Exhibit 4.2
==============================================================================
AMENDED AND RESTATED TRUST AGREEMENT
between
USAA ACCEPTANCE, LLC
as Depositor
and
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION
as Owner Trustee
Dated as of November 17, 2004
==============================================================================
Table of Contents
Page
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........................9
SECTION 3.11. Book-Entry Certificates...........................10
SECTION 3.12. Notices to Clearing Agency........................10
SECTION 3.13. Definitive Certificates...........................11
SECTION 3.14. Authenticating Agents.............................11
i
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...................................12
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...........................................13
SECTION 5.2. Application of Trust Funds........................13
SECTION 5.3. Method of Payment.................................14
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.........15
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.................................15
SECTION 6.2. General Duties....................................16
SECTION 6.3. Action upon Instruction...........................16
SECTION 6.4. No Duties Except as Specified in this
Agreement or in Instructions......................17
SECTION 6.5. No Action Except Under Specified Documents or
Instructions......................................17
SECTION 6.6. Restrictions......................................18
SECTION 6.7. Acceptance of Trusts and Duties...................18
SECTION 6.8. Furnishing of Documents...........................19
SECTION 6.9. Representations and Warranties....................19
SECTION 6.10. Reliance; Advice of Counsel.......................20
SECTION 6.11. Not Acting in Individual Capacity.................20
SECTION 6.12. Owner Trustee Not Liable for Certificates or
Receivables.......................................20
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.........................21
ii
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust..........................21
SECTION 8.2. Prepayment of Certificates........................22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee........23
SECTION 9.2. Resignation or Removal of Owner Trustee...........24
SECTION 9.3. Successor Owner Trustee...........................24
SECTION 9.4. Merger or Consolidation of Owner Trustee..........25
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.....25
SECTION 9.6. Compliance with Statutory Trust Statute...........26
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments........................27
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholders................................28
SECTION 10.3. Limitation on Rights of Others....................28
SECTION 10.4. Notices...........................................28
SECTION 10.5. Severability......................................29
SECTION 10.6. Separate Counterparts.............................29
SECTION 10.7. Successors and Assigns............................29
SECTION 10.8. No Petition.......................................29
SECTION 10.9. No Recourse.......................................29
SECTION 10.10. Headings..........................................29
SECTION 10.11. GOVERNING LAW.....................................29
EXHIBIT A FORM OF CLASS B CERTIFICATE........................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST.......................B-1
APPENDIX A Definitions and Usage.....................Appendix A-1
iii
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 17, 2004 (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 WACHOVIA BANK OF DELAWARE, NATIONAL
ASSOCIATION, a national banking association (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
One Xxxxxx Square, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 for
the purpose of establishing the USAA Auto Owner Trust 2004-3.
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of November 12, 2004, 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 2004-3", 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;
(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 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 November
12, 2004, 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 (i) the Trust constitute a statutory
trust under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) 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,
and the
2
Notes constituting indebtedness of the partnership. The parties agree that,
unless otherwise required by the appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Trust as a partnership for
such tax purposes. 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.
(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
3
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. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent
of the Depositor and the Servicer that, for purposes of federal income, state
and local income and franchise tax and any other income taxes, the Trust will
be treated as a partnership and the Certificateholders and the Depositor will
be treated as partners in that partnership. The Depositor hereby agrees and
the Certificateholders by acceptance of a Certificate agree to such treatment
and each agrees to take no action inconsistent with such treatment. For
purposes of federal income, State and local income and franchise tax and any
other income taxes each month:
(a) gross ordinary income of the Trust for such month as
determined for federal income tax purposes shall be allocated among the
Certificateholders as of the Record Date occurring within such month, in
proportion to their ownership of the Certificate Balance on such date,
in an amount up to the sum of (i) the Accrued Class B Certificate
Interest, (ii) the portion of the market discount on the Receivables
accrued during such month that is allocable to the excess, if any, of
the aggregate Initial Certificate Balance over the initial aggregate
issue price of the Certificates, (iii) prepayment premium payable to the
Certificateholders for such month and (iv) any other amounts of income
payable to the Certificateholders for such month; and
(b) thereafter all remaining net income of the Trust (subject to
the modifications set forth below) for such month as determined for
federal income tax
4
purposes (and each item of income, gain, credit, loss or deduction
entering into the computation thereof) shall be allocated to the
Depositor, to the extent thereof.
If the gross ordinary income of the Trust for any month is insufficient
for the allocations described in paragraph (a) above, subsequent gross
ordinary income shall first be allocated to make up such shortfall before any
allocation pursuant to paragraph (b) above. Net losses of the Trust, if any,
for any month as determined for federal income tax purposes (and each item of
income, gain, credit, loss or deduction entering into the computation thereof)
shall be allocated to the Depositor to the extent the Depositor is reasonably
expected to bear the economic burden of such net losses, and any remaining net
losses shall be allocated among the Certificateholders as of the Record Date
occurring within such month in proportion to their ownership of the
Certificate Balance on such Record Date. The Trust is authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations 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 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:
5
(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.
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 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
6
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 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.
(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 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
7
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 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 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
8
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
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. Certain Rights of Depositor. The 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 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
9
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 Depositor and (iii) the Rating Agency Condition is
satisfied.
SECTION 3.11. 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;
(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.
10
SECTION 3.13. Definitive Certificates. 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.
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.
11
(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 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 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 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
12
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
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 Certificate Balance at the time of the delivery of such
notice.
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
13
5.4(b) of the Indenture on or prior to such Payment Date and make or cause to
be made distributions and payments 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 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 $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.
