30) days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders of record as of the preceding
Record Date and the Rating Agencies in writing of the proposed action and (ii)
Certificateholders [holding not less than a majority of the [Percentage
Interests evidenced by the Certificates] [Certificate Balance] shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits brought by the Servicer in connection with the collection
of the Receivables) and the settlement of any material action, claim or
lawsuit brought by or against the Trust (except with
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respect to the aforementioned claims or lawsuits for collection by the
Servicer of the Receivables);
(b) 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
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of the
Certificateholders; or
(e) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or to add any provision that
would not materially adversely affect the interests of the Certificateholders.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of an Event of
Servicing Termination subsequent to the payment in full of the Notes and in
accordance with the written direction of Certificateholders holding not less
than a majority of the [Percentage Interests evidenced by the Certificates]
[Certificate Balance], (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Article VII thereof, (b) appoint a successor Servicer
pursuant to Article VII of the Sale and Servicing Agreement, (c) remove the
Administrator under the Administration Agreement pursuant to Section 9 thereof
or (d) appoint a successor Administrator pursuant to Section 9 of the
Administration Agreement.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust unless the Notes have been paid in full and
each Certificateholder (other than the Depositor) approves of such
commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to 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 other Basic Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Certificateholders holding not less than a majority of the
[Percentage Interests evidenced by the Certificates] [Certificate Balance].
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by holders of Certificates evidencing not less than a majority of the
[Percentage Interests evidenced by the Certificates] [Certificate Balance] at
the time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account. Pursuant
to Section 4.1(c) of the Sale and Servicing Agreement, there has been
established and there shall be maintained an Eligible Deposit Account, in the
name of the Trust, initially at the corporate trust department of the Bank,
which shall be designated as the "Certificate Distribution Account." Except as
expressly provided in Section 3.9, the Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee. All monies
deposited from time to time in the Certificate Distribution Account pursuant
to the Sale and Servicing Agreement shall be applied as provided in the Basic
Documents. In the event that the Certificate Distribution Account is no longer
to be maintained at the corporate trust department of the Bank, the Servicer
shall, with the Owner Trustee's assistance as necessary, cause an Eligible
Account to be established as the Certificate Distribution Account within ten
(10) Business Days (or such longer period not to exceed thirty (30) days as to
which each Rating Agency may consent). [The Certificate Distribution Account
shall be established and maintained pursuant to an account agreement which
specifies New York law as the governing law.]
SECTION 5.2. Application of Trust Funds. (a) On each Payment Date, the
Owner Trustee shall, based on the information contained in the Servicer's
Certificate delivered on the relevant Determination Date pursuant to Section
3.9 of the Sale and Servicing Agreement withdraw the amounts deposited into
the Certificate Distribution Account pursuant to Sections 4.6(c) (if
applicable) and 4.6(d) of the Sale and Servicing Agreement or, if applicable,
Section 5.4(b) of the Indenture on or prior to such Payment Date and make or
cause to be made distributions and payments to the Certificateholder[s]
[Distributions shall be made pro rata on the basis of the Percentage Interests
evidenced by the Certificates.] [in the following order of priority:
(i) first, to the Certificateholders, an amount equal to the Accrued
Class B Certificate Interest, provided that if there are not sufficient
funds available to pay the entire amount of the Accrued Class B
Certificate Interest, the amounts available shall be applied to the
payment of such interest on the Certificates on a pro rata basis; and
(ii) second, to the Certificateholders in reduction of the
Certificate Balance, until the Certificate Balance has been reduced to
zero; provided that if there are not sufficient funds available to reduce
the Certificate Balance to zero, the amounts available shall be applied
among Certificateholders to the reduction of the Certificate Balance on a
pro rata basis].
(b) On each Payment Date, the Owner Trustee shall, or shall cause the
Certificate Paying Agent to, send to each Certificateholder as of the related
Record Date the statement provided to the Owner Trustee by the Servicer
pursuant to Section 4.9 of the Sale and Servicing Agreement with respect to
such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise
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distributable to such Certificateholder in accordance with this Section 5.2.