14
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 on the accrual
method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder, as may be required by the Code, such information as may be
required (including Schedule K-1) to enable each Certificateholder to prepare
its federal and State income tax returns, (c) file (or cause to be filed) such
tax returns relating to the Trust (including a partnership information return,
IRS Form 1065), and make such elections, as may from time to time be required
or appropriate under any applicable State or federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for federal income tax purposes, (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. 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) 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 A-1 Notes in the aggregate principal
15
amount of $256,000,000, (ii) Class A-2 Notes in the aggregate principal amount
of $247,000,000, (iii) Class A-3 Notes in the aggregate principal amount of
$385,000,000 and (iv) Class A-4 Notes in the aggregate principal amount of
$220,170,000. 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 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.
16
(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.
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.
17
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 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;
18
(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.
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.
19
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 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, Wachovia Bank of
Delaware, National Association 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
20
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. Wachovia
Bank of Delaware, National Association, 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 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.
21
(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 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
22
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:
(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
23
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. 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 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 the
Administrator 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 duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee, and shall pay all fees owed to
the outgoing Owner Trustee.
(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. 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
24
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
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 not less than fifteen (15) days prior
to the effective date thereof and (ii) the Owner Trustee shall file an
amendment to the Certificate of Trust as required by Section 9.3.
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
25
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.
ARTICLE X
MISCELLANEOUS
26
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 Notes
Outstanding and (ii) the holders of Certificates evidencing not less than a
majority of the 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
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 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.
27
(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 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 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.
(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.
28
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.
29
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: /s/ Xxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Trust Officer
30
EXHIBIT A
FORM OF CLASS B 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.
$
B-__ CUSIP XX. 000000 XX
0
XXXX AUTO OWNER TRUST 2004-3
CLASS B 4.48% ASSET BACKED CERTIFICATE
evidencing a 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 ____________
______________ dollars certificate principal balance of Class B 4.48% Asset
Backed Certificates of USAA Auto Owner Trust 2004-3 (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 November 17, 2004 (as from time to time amended,
supplemented or otherwise modified and
A-1
in effect, the "Trust Agreement"), between the Depositor and Wachovia Bank of
Delaware, National Association, a national banking association, 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 designated
as "Class B 4.48% 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 November 17, 2004 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between
the Trust and JPMorgan Chase Bank, National Association, as indenture trustee
(in such capacity, the "Indenture Trustee"), are the Notes designated as
"Class A-1 2.3365% Asset Backed Notes", "Class A-2 2.79% Asset Backed Notes",
"Class A-3 3.16% Asset Backed Notes" and "Class A-4 3.53% 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 November 1, 2004 (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 December 15, 2004, to the Person in whose
name this Certificate is registered at the
A-2
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, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
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.
A-3
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 2004-3
Dated: November 17, 2004 By: Wachovia Bank of Delaware, National
Association
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: November 17, 2004
Wachovia Bank of Delaware, National
Association
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 Notes Outstanding and the 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 registered Certificates 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 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. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-8
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
USAA AUTO OWNER TRUST 2004-3
This Certificate of Trust of USAA Auto Owner Trust 2004-3 (the "Trust"),
is being duly executed and filed by Wachovia Bank of Delaware, National
Association, a national banking association, 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 2004-3.
2. Owner Trustee. The name and business address of the Owner Trustee is
Wachovia Bank of Delaware, National Association, One Xxxxxx Square, 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, XX 00000.
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.
Wachovia Bank of Delaware, National Association,
not in its individual capacity but solely as
Owner Trustee
By:______________________________________
Name:
Title:
B-1
Appendix A
DEFINITIONS AND USAGE
The following rules of construction and usage shall be applicable to any
agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby and
in any certificate or other document made or delivered pursuant thereto,
accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement, instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in an agreement or instrument refer to such agreement or instrument
as a whole and not to any particular provision or subdivision thereof;
references in an agreement or instrument to "Article," "Section" or another
subdivision or to an attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to such agreement or
instrument; and the term "including" and its variations shall be deemed to be
followed by "without limitation."
The definitions contained in this Appendix are equally applicable to
both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to below or in
any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Accrued Class A Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class A Noteholders' Monthly Accrued Interest for such
Payment Date and the Class A Noteholders' Interest Carryover Shortfall for
such Payment Date.
Appendix A-1
"Accrued Class B Certificate Interest" shall mean, with respect to any
Payment Date, the sum of the Class B Certificateholders' Monthly Accrued
Interest for such Payment Date and the Class B Certificateholders' Interest
Carryover Shortfall for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Administration Agreement" shall mean the Administration Agreement,
dated as of November 17, 2004, by and among the Administrator, the Issuer and
the Indenture Trustee.
"Administrator" shall mean the Bank, in its capacity as administrator
under the Administration Agreement, or any successor Administrator thereunder.
"Advance" shall mean the amount of interest, as of a Determination Date,
which the Servicer is required to advance on the Receivables pursuant to
Section 4.4(a) of the Sale and Servicing Agreement.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" shall have meanings correlative to the foregoing.
"Amount Financed" shall mean, with respect to a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the annual
rate of finance charges stated in the Receivable.
"Applicable Tax State" shall mean, as of any date of determination, each
State as to which any of the following is then applicable: (a) a State in
which the Owner Trustee maintains its Corporate Trust Office and (b) the State
of Texas.
"Authenticating Agent" shall have the meaning specified in Section 2.14
of the Indenture or 3.14 of the Trust Agreement, as applicable.
"Authorized Officer" shall mean, (i) with respect to the Issuer, any
officer within the Corporate Trust Office of the Owner Trustee, including any
vice president, assistant vice president, secretary, assistant secretary or
any other officer of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers and, for so
long as the Administration Agreement is in full force and effect, any officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement; and (ii) with respect to the Indenture Trustee
or the Owner Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, as the case may be, including any vice
president, assistant vice president, secretary, assistant secretary or any
other officer of the Indenture Trustee or the Owner Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a
Appendix A-2
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject, in
each case having direct responsibility for the administration of the Indenture
or the Trust Agreement, as applicable, and shall also mean, with respect to
the Owner Trustee, any officer of the Administrator.
"Available Collections" shall mean, for any Payment Date, the sum of the
following amounts with respect to the Collection Period preceding such Payment
Date: (i) all payments collected with respect to Receivables; (ii) all
Liquidation Proceeds attributable to Receivables which were designated as
Defaulted Receivables in prior Collection Periods in accordance with the
Servicer's customary servicing procedures; (iii) all Advances made by the
Servicer of interest due on the Receivables; (iv) the Purchase Amount received
with respect to each Receivable that became a Purchased Receivable during such
Collection Period; and (v) partial prepayments of any refunded item included
in the principal balance of a Receivable, such as extended warranty protection
plan costs, or physical damage, credit life, disability insurance premiums, or
any partial prepayment which causes a reduction in the Obligor's periodic
payment to an amount below the Scheduled Payment as of the Cut-off Date;
provided however, that in calculating the Available Collections the following
will be excluded: (i) amounts received on any Receivable to the extent that
the Servicer has previously made an unreimbursed Advance on such Receivable
and the amount received exceeds the accrued and unpaid interest on such
Receivable; (ii) amounts received on any of the Receivables to the extent that
the Servicer has previously made an unreimbursed Advance on a Receivable which
is not recoverable from collections on the particular Receivable; (iii) all
payments and proceeds (including Liquidation Proceeds) of any Receivables the
Purchase Amount of which has been included in Available Funds in a prior
Collection Period; (iv) Liquidation Proceeds with respect to a Receivable
attributable to accrued and unpaid interest thereon (but not including
interest for the then current Collection Period) but only to the extent of any
unreimbursed Advances; and (v) amounts constituting the Supplemental Servicing
Fee.
"Available Funds" shall mean, for any Payment Date, the sum of the
Available Collections for such Payment Date and the Reserve Account Excess
Amount for such Payment Date.
"Average Delinquency Ratio" shall mean, for any Payment Date, the
average of the Delinquency Ratios for the preceding three Collection Periods.
"Average Delinquency Trigger Percentage" shall mean 1.25%.
"Average Net Loss Ratio" shall mean, for any Payment Date, the average
of the Net Loss Ratios for the preceding three Collection Periods.
"Average Net Loss Trigger Percentage" shall mean 1.25%.
"Bank" shall mean USAA Federal Savings Bank, a federally chartered
savings association.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11
U.S.C. 101 et seq., as amended.
Appendix A-3
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreement, the Indenture, the Administration Agreement, the Underwriting
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Book-Entry Certificate" shall mean, a beneficial interest in any of the
Class B Certificates issued in book-entry form as described in Section 3.2 of
the Trust Agreement.
"Book-Entry Note" shall mean a beneficial interest in any of the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes,
in each case issued in book-entry form.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in the State of New York,
the State of Delaware or the State of Texas are authorized by law, regulation
or executive order to be closed.
"Certificate Balance" shall mean, as the context so requires, (i) with
respect to all the Class B Certificates, an amount equal to, initially, the
Initial Certificate Balance of the Class B Certificates and, thereafter, an
amount equal to the Initial Certificate Balance of the Class B Certificates,
reduced by all amounts distributed to Class B Certificateholders and allocable
to principal or (ii) with respect to any Class B Certificate, an amount equal
to, initially, the initial denomination of such Class B Certificate and,
thereafter, an amount equal to such initial denomination, reduced by all
amounts distributed in respect of such Class B Certificate and allocable to
principal; provided, that, unless all of the Certificates are owned by the
Depositor or an Affiliate of the Depositor, in determining whether the holders
of Class B Certificates evidencing the requisite portion or percentage of the
Certificate Balance have given any request, demand, authorization, direction,
notice, consent, or waiver hereunder or under any Basic Document, Class B
Certificates owned by the Issuer, any other obligor upon the Class B
Certificates, the Depositor, the Seller, the Servicer or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed to be excluded from
the Certificate Balance except that, in determining whether the Indenture
Trustee and Owner Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent, or waiver, only Class B
Certificates that a Trustee Officer of the Indenture Trustee, if applicable,
and an Authorized Officer of the Owner Trustee with direct responsibility for
the administration of the Trust Agreement, if applicable, knows to be so owned
shall be so disregarded. Class B Certificates so owned that have been pledged
in good faith may be regarded as included in the Certificate Balance if the
pledgee establishes to the satisfaction of the Indenture Trustee or the Owner
Trustee, as applicable, the pledgee's right so to act with respect to such
Class B Certificates and that the pledgee is not the Issuer, any other obligor
upon the Certificates, the Depositor, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons.
"Certificate Distribution Account" shall mean the account established
and maintained as such pursuant to Section 4.1(c) of the Sale and Servicing
Agreement.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to the Trust Agreement filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
Appendix A-4
"Certificate Owner" shall mean, with respect to any Book-Entry
Certificate, the Person who is the beneficial owner of the Book-Entry
Certificate, as reflected on the books of the Clearing Agency or on the books
of a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Certificate Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.10 of the Trust Agreement and shall
initially be the Owner Trustee.
"Certificate Pool Factor" shall mean, as of the close of business on the
last day of a Collection Period, a seven-digit decimal figure calculated by
the Servicer and equal to the Certificate Balance of the Class B Certificates
(after giving effect to any reductions therein to be made on the immediately
following Payment Date) divided by the Initial Certificate Balance of the
Class B Certificates. Each Certificate Pool Factor will be 1.0000000 as of the
Closing Date; thereafter, each Certificate Pool Factor will decline to reflect
reductions in the Certificate Balance of the Class B Certificates.
"Certificate Register" and "Certificate Registrar" shall have the
respective meanings specified in Section 3.5 of the Trust Agreement.
"Certificateholder" or "holder of a Certificate" shall mean a Person in
whose name a Certificate is registered in the Certificate Register.
"Certificates" shall mean the Class B Certificates.
"Class" shall mean (i) a class of Notes, which may be the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes or the Class A-4 Notes or (ii)
the Class B Certificates.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Noteholder" shall mean a Noteholder.