The Owner Trustee and each Certificate Paying Agent is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any such withholding
tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee or any Certificate Paying Agent from contesting any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated
as cash distributed to such Certificateholder at the time it is withheld by
the Trust and remitted to the appropriate taxing authority. If there is a
possibility that withholding tax is payable with respect to a distribution
(such as a distribution to a non-U.S. Certificateholder), the Owner Trustee or
any Certificate Paying Agent may, in its sole discretion, withhold such
amounts in accordance with this paragraph (c). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 8.1(c), distributions
required to be made to Certificateholders on any Payment Date shall be made to
each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (i) such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five (5) Business Days
prior to such Payment Date and such Certificateholder's Certificates in the
aggregate evidence a denomination of not less than [thirty percent (30%)
Percentage Interest] [$1,000,000], or (ii) such Certificateholder is the
Depositor or, if not, by check mailed to such Certificateholder at the address
of such Certificateholder appearing in the Certificate Register.
[Notwithstanding the foregoing, the final distribution in respect of any
Certificate (whether on the applicable Final Scheduled Payment Date or
otherwise) will be payable only upon presentation and surrender of such
Certificate at the office or agency maintained for that purpose by the Owner
Trustee pursuant to Section 3.8.]
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, the Indenture
or the Sale and Servicing Agreement, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.5. Accounting and Reports to Noteholders, Certificateholders,
Internal Revenue Service and Others. The Trust shall, based on information
provided by or on behalf of the Depositor, (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis and the accrual
method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required (including Schedule K-1 if
the Trust is treated as a partnership for federal income tax purposes) to
enable each Certificateholder to prepare its federal and State income tax
returns, (c) prepare (or cause to be prepared), file (or cause to be filed)
such tax returns relating to the Trust (including a partnership information
return, IRS Form 1065 if the Trust is treated as a partnership for federal
income tax purposes) and make such elections, as
15
may from time to time be required or appropriate under any applicable State or
federal statute or rule or regulation thereunder so as to prevent the Trust
from being taxed as a corporation, (d) cause such tax returns to be signed in
the manner required by law and (e) collect (or cause to be collected) any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. If the Trust is
treated as a partnership for federal tax purposes the Trust shall elect under
Section 1278 of the Code to include in income currently any market discount
that accrues with respect to the Receivables. The Trust shall not make the
election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The Servicer
shall prepare (or cause to be prepared) and the Depositor shall sign, on
behalf of the Trust, the tax returns of the Trust, if any, unless applicable
law requires a Certificateholder to sign such documents.
(b) In the event that the Trust is designated as a partnership for
federal income tax purposes, the Depositor shall be designated the "tax
matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust the Basic Documents to
which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is to be a party and any amendment or other agreement, in each case, in
such form as the Depositor shall approve, as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of this
Agreement, and to direct the Indenture Trustee to authenticate and deliver (i)
Class [ ] Notes in the aggregate principal amount of $__________, (ii) Class [
] Notes in the aggregate principal amount of $_________, (iii) Class [ ] Notes
in the aggregate principal amount of $__________ [,] [and] (iv) Class [ ]
Notes in the aggregate principal amount of $__________ [and (v) Class [ ]
Notes in the aggregate principal amount of $__________]. In addition to the
foregoing, the Owner Trustee is authorized 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 on behalf of the Trust as is permitted
by the Basic Documents and which the Servicer or the Administrator directs
with respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. Subject to Section 4.1 hereof, it shall be
the duty of the Owner Trustee to discharge (or cause to be discharged) all of
its responsibilities pursuant to the terms of this Agreement and the other
Basic Documents to which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to the Lien of the Indenture
and in accordance with the provisions of this Agreement and the other Basic
Documents. Notwithstanding anything else to the contrary in this Agreement,
the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement to
16
perform any act or to discharge such duty of the Owner Trustee or the Trust
hereunder or under any other Basic Document, and the Owner Trustee shall not
be held liable for the default or failure of the Administrator to carry out
its obligations under the Administration Agreement. Except as expressly
provided in the Basic Documents, the Owner Trustee shall have no obligation to
administer, service or collect the Receivables or to maintain, monitor or
otherwise supervise the administration, servicing or collection of the
Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the terms of the Basic Documents, the Certificateholders may,
by written instruction, direct the Owner Trustee in the management of the
Trust.
(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 other 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
other Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the
Certificateholders 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 Certificateholders 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 (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 other Basic Documents, as it shall
deem to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other 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 Certificateholders
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 ten (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
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
17
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the 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 or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
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 other
Basic Document. 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 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 breech
under any Basic Document. The Owner Trustee nevertheless agrees that it will,
at its own cost and expense, promptly take all action as may be necessary to
discharge any Lien (other than the Lien of the Indenture) on any part of the
Owner Trust Estate that results from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the 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 other
Basic Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders
shall direct the Trustee to take any action that would violate the provisions
of this Section 6.5.