"Class A Noteholders' Interest Carryover Shortfall" shall mean, for any
Payment Date, the excess of the Accrued Class A Note Interest for the
preceding Payment Date over the amount in respect of interest that is actually
paid to Noteholders of Class A Notes on such preceding Payment Date, plus
interest on the amount of interest due but not paid to Noteholders of Class A
Notes on the preceding Payment Date, to the extent permitted by law, at the
respective Note Interest Rates borne by such Class A Notes for the related
Interest Period.
"Class A Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, the aggregate interest accrued for the related Interest
Period on the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes at the respective Note Interest Rate for such Class in
accordance with its terms on the outstanding principal amount of the Notes of
each such Class on the immediately preceding Payment Date or the Closing Date,
as the case may be, after giving effect to all payments of principal to the
holders of the Notes of such Class on or prior to such preceding Payment Date.
Appendix A-5
"Class A-1 Final Scheduled Payment Date" shall mean the November 2005
Payment Date.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1
Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $256,000,000 aggregate initial
principal amount Class A-1 2.3365% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-1 to the
Indenture.
"Class A-1 Rate" shall mean 2.3365% per annum. Interest with respect to
the Class A-1 Notes shall be computed on the basis of actual days elapsed in
the applicable Interest Period divided by 360 for all purposes of the Basic
Documents.
"Class A-2 Final Scheduled Payment Date" shall mean the June 2007
Payment Date.
"Class A-2 Noteholder" shall mean the Person in whose name a Class A-2
Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $247,000,000 aggregate initial
principal amount Class A-2 2.79% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-2 to the
Indenture.
"Class A-2 Rate" shall mean 2.79% per annum. Interest with respect to
the Class A-2 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class A-3 Final Scheduled Payment Date" shall mean the February 2009
Payment Date.
"Class A-3 Noteholder" shall mean the Person in whose name a Class A-3
Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $385,000,000 aggregate initial
principal amount Class A-3 3.16% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-3 to the
Indenture.
"Class A-3 Rate" shall mean 3.16% per annum. Interest with respect to
the Class A-3 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class A-4 Final Scheduled Payment Date" shall mean the June 2011
Payment Date.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4
Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $220,170,000 aggregate initial
principal amount Class A-4 3.53% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-4 to the
Indenture.
Appendix A-6
"Class A-4 Rate" shall mean 3.53% per annum. Interest with respect to
the Class A-4 Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Class B Certificateholder" shall mean the Person in whose name a Class
B Certificate is registered in the Certificate Register.
"Class B Certificateholders' Interest Carryover Shortfall" shall mean,
with respect to any Payment Date, the excess of the Accrued Class B
Certificate Interest for the preceding Payment Date over the amount in respect
of interest that is actually paid to Class B Certificateholders on such
preceding Payment Date, plus thirty (30) days of interest on such excess, to
the extent permitted by law, at the Class B Rate.
"Class B Certificateholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, thirty (30) days of interest (or, in the case of
the first Payment Date, interest accrued from and including the Closing Date
to but excluding such Payment Date) at the Class B Rate on the Certificate
Balance on the immediately preceding Payment Date or the Closing Date, as the
case may be, after giving effect to all distributions allocable to the
reduction of the Certificate Balance made on or prior to such preceding
Payment Date.
"Class B Certificates" shall mean the $31,346,511 aggregate initial
principal balance Class B 4.48% Asset Backed Certificates evidencing the
beneficial interest of a Class B Certificateholder in the property of the
Trust, substantially in the form of Exhibit A to the Trust Agreement;
provided, however, that the Owner Trust Estate has been pledged to the
Indenture Trustee to secure payment of the Notes and that the rights of the
Class B Certificateholders to receive distributions on the Class B
Certificates are subordinated to the rights of the Noteholders as described in
the Sale and Servicing Agreement, the Indenture and the Trust Agreement.
"Class B Final Scheduled Payment Date" shall mean the June 2011 Payment
Date.
"Class B Rate" shall mean 4.48% per annum. Interest with respect to the
Class B Certificates shall be computed on the basis of a 360-day year
consisting of twelve 30-day months for all purposes of the Basic Documents.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean November 17, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause of
the Indenture.
Appendix A-7
"Collection Account" shall mean the account or accounts established and
maintained as such pursuant to Section 4.1(a) of the Sale and Servicing
Agreement.
"Collection Period" shall mean, with respect to the first Payment Date,
the period from and including the Cut-off Date to and including November 30,
2004 and, with respect to each subsequent Payment Date, the calendar month
preceding the calendar month in which the Payment Date occurs.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Commission" shall mean the Securities and Exchange Commission.
"Computer Tape" shall mean the computer tape generated by the Seller
which provides information relating to the Receivables and which was used by
the Seller in selecting the Receivables conveyed to the Trust hereunder.
"Corporate Trust Office" shall mean, (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
One Xxxxxx Square, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 or
at such other address as the Owner Trustee may designate from time to time by
notice to the Certificateholders and the Depositor, or the principal corporate
trust office of any successor Owner Trustee (the address of which the
successor Owner Trustee will notify the Certificateholders and the Depositor);
and (ii) with respect to the Indenture Trustee, the principal corporate trust
office of the Indenture Trustee located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services/Global
Debt--USAA 2004-3 or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Issuer, or
the principal corporate trust office of any successor Indenture Trustee (the
address of which the successor Indenture Trustee will notify the Noteholders
and the Issuer).
"Covered Plan" shall mean 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
"Cut-off Date" shall mean November 1, 2004.
"Default" shall mean any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable (i) that the Servicer
determines is unlikely to be paid in full or (ii) with respect to which at
least 5% of a Scheduled Payment is 120 or more days delinquent as of the end
of a calendar month.
"Definitive Certificates" shall have the meaning specified in Section
3.13 of the Trust Agreement.
"Definitive Notes" shall have the meaning specified in Section 2.11 of
the Indenture.
Appendix A-8
"Delinquency Ratio" shall mean, for any Collection Period, the ratio,
expressed as a percentage, of (a) the Principal Balance of all outstanding
Receivables (other than Purchased Receivables and Defaulted Receivables) that
are 60 or more days delinquent as of the end of such Collection Period,
determined in accordance with the Servicer's customary practices, plus
Receivables as to which the related Financial Vehicle has been repossessed but
not sold, to (b) the Pool Balance as of the last day of such Collection
Period.
"Depositor" shall mean USAA Acceptance, LLC, a Delaware limited
liability company.
"Determination Date" shall mean, with respect to any Collection Period,
the second Business Day immediately preceding the Payment Date following such
Collection Period.
"Eligible Deposit Account" shall mean either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the U.S. or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" shall mean either (i) the corporate trust
department of the Indenture Trustee or the Owner Trustee, as applicable; or
(ii) a depository institution organized under the laws of the U.S. or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1) which has either (A) a long-term unsecured debt rating of
at least "AA-" by Standard & Poor's and "Baa3" by Xxxxx'x or (B) a short-term
unsecured debt rating or certificate of deposit rating of "A-1+" by Standard &
Poor' and "Prime-1" by Xxxxx'x and (2) whose deposits are insured by the FDIC.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of
the Indenture.
"Event of Servicing Termination" shall mean an event specified in
Section 7.1 of the Sale and Servicing Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Executive Officer" shall mean, with respect to any corporation or
depository institution, the Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, President, Executive Vice President, any Vice
President, the Secretary or the Treasurer of such corporation and, with
respect to any partnership, any general partner thereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Final Scheduled Payment Date" shall mean, with respect to (i) the Class
A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class A-2
Notes, the Class A-2 Final Scheduled Payment Date, (iii) the Class A-3 Notes,
the Class A-3 Final Scheduled Payment
Appendix A-9
Date, (iv) the Class A-4 Notes, the Class A-4 Final Scheduled Payment Date,
and (v) the Class B Certificates, the Class B Final Scheduled Payment Date.
"Financed Vehicle" shall mean a new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to xxxxx x
xxxx upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of the Collateral and all other monies payable thereunder, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of November 17, 2004, by
and between the Trust and the Indenture Trustee.
"Indenture Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Indenture Trustee" shall mean JPMorgan Chase Bank, National
Association, a banking association organized under the laws of the United
States, not in its individual capacity but solely as Indenture Trustee under
the Indenture, or any successor Indenture Trustee under the Indenture.
"Independent" shall mean, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller
or any Affiliate of any of the foregoing Persons and (c) is not connected with
the Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser, firm of certified public
accountants or other expert appointed by an Issuer Order and approved by the
Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state
Appendix A-10
that the signer has read the definition of "Independent" in the Indenture and
that the signer is Independent within the meaning thereof.
"Initial Certificate Balance" shall mean $31,346,511.
"Initial Pool Balance" shall mean $1,139,516,511.60.
"Insolvency Event" shall mean, with respect to any Person, (i) the
making of a general assignment for the benefit of creditors, (ii) the filing
of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in (vii) below,
(vi) seeking, consent to or acquiescing in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of the
assets of such Person or (vii) the failure to obtain dismissal within 60 days
of the commencement of any proceeding against such Person seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"Interest Period" shall mean, with respect to any Payment Date (i) with
respect to the Class A-1 Notes, from and including the Closing Date (in the
case of the first Payment Date) or from and including the most recent Payment
Date on which interest has been paid to but excluding the following Payment
Date and (ii) with respect to each Class of Notes (other than the Class A-1
Notes) and the Certificates, from and including the Closing Date (in the case
of the first Payment Date) or from and including the 15th day of the calendar
month preceding each Payment Date to but excluding the 15th day of the
calendar month of such Payment Date.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the Trust unless a successor replaces it and,
thereafter, shall mean the successor.
"Issuer Order" and "Issuer Request" shall mean a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Lien" shall mean a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than, in respect of a Receivable, tax liens,
mechanics' liens, and any liens which attach to the respective Receivable by
operation of law.
"Liquidation Proceeds" shall mean with respect to any Receivable (a)
insurance proceeds received by the Servicer and (b) monies collected by the
Servicer on a Defaulted Receivable from whatever source, including but not
limited to proceeds of Financed Vehicles after repossession, net of any
payments required by law to be remitted to the Obligor.
Appendix A-11
"Monthly Remittance Condition" shall mean either (a) the Servicer
obtains a short-term certificate of deposit rating of the Servicer from
Standard & Poor's and Moody's of "A-1+" and "Prime-1," respectively, or (b)
the Servicer provides the Indenture Trustee with a letter from each Rating
Agency to the effect that the current ratings assigned to the Securities by
such Rating Agency will not be adversely affected by the remittance of
Collections on a monthly, rather than a daily, basis.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Loss Ratio" shall mean, for any Collection Period, the ratio,
expressed as an annualized percentage, of (a) Realized Losses minus Recoveries
for such Collection Period, to (b) the average of the Pool Balances on the
first day of such Collection Period and the last day of such Collection
Period.
"Note Depository Agreement" shall mean collectively (i) the Letter of
Representations, dated as of November 17, 2004 by and among the Issuer,
JPMorgan Chase Bank, National Association, as agent and The Depository Trust
Company regarding the Notes and (ii) the Letter of Representations, dated as
of November 17, 2004 by and among the Issuer, JPMorgan Chase Bank, National
Association, as agent and The Depository Trust Company regarding the
Certificates.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate or the Class A-4 Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Issuer to make payments
to and distributions from the Collection Account (including the Principal
Distribution Account), including payment of principal of or interest on the
Notes on behalf of the Issuer.
"Note Pool Factor" shall mean, with respect to each Class of Notes as of
the close of business on the last day of a Collection Period, a seven-digit
decimal figure calculated by the Servicer and equal to the outstanding
principal balance of such Class of Notes (after giving effect to any
reductions thereof to be made on the immediately following Payment Date)
divided by the original outstanding principal balance of such Class of Notes.