SECTION 6.6. 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 (i)
affect the treatment of the Notes as indebtedness for federal income or
Applicable Tax State income or franchise tax purposes, (ii) be deemed to cause
a taxable exchange of the Notes for federal income or Applicable Tax State
income or franchise tax purposes or (iii) cause the Trust or any portion
thereof to be taxable as an association (or publicly traded partnership)
taxable as a corporation for federal income or Applicable Tax State income or
franchise tax purposes. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 6.6.
SECTION 6.7. 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 monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents to which the Owner Trustee is a party. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document
18
under any circumstances, except (i) for its own willful misconduct, bad faith
or negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.9 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made 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 good faith in accordance with the
instructions of any Certificateholder, the Indenture Trustee, the
Depositor, the Administrator or the Servicer;
(c) no provision of this Agreement or any other 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 other 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 or amounts payable
or distributable on the Certificates;
(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 Depositor 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 other Basic
Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the
other Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Depositor or the
Indenture Trustee under any of the Basic Documents or otherwise and the
Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the Indenture
or the Depositor or the Servicer under the Sale and Servicing Agreement;
and
(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 other Basic Document, at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby.
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The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its willful misconduct, bad faith or negligence in the performance of any
such act.
SECTION 6.8. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, 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 6.9. Representations and Warranties. (a) The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(i) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States of America.
It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(ii) 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.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware State 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.
SECTION 6.10. Reliance; Advice of Counsel. (a) The Owner Trustee may rely
upon, shall be protected in relying upon, and 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 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 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 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 other
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with
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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 not contrary to this Agreement or any other Basic Document.
SECTION 6.11. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created, __________ 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 other Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.12. 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 Depositor, and the 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
other 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 Certificateholders 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 any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer 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, the Administrator or the Servicer or any subservicer taken
in the name of the Owner Trustee.
SECTION 6.13. Owner Trustee May Own Certificates and Notes. __________,
in its individual or any other capacity, may become the owner or pledgee of
Certificates or Notes and may deal with the Depositor, the Servicer, the
Administrator and the Indenture Trustee in banking transactions with the same
rights as they would have if it was not the Owner Trustee.
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Servicer, pursuant to
the Sale and Servicing Agreement, shall pay to the Owner Trustee as
compensation for its services
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hereunder such fees as have been separately agreed upon prior to the date
hereof between the Servicer and the Owner Trustee, and the Servicer pursuant
to the Sale and Servicing Agreement shall reimburse the Owner Trustee 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. The Servicer shall
indemnify the Owner Trustee pursuant to the Sale and Servicing Agreement.
SECTION 7.2. Payments to 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.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust. (a) The Trust shall dissolve and
wind up, (i) upon the maturity or other liquidation of the last remaining
Receivable and the disposition of any amounts received upon such maturity or
liquidation, (ii) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement, Article V and
Section 8.2, or (iii) upon the entry of an order for the dissolution of the
Trust from a court of competent jurisdiction. Any Insolvency Event,
liquidation, dissolution, death or incapacity with respect to any
Certificateholder [or Certificate Owner] shall not (x) operate to terminate
this Agreement or dissolve and/or terminate the Trust, nor (y) entitle such
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 Trust or Owner Trust Estate nor (z) otherwise affect
the rights, obligations and liabilities of the parties hereto. Upon
dissolution of the Trust, the Owner Trustee shall wind up the business and
affairs of the Trust as required by Section 3808 of the Statutory Trust
Statute.
(b) Except as provided in Section 8.1(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice
of such dissolution from the Servicer, 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
Certificate Paying Agent therein designated, (ii) the amount of any such final
payment (after reservation of sums sufficient to pay all claims and
obligations, if any, known to the Owner Trustee and payable by the Trust) and
(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 Certificate Paying Agent therein specified.
The Owner Trustee shall give such notice to the Certificate Registrar (if
other than the Owner Trustee) and the Certificate Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Certificate Paying Agent shall cause to be
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distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2. Upon the satisfaction and discharge of the Indenture,
and receipt of a certificate from the Indenture Trustee stating that all
Noteholders have been paid in full and that the Indenture Trustee is aware of
no claims remaining against the Trust in respect of the Indenture and the
Notes, the Owner Trustee, in the absence of actual knowledge of any other
claim against the Trust, shall be deemed to have made reasonable provision to
pay all claims and obligations (including conditional, contingent or unmatured
obligations) for purposes of Section 3808(e) of the Statutory Trust Statute.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six (6) months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
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 Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable
escheat laws, any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Statutory Trust Statute whereupon the
Trust and this Agreement shall terminate.