The Note Pool Factor will be 1.0000000 as of the Closing Date; thereafter, the
Note Pool Factor will decline to reflect reductions in the outstanding
principal amount of such Class of Notes.
"Note Register" and "Note Registrar" shall have the respective meanings
specified in Section 2.5 of the Indenture.
Appendix A-12
"Noteholder" or "holder of a Note" shall mean the Person in whose name a
Note is registered on the Note Register.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers of
the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Officer's Certificate" shall mean (i) with respect to the Trust, a
certificate signed by any Authorized Officer of the Trust and (ii) with
respect to the Depositor, the Seller or the Servicer, a certificate signed by
the chairman of the board, the president, any executive or senior vice
president, any vice president, the treasurer or the controller of the
Depositor or the Servicer, as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel which
counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or the
Rating Agencies, as applicable.
"Optional Purchase Percentage" shall mean 10%.
"Outstanding" shall mean with respect to the Securities, as of the date
of determination, all Securities theretofore authenticated and delivered under
the Indenture or the Trust Agreement, as applicable, except:
(a) Securities theretofore (i) cancelled by the Note
Registrar or the Certificate Registrar, as applicable, or (ii)
delivered to the Note Registrar or the Certificate Registrar, as
applicable, for cancellation;
(b) Securities or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with
(i)in the case of the Notes, the Indenture Trustee or any Note
Paying Agent in trust for the Noteholders of such Notes (provided,
however, that if such Notes are to be prepaid, notice of such
prepayment has been duly given pursuant to the Indenture or
provision for such notice has been made, satisfactory to the
Indenture Trustee) or (ii) in the case of the Certificates, the
Owner Trustee or any Certificate Paying Agent in trust for the
Certificateholders of such Certificates (provided, however, that
if such Certificates are to be prepaid, notice of such prepayment
has been duly given pursuant to the Trust Agreement or provision
for such notice has been made, satisfactory to the Owner Trustee);
and
(c) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to the
Indenture or the Trust Agreement, as applicable, unless proof
satisfactory to the Indenture Trustee or the Owner Trustee, as
applicable, is presented that any such Securities are held by a
protected purchaser;
provided, that in determining whether the holders of Notes or Certificates
evidencing the requisite principal amount of the Notes Outstanding or
Certificates Outstanding have given any
Appendix A-13
request, demand, authorization, direction, notice, consent, or waiver under
any Basic Document, Securities owned by the Issuer, any other obligor upon the
Securities, the Depositor, the Seller, the Servicer or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee or Owner Trustee, as
applicable, shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only (i) Notes that a
Responsible Officer of the Indenture Trustee knows to be so owned and (ii)
Certificates that a Responsible Officer of the Owner Trustee knows to be so
owned, shall be so disregarded; provided, however, if the Issuer, any other
obligor upon the Securities, the Depositor, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons owns an entire Class of Securities,
such Securities shall be deemed to be Outstanding. Notes owned by the Issuer,
any other obligor upon the Notes, the Depositor, the Seller, the Servicer or
any Affiliate of any of the foregoing Persons that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not the Issuer, any other
obligor upon the Notes, the Depositor, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons. Certificates owned by the Issuer,
any other obligor upon the Certificates, the Seller, the Servicer or any
Affiliate of any of the foregoing Persons that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Owner Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Issuer, any other obligor upon
the Certificates, the Depositor, the Seller, the Servicer or any Affiliate of
any of the foregoing Persons.
"Outstanding Advances" on the Receivables shall mean the sum, as of the
close of business on the last day of a Collection Period, of all Advances as
reduced as provided in Section 4.4(a) of the Sale and Servicing Agreement.
"Owner Trustee" shall mean Wachovia Bank of Delaware, National
Association, a national banking association, not in its individual capacity
but solely as Owner Trustee under the Trust Agreement, or any successor Owner
Trustee under the Trust Agreement.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement.
"Payment Date" shall mean the fifteenth (15th) day of each calendar
month or, if such day is not a Business Day, the next succeeding Business Day.
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct non-callable obligations of, and obligations
fully guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company
incorporated under the laws of the United States of America or any
state thereof (or any domestic branch of a foreign bank)
Appendix A-14
and subject to supervision and examination by federal or State
banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to
invest therein, the commercial paper or other short-term unsecured
debt obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository
institution or trust company) thereof shall have a credit rating
from each of the Rating Agencies in the highest investment
category granted thereby;
(c) commercial paper having, at the time of the investment
or contractual commitment to invest therein, a rating from each of
the Rating Agencies in the highest investment category granted
thereby;
(d) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category
granted thereby (including funds for which the Indenture Trustee
or the Owner Trustee or any of their respective Affiliates is
investment manager or advisor);
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct non-callable obligation of, or fully guaranteed by,
the United States of America or any agency or instrumentality
thereof the obligations of which are backed by the full faith and
credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as
principal) described in clause (b); and
(g) any other investment with respect to which the Issuer or
the Servicer has received written notification from the Rating
Agencies that the acquisition of such investment as a Permitted
Investment will not result in a withdrawal or downgrading of the
ratings on the Notes or the Certificates.
"Person" shall mean any individual, corporation, limited liability
company, estate, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Plan" means an employee benefit plan (as defined in section 3(3) of
ERISA) that is subject to Title I of ERISA, a plan (as defined in section
4975(e)(1) of the Code) and any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity or otherwise.
"Pool Balance" shall mean on any date of determination, the aggregate
outstanding Principal Balance of the Receivables (exclusive of Purchased
Receivables and Defaulted Receivables) as of such date of determination.
"Pool Factor" as of the last day of a Collection Period shall mean a
seven-digit decimal figure equal to the Pool Balance at that time divided by
the Initial Pool Balance.