SECTION 8.2. [Prepayment of Certificates. (a) The Certificates shall be
prepaid in whole, but not in part, at the direction of the Servicer pursuant
to Section 8.1 of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the assets of the Trust
pursuant to said Section 8.1, and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay the unpaid principal
amount of the Notes and the Certificate Balance plus accrued and unpaid
interest (including any overdue interest, to the extent lawful) thereon. The
Servicer shall furnish the Rating Agencies and the Owner Trustee notice of
such prepayment. If the Certificates are to be prepaid pursuant to this
Section 8.2(a), the Servicer shall furnish notice of such election to the
Owner Trustee not later than forty (40) days prior to the Prepayment Date and
the Trust shall deposit by 10:00 A.M. (New York City time) on the Prepayment
Date in the Certificate Distribution Account the Prepayment Price of the
Certificates to be redeemed, whereupon all such Certificates shall be due and
payable on the Prepayment Date.
(b) Notice of prepayment under Section 8.2(a) shall be given by the Owner
Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted immediately following receipt of notice from the Trust or Servicer
pursuant to Section 8.2(a), but not later than thirty (30) days prior to the
applicable Prepayment Date, to each Certificateholder as of the close of
business on the Record Date preceding the applicable Prepayment Date, at such
Certificateholder's address or facsimile number appearing in the Certificate
Register.
All notices of prepayment shall state:
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(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to be surrendered for payment
of the Prepayment Price (which shall be the office or agency of the Owner
Trustee to be maintained as provided in Section 3.8).
Notice of prepayment of the Certificates shall be given by the Owner
Trustee in the name and at the expense of the Trust. Failure to give notice of
prepayment, or any defect therein, to any Certificateholder shall not impair
or affect the validity of the prepayment of any other Certificate.
(c) Following notice of prepayment as required by Section 8.2(b), the
Certificates shall on the Prepayment Date be paid by the Trust at the
Prepayment Price and (unless the Trust shall default in the payment of the
Prepayment Price) no interest shall accrue on the Prepayment Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Prepayment Price.]
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee. (a) The Owner
Trustee shall at all times (i) be authorized to exercise corporate trust
powers; (ii) have a combined capital and surplus of at least $50,000,000 and
shall be subject to supervision or examination by federal or state
authorities; and (iii) shall have (or shall have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or be
otherwise acceptable to the Rating Agencies. If such corporation 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 9.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.1, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.2.
(b) The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Statutory Trust Statute.
SECTION 9.2. Resignation or Removal of Owner Trustee. (a) The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator and the
Depositor, and will provide to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under the Exchange Act with respect to the resignation of the Owner Trustee.
Upon receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee and
one copy to the applicable successor Owner Trustee. If no successor Owner
Trustee
24
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 may petition any court of competent jurisdiction for the appointment
of a successor Owner Trustee; provided, however, that such right to appoint or
to petition for the appointment of any such successor shall in no event
relieve the resigning Owner Trustee from any obligations otherwise imposed on
it under the Basic Documents until such successor has in fact assumed such
appointment.
(b) If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 or resigns pursuant to Section
9.2 of this Agreement and the ineligible or non-resigning Owner Trustee shall
fail to resign after written request therefor by the Administrator, or if at
any time the Owner Trustee shall be legally unable to act, or if at any time
an Insolvency Event with respect to the Owner Trustee shall have occurred and
be continuing, then the Administrator may remove the Owner Trustee. If at any
time the Owner Trustee shall fail to comply with any of its obligations under
Section 9.2 or Section 9.4 of this Agreement or Article X of the Sale and
Servicing Agreement during the period that the Depositor is required to file
Exchange Act Reports with respect to the Trust and such failure is not
remedied within the lesser of ten calendar days and the period of time in
which the related Exchange Act Report is required to be filed (without taking
into account any extensions), then the Depositor may remove the Owner Trustee.
If the Administrator or Depositor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee, by written instrument, in
triplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed, one copy to the successor Owner Trustee, and one
copy to the Depositor, together with the basis for removal and shall pay all
fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of an Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3, payment of all fees and expenses owed
to the outgoing Owner Trustee and the filing of a certificate of amendment to
the Certificate of Trust if required by the Statutory Trust Statute. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to the Certificateholders, the Indenture Trustee, the Noteholders and
each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. (a) Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement and deliver to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under the Exchange Act with respect to the successor
Owner Trustee. Upon the resignation or removal of the predecessor Owner
Trustee becoming effective pursuant to Section 9.2, 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 Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments
25
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.
(b) No successor Owner Trustee shall accept appointment as provided in
this Section 9.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 9.1.
(c) Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.3, the Administrator shall mail notice of the successor of
such Owner Trustee to all Certificateholders, the Servicer, the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within ten (10) days after acceptance of such
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Administrator.
(d) Any successor Owner Trustee appointed hereunder shall file the
amendments to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Owner Trustee in
the State of Delaware.
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, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 9.1; and
provided further, that (i) the Owner Trustee shall mail notice of such merger
or consolidation to the Rating Agencies and the Depositor not less than
fifteen (15) days prior to the effective date thereof, (ii) the Owner Trustee
shall file an amendment to the Certificate of Trust as required by Section 9.3
and (iii) the Owner Trustee will provide the Depositor in writing and in form
and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under the Exchange Act with respect to the successor Owner Trustee.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person, in such capacity, such title to the
Owner Trust Estate, or any part thereof, and, subject to the other provisions
of this Section 9.5, such powers, duties, obligations, rights and trusts as
the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator shall not have joined in such appointment within fifteen
(15) days after the receipt by it of a request so to do, the Owner Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of
26
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.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the 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 Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to 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 IX. 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 Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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.
SECTION 9.6. Compliance with Statutory Trust Statute. Notwithstanding
anything herein to the contrary, the Trust shall at all times have at least
one trustee which meets the requirements of Section 3807(a) of the Statutory
Trust Statute.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating Agencies and the Indenture Trustee, without the consent of any of
the Noteholders or the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions in this Agreement inconsistent with any other
provision of this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel satisfactory to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder; and provided further that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that
such amendment (A) will not materially adversely affect the federal or any
Applicable Tax State income or franchise taxation of any outstanding Note or
Certificate, or any Noteholder or Certificateholder and (B) will not cause the
Trust to be taxable as a corporation for federal or any Applicable Tax State
income or franchise tax purposes.
(b) This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies and
the Indenture Trustee, with the consent of (i) the holders of Notes evidencing
not less than a majority of the principal amount of the [Controlling Class]
[Notes] Outstanding and (ii) the holders of Certificates evidencing not less
than a majority of the [Percentage Interests evidenced by the Certificates]
[Certificate Balance], 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
Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments on
Receivables or distributions that are required to be made for the benefit of
the Noteholders or the Certificateholders, or (ii) reduce the aforesaid
percentage of the principal amount of the Notes Outstanding and the
[Percentage Interests] [Certificate Balance] required to consent to any such
amendment, without the consent of all the Noteholders and Certificateholders
affected thereby; and provided further, that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that
such amendment (A) will not materially adversely affect the federal or any
Applicable Tax State income or franchise taxation of any outstanding Note or
Certificate, or any Noteholder or Certificateholder and (B) will not cause the
Trust to be taxable as a corporation for federal or any Applicable Tax State
income or franchise tax purposes.
(c) Promptly after the execution of any such amendment, the Owner Trustee
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section 10.1 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
28
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(e) 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.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. 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.
(g) In connection with the execution of any amendment to this Agreement
or any amendment to any other agreement to which the Trust is a party, the
Owner Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their [undivided ownership interest]
[beneficial interests] therein only in accordance with Articles V and VIII. No
transfer, by operation of law or otherwise, of any right, title, or interest
of the Certificateholders to and in their [undivided ownership] [beneficial]
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. Limitation on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Administrator, the Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
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 by the intended recipient or three (3) Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the respective Corporate
Trust Office; if to the Depositor, addressed to USAA Acceptance, LLC at the
address of its principal executive office first above written; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
29
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not such Certificateholder receives such
notice.
SECTION 10.5. Severability. Any provision of this Agreement or the
Certificates 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 or
thereof, 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 be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 10.8. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), and the Depositor solely in relation to
the Trust, by entering into this Agreement, and each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that it will not, until
after the Notes have been paid in full, institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the other Basic Documents.
SECTION 10.9. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee 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 Certificates or the other Basic
Documents.
SECTION 10.10. 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 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
30
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.