Appendix A-15
"Predecessor Note" shall mean, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any
Note authenticated and delivered under Section 2.6 of the Indenture in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean (i) with respect to a prepayment of the
Certificates pursuant to Section 8.2(a) of the Trust Agreement or a
distribution to Certificateholders pursuant to Section 8.1(c) of the Trust
Agreement, the Payment Date specified by the Owner Trustee pursuant to said
Section 8.2(a) or 8.1(c), as applicable, and (ii) with respect to a prepayment
of the Notes pursuant to Section 10.1(a) of the Indenture, the Payment Date
specified by the Servicer pursuant to Section 10.1(a) or (b) of the Indenture,
as applicable.
"Prepayment Price" shall mean (i) in the case of the Certificates, an
amount equal to the Certificate Balance plus accrued and unpaid interest
thereon at the applicable Class B Rate plus interest on any overdue interest
at the applicable Class B Rate (to the extent lawful) to but excluding the
Prepayment Date and (ii) in the case of a Class of Notes to be prepaid, an
amount equal to the unpaid principal amount of such Class of Notes plus
accrued and unpaid interest thereon at the applicable Note Interest Rate plus
interest on any overdue interest at the applicable Note Interest Rate (to the
extent lawful) to but excluding the Prepayment Date.
"Priority Note Principal Payment" shall mean, for each Payment Date, a
payment of principal equal to the excess, if any, of the aggregate principal
amount of the Class A Notes (before giving effect to any payments on that
Payment Date) over the Pool Balance at the end of the related Collection
Period.
"Principal Balance" of a Receivable, as of any date of determination,
shall mean the Amount Financed minus that portion of all payments actually
received on or prior to such date allocable to principal.
"Principal Distribution Account" shall mean the administrative
sub-account of the Collection Account established and maintained as such
pursuant to Section 4.1(b) of the Sale and Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Projected Weighted Average Life" shall mean, with respect to (a) the
Class A-1 Notes, 0.34, (b) the Class A-2 Notes, 1.05, (c) the Class A-3 Notes,
2.00, (d) the Class A-4 Notes, 3.13 and (e) the Class B Certificates, 3.40.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Prospectus Supplement" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Amount" with respect to a Purchased Receivable shall mean the
sum, as of the last day of the related Collection Period, of the Principal
Balance thereof plus the accrued
Appendix A-16
interest thereon at the weighted average of the Note Interest Rates and the
Class B Rate through the end of the related Collection Period.
"Purchased Receivable" shall mean a Receivable purchased as of the close
of business on the last day of the respective Collection Period by the
Servicer pursuant to Section 3.7 of the Sale and Servicing Agreement, by the
Seller pursuant to Section 2.3 of the Sale and Servicing Agreement or by the
Servicer pursuant to Section 8.1 of the Sale and Servicing Agreement.
"Rating Agency" shall mean each of the nationally recognized statistical
rating organizations designated by the Depositor to provide a rating on the
Notes or the Certificates which is then rating such Notes or Certificates. If
no such organization or successor is any longer in existence, "Rating Agency"
shall be a nationally recognized statistical rating organization or other
comparable Person designated by the Depositor, notice of which designation
shall be given to the Indenture Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action, that
each of the Rating Agencies shall have notified the Servicer, the Depositor,
the Owner Trustee and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current ratings of the
Notes or the Certificates.
"Realized Losses" shall mean, for any Collection Period and for each
Receivable that became a Defaulted Receivable during such Collection Period,
the excess, for each such Receivable, of (i) the Principal Balance of such
Receivable over (ii) Liquidation Proceeds received with respect to such
Receivable during such Collection Period, to the extent allocable to
principal.
"Receivable" shall mean a motor vehicle installment loan contract listed
on Schedule A to the Receivables Purchase Agreement and all proceeds thereof
and payments thereunder, which Receivable shall not have been released by the
Indenture Trustee and the Owner Trustee from the Trust.
"Receivable Files" shall mean the documents specified in Section 2.4 of
the Sale and Servicing Agreement.
"Receivables Purchase Agreement" shall mean the Receivables Purchase
Agreement, dated as of November 1, 2004, by and between the Bank, as seller,
and the Depositor, as purchaser.
"Record Date" shall mean, with respect to any Payment Date or Prepayment
Date and any Book-Entry Security, the close of business on the day prior to
such Payment Date or Prepayment Date or, with respect to any Definitive Note
or Definitive Certificate, the last day of the month preceding the month in
which such Payment Date or Prepayment Date occurs.
"Recoveries" shall mean, with respect to any Collection Period, all
amounts received by the Servicer with respect to any Defaulted Receivable
during any Collection Period following the Collection Period in which such
Receivable became a Defaulted Receivable, net of any fees, costs and expenses
incurred by the Servicer in connection with the collection of such Receivable
and any payments required by law to be remitted to the Obligor.
Appendix A-17
"Registered Noteholder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Registration Statement" shall mean Registration Statement No.
333-112241 filed by the Depositor with the Securities and Exchange Commission
in the form in which it became effective on February 9, 2004.
"Regular Principal Distribution Amount" shall mean, with respect to any
Payment Date, an amount equal to the sum of (i) the Collections on the
Receivables received during the related Collection Period and allocable to
principal and (ii) the aggregate Principal Balance (net of Liquidation
Proceeds received during the related Collection Period applied to principal)
of all Receivables that became designated as Defaulted Receivables in such
Collection Period; provided, however, that the Regular Principal Distribution
Amount shall not exceed the sum of the aggregate outstanding principal amount
of all of the Notes and the Certificate Balance on such Payment Date.
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
"Representatives" shall mean Deutsche Bank Securities Inc. and Wachovia
Capital Markets, LLC, as representatives of the several Underwriters.
"Repurchase Event" shall have the meaning specified in Section 7.02 of
the Receivables Purchase Agreement.