USAA ACCEPTANCE, LLC,
as Depositor
By:
---------------------------
Name:
Title:
----------,
as Owner Trustee
By:
---------------------------
Name:
Title:
31
EXHIBIT A
FORM OF CLASS [ ] CERTIFICATE
[FOR BOOK-ENTRY CERTIFICATES] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[THE PRINCIPAL OF THIS CERTIFICATE IS PAYABLE IN INSTALLMENTS AS SET
FORTH IN THE TRUST AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.]
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN
SECTION 3.4 OF THE AMENDED AND RESTATED TRUST AGREEMENT UNDER WHICH THIS
CERTIFICATE IS ISSUED (A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE
OWNER TRUSTEE UPON REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN
INVESTMENT LETTER IN WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.]
[THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) WHETHER OR NOT
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN
SECTION 4975(E)(1) OF THE CODE OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY (EACH, A
"BENEFIT PLAN"). BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER THEREOF
SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT
PLAN.] [THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) WHETHER OR NOT
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II) A PLAN DESCRIBED IN
SECTION 4975(E)(1) OF THE CODE OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE
A-1
ENTITY (EACH, A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING THIS CERTIFICATE,
THE HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.]
[NUMBER $]
B-__ [CUSIP NO. [ ]]
[Percentage Interests:___%]
USAA AUTO OWNER TRUST 200_-[ ]
[CLASS [ ] [o]% ASSET BACKED] CERTIFICATE
evidencing a [fractional undivided] [beneficial] interest in the Trust, as
defined below. The property of the Trust includes a pool of motor vehicle
retail installment loans, secured by security interests in the motor vehicles
financed thereby, conveyed by USAA Acceptance, LLC to the Trust. The property
of the Trust has been pledged to the Indenture Trustee pursuant to the
Indenture to secure the payment of the Notes issued thereunder.
(This Certificate is not a deposit, does not represent an interest in or
obligation of USAA Federal Savings Bank or any of its Affiliates and is not
insured by the Federal Deposit Insurance Corporation or any other entity.)
THIS CERTIFIES THAT ___________ is the registered owner of [a
__________________________________ Percentage Interest in] [______________
dollars certificate principal balance of Class [ ] [o]% Asset Backed
Certificates of] USAA Auto Owner Trust 200_-[ ] (the "Trust") formed by USAA
Acceptance, LLC, a Delaware limited liability company (the "Depositor").
The Trust is governed pursuant to an Amended and Restated Trust
Agreement, dated as of _________, 200_ (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"),
between the Depositor and _____________________, a ______________, not in its
individual capacity but solely as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates [(herein
called the "Certificates")] [designated as "Class [ ] [o]% Asset Backed
Certificates" (herein called the "Class B Certificates" or "Certificates")]
which are issued under and are subject to the terms, provisions and conditions
of the Trust Agreement, to which Trust Agreement the holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. Also issued under the Indenture, dated as of
___________, 200_ (as from time to time amended, supplemented or otherwise
modified and in effect, the "Indenture"), between the Trust and
______________, as indenture trustee (in such capacity, the "Indenture
Trustee"), are the Notes designated as "Class [ ] [o]% Asset Backed Notes",
"Class [ ] [o]% Asset Backed Notes", "Class [ ] [o]% Asset Backed Notes" [,]
[and] "Class [ ] [o]% Asset Backed Notes" [and "Class [
A-2
] [o]% Asset Backed Notes"] (collectively, the "Notes"). The property of the
Trust includes (i) a pool of motor vehicle retail installment loans for new
and used automobiles and light trucks and certain rights and obligations
thereunder (the "Receivables"); (ii) monies received thereunder on or after
the Cut-off Date; (iii) security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Trust in
the Financed Vehicles; (iv) rights to proceeds with respect to the Receivables
from claims on theft, physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors; (v) all of the
Seller's rights to the Receivable Files; (vi) such amounts as from time to
time may be held in one or more accounts maintained pursuant to the Sale and
Servicing Agreement, dated as of __________, 200_ (as from time to time
amended, supplemented or otherwise modified and in effect, the "Sale and
Servicing Agreement"), by and among the Trust, the Depositor, and USAA Federal
Savings Bank, as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"); (vii) payments and proceeds with respect to
the Receivables held by the Servicer; (viii) all property (including the right
to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable repurchased by the Servicer or purchased by the Seller); (ix)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cut-off Date; and (x)
all present and future claims, demands, causes of action and choses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing. THE RIGHTS OF THE TRUST
IN THE FOREGOING PROPERTY OF THE TRUST HAVE BEEN PLEDGED TO THE INDENTURE
TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Under the Trust Agreement, there will be distributed on the 15th day of
each month, or if such 15th day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing ____________, 200_, to the Person in
whose name this Certificate is registered at the close of business on the last
day of the preceding month (the "Record Date") such Certificateholder's
percentage interest in the amount to be distributed to [Class B]
Certificateholders on such Payment Date pursuant to the Trust Agreement.
Following the occurrence and during the continuation of certain events of
default under the Indenture which result in an acceleration of the Notes, no
distributions or interest will be made on the Certificates until all principal
and interest on the Notes has been paid in full.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO
RECEIVE DISTRIBUTIONS [AND INTEREST] IN RESPECT OF THIS CERTIFICATE ARE
SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT, THE INDENTURE AND THE TRUST AGREEMENT.
It is the intent of the Depositor and the Certificateholders that, to the
extent the Certificates are beneficially owned by a single Certificateholder
for purposes of federal income, state and local income and single business tax
and any other income taxes, the Trust will be
33
treated as a disregarded entity and to the extent the Certificates are
beneficially owned by more than one Certificateholder as a partnership with
the Certificateholders being treated as partners in that tax partnership. A
Certificateholder, by its acceptance of a Certificate, agrees to so treat, and
to take no action inconsistent with the treatment of, the Trust for such tax
purposes a disregarded entity and not as a separate tax entity for federal
income tax and state income and franchise tax purposes.
Each Certificateholder, by its acceptance of a Certificate, agrees to
treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as the beneficial ownership interests in an
entity that is disregarded if there is only one Certificateholder or as
partnership interests in the Trust if there is more than one
Certificateholder.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not, until after the Notes have been
paid in full, institute against the Trust, or join in any institution against
the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in New York, New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by the Owner Trustee by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Certificateholder hereof to
any benefit under the Trust Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the
State of Delaware and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
USAA AUTO OWNER TRUST 200_-[ ]
Dated: __________, 200_ By: ______________________________
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
Dated: ____________, 200_
___________________________________
not in its individual capacity
but solely as Owner Trustee
By: ______________________________
Authorized Officer
A-5
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee
or any Affiliates of any of them other than the Trust and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated herein, in the Trust Agreement or in the other Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality or by any other entity and is limited in right of
payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee with the consent
of the Noteholders and the Certificateholders evidencing not less than a
majority of the principal amount of the [Controlling Class] [Notes]
Outstanding and the [Percentage Interests] [Certificate Balance],
respectively. Any such consent by the holder of this Certificate shall be
conclusive and binding on such Certificateholder and on all future holders of
this Certificate and of any Certificate issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of any of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of the Certificates are registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Owner Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in Wilmington, Delaware, accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
The Certificates are issuable as [definitive] [registered] Certificates
[in a minimum of one percent Percentage Interest in the Trust] [without
coupons in denominations of at least $1,000 and in integral multiples of
$1,000 in excess thereof]. Certificates are exchangeable for new Certificates
and authorized denominations evidencing the same aggregate denomination, as
requested by the Certificateholder surrendering the same. No service charge
will be made for any such registration of transfer or exchange, but the Owner
Trustee or the Certificate Registrar may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
A-6
[The Certificates may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) whether or not subject to the provisions of
Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or
(c) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity or which uses plan assets to acquire
Certificates (each, a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.]
[The Certificates may be acquired only by an entity that either: (A) (x)
for the entire period during which such purchaser or transferee holds its
interest in the Certificates, no portion of such purchaser's or transferee's
assets constitutes assets of any "employee benefit plan" within the meaning of
Section 3(3) of ERISA, whether or not subject to Title I of ERISA, including
any U.S. governmental or non-U.S. pension plan, or any "plan" subject to
Section 4975 of the Code (each, a "Covered Plan") or (B) (1) the assets used
by such purchaser or transferee to acquire the Certificates (or any interest
therein) constitute assets of an insurance company general account, (2) for
the entire period during which such purchaser or transferee holds its interest
in the Certificates, less than 25% of the assets of such insurance company
general account will constitute "plan assets" of any Covered Plan and (3) the
acquisition and holding of the Certificates by such purchaser or transferee
will satisfy the requirements of XXXX 00-00 and will not constitute a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code or a violation of any applicable Similar Law.
In addition, the Certificates may not be acquired by or on behalf of a
Person other than (A) a citizen or resident of the United States, (B) a
corporation or partnership organized in or under the laws of the United
States, any state thereof or the District of Columbia, (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, (D) a trust with respect to which a U.S. court is
able to exercise primary supervision over the administration of such trust and
one or more Persons meeting the conditions of this paragraph has the authority
to control all substantial decisions of the trust or (E) a Person not
described in clauses (A) through (D) above whose ownership of the Certificates
is effectively connected with such Person's conduct of a trade or business
within the United States (within the meaning of the Code) and who provides the
Owner Trustee and the Depositor with an IRS Form W-8 ECI (and such other
certifications, representations, or opinions of counsel as may be requested by
the Owner Trustee or the Depositor).]
The Trust shall dissolve (i) upon the maturity or other liquidation of
the last remaining Receivable and the disposition of any amounts received upon
such maturity or liquidation, (ii) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
Indenture, the Trust Agreement and the Sale and Servicing Agreement, or (iii)
the entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, and upon such dissolution any remaining assets of the Trust
shall be distributed to the Depositor. The Servicer of the Receivables may at
its option purchase the assets of the Trust at a price specified in the Sale
and Servicing Agreement, and such purchase of the Receivables and other
property of the Trust will effect an early retirement of the Notes and the
Certificates; however, such right of purchase is exercisable only as of the
last day of any Collection Period as of which the Pool Balance is less than or
equal to 10% of the Initial Pool Balance.
A-7
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 type 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:___________
________________*/
Signature Guaranteed:
________________*/
*/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.
A-8
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
USAA AUTO OWNER TRUST 200_-[ ]
This Certificate of Trust of USAA Auto Owner Trust 200_-[ ] (the
"Trust"), is being duly executed and filed by ______________________________,
[ ], as owner trustee (the "Owner Trustee"), to form a statutory trust under
the Delaware Statutory Trust Act (12 Delaware Code, ss. 3801 et seq.) (the
"Act").
1. Name. The name of the statutory trust formed hereby is USAA Auto Owner
Trust 200_-[ ].
2. Owner Trustee. The name and business address of the Owner Trustee is
_________________________, [ ].
3. Effective Date. This Certificate of Trust shall 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)(1)
of the Act.
__________________________________,
not in its individual capacity but
solely as Owner Trustee
By:________________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: USAA Auto Owner Trust 200_-[ ] Asset-Backed Certificates
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Certificates (the
"Certificates") we certify that (a) we understand that the Certificates have
not been registered under the Securities Act of 1933, as amended (the "Act"),
and are being transferred by us in a transaction that is exempt from the
registration requirements of the Act and (b) we have 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 Act.
Very truly yours,
[NAME OF TRANSFEROR]
By: ___________________________________
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: USAA Auto Owner Trust 200_-[ ] Asset-Backed Certificates
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Certificates (the
"Certificates") we certify that (a) we understand that the Certificates are
not being registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an institutional "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
seller concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (f) below),
(e) we have 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, or taken any other action that would
result in a violation of Section 5 of the Act or any state securities laws and
(f) we will not sell, transfer or otherwise dispose of any Certificates unless
(1) such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act and in compliance with any relevant state
securities laws or is exempt from such registration requirements and (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate and (3) the
purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Amended and Restated Trust Agreement dated as of
____________, 20__, between USAA Acceptance LLC and [ ],
as Owner Trustee.
We represent and warrant that we are not and are not acquiring the
Certificates for the account of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) whether or not subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
D-1
Very truly yours,
[NAME OF TRANSFEREE]
By: ___________________________
Authorized Officer
D-2
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: USAA Auto Owner Trust 200_-[ ] Asset-Backed Certificates
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Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Certificates (the
"Certificates") we certify that (a) we understand that the Certificates are
not being registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the seller concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) we have not, nor
has anyone acting on our behalf, offered, transferred, pledged, sold or
otherwise disposed of the Certificates or any interest in the Certificates, or
solicited any offer to buy, transfer, pledge or otherwise dispose of the
Certificates or any interest in the Certificates from any person in any
manner, or made any general solicitation by means of general advertising or in
any other manner, or taken any other action that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the Act or any
state securities laws or require registration pursuant thereto, and we will
not act, or authorize any person to act, in such manner with respect to the
Certificates, and (e) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A or (ii) pursuant to another exemption from registration under the
Act.
We represent and warrant that we are not and are not acquiring the
Certificates for the account of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) whether or not subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
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Very truly yours,
[NAME OF TRANSFEREE]
By: ___________________________
Authorized Officer
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APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