"Required Rating" shall mean a rating on (i) short-term unsecured debt
obligations of "Prime-1" by Moody's and (ii) short-term unsecured debt
obligations of "A-1+" by Standard & Poor's; and any requirement that
short-term unsecured debt obligations have the "Required Rating" shall mean
that such short-term unsecured debt obligations have the foregoing required
ratings from each of such Rating Agencies.
"Reserve Account" shall mean the account established and maintained as
such pursuant to Section 4.7(a) of the Sale and Servicing Agreement.
"Reserve Account Property" shall have the meaning specified in Section
4.7(a) of the Sale and Servicing Agreement.
"Reserve Account Excess Amount" shall mean, with respect to any Payment
Date, an amount equal to the excess, if any, of (i) the amount of cash or
other immediately available funds in the Reserve Account on such Payment Date
(prior to giving effect to any withdrawals therefrom relating to such Payment
Date) over (ii) the Specified Reserve Balance with respect to such Payment
Date.
"Reserve Initial Deposit" shall mean, $5,697,582.56.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of November 1, 2004, by and between the Trust, as issuer,
the Depositor, and the Bank, as seller and servicer.
Appendix A-18
"Schedule of Receivables" shall mean the list of Receivables attached as
Schedule A to the Receivables Purchase Agreement, the Sale and Servicing
Agreement and the Indenture (which Schedules may be in the form of microfiche,
disk or other means acceptable to the Indenture Trustee).
"Scheduled Payment" shall mean, for any Collection Period for any
Receivable, the amount indicated in such Receivable as required to be paid by
the Obligor in such Collection Period (without giving effect to deferments of
payments pursuant to Section 3.2 of the Sale and Servicing Agreement or any
rescheduling in any insolvency or similar proceedings).
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities" shall mean the Notes and the Certificates, collectively.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholders" shall mean the Noteholders and the Certificateholders,
collectively.
"Seller" shall mean the Bank as the seller of the Receivables under the
Receivables Purchase Agreement and each successor to the Bank.
"Servicer" shall mean the Bank as the servicer of the Receivables under
the Sale and Servicing Agreement, and each successor to the Bank (in the same
capacity) pursuant to Section 6.3 of the Sale and Servicing Agreement.
"Servicer's Certificate" shall mean a certificate completed and executed
by the Servicer by the chairman of the board, the president, any executive
vice president, any vice president, the treasurer, any assistant treasurer,
the controller, or any assistant controller of the Servicer pursuant to
Section 3.9 of the Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to a Collection Period, the fee
payable to the Servicer for services rendered during such Collection Period,
which shall be equal to one-twelfth of the Servicing Fee Rate multiplied by
the Pool Balance as of the first day of the Collection Period.
"Servicing Fee Rate" shall mean 0.50% per annum.
"Similar Laws" shall mean federal, state or local laws that impose
requirements similar to ERISA or the Code.
"Simple Interest Method" shall mean the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the amount accrued from the
date of the preceding payment to the date of the current payment.
"Specified Reserve Balance" shall mean for a Payment Date the lesser of
(a) $5,697,582.56 (0.50% of the principal balance of the Receivables as of the
Cut-off Date) and (b) the sum of the aggregate principal balance of the
Outstanding Notes and the principal balance
Appendix A-19
of the Certificates as of the current Payment Date. However, the Specified
Reserve Balance will be calculated using a percentage of 0.75% in (a) above
for any Payment Date for which the Average Net Loss Ratio exceeds 1.25% or the
Average Delinquency Ratio exceeds 1.25% (the "specified trigger level"). Also,
that higher percentage will remain in effect until each of the Average Net
Loss Ratio and the Average Delinquency Ratio is equal to or less than 1.25%
for at least six consecutive Payment Dates. In no event will the Specified
Reserve Balance for any Payment Date exceed the aggregate Outstanding
principal balance of the Receivables at the end of the related Collection
Period. The Specified Reserve Balance may be reduced to a lesser amount as
determined by the Depositor, if each of Moody's and Standard & Poor's shall
have confirmed in writing to the Indenture Trustee that such action will not
result in a withdrawal or reduction in any of its ratings of the Securities.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"State" shall mean any state or commonwealth of the United States of
America, or the District of Columbia.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code ss. 3801 et seq., as amended.
"Successor Servicer" shall mean an institution appointed as successor
Servicer pursuant to Section 7.2 of the Sale and Servicing Agreement.
"Supplemental Servicing Fee" shall mean the fee payable to the Servicer
for certain services rendered during the respective Collection Period,
determined pursuant to and defined in Section 3.8 of the Sale and Servicing
Agreement.
"Total Required Payment" shall mean, with respect to any Payment Date,
the sum of the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods, the Accrued Class A Note Interest, the Accrued Class B
Certificate Interest and the Regular Principal Distribution Amount; provided,
however, that on any Final Scheduled Payment Date the amount required to be
paid pursuant to Section 4.6(c)(vi) of the Sale and Servicing Agreement shall
be included in the Total Required Payment; provided, further, that following
the occurrence and during the continuation of an Event of Default, on any
Payment Date until the Payment Date on which the outstanding principal amount
of all the Securities has been paid in full, the Total Required Payment shall
mean the sum of the fees, expenses and indemnification of the Indenture
Trustee and the Owner Trustee, the Servicing Fee and all unpaid Servicing Fees
from prior Collection Periods, the Accrued Class A Note Interest, the Accrued
Class B Certificate Interest and the amount necessary to reduce the
outstanding principal amount of all the Securities to zero.
"Transfer Date" shall mean the Closing Date.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
Appendix A-20
"Trust" shall mean USAA Auto Owner Trust 2004-3, a Delaware statutory
trust governed by the Trust Agreement.
"Trust Accounts" shall have the meaning specified in Section 4.7(a) of
the Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement of
the Trust dated as of November 17, 2004, by and between the Depositor and the
Owner Trustee, as amended and/or restated from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, collectively, (i) the Receivables; (ii)
monies received thereunder on or after the Cut-off Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles;
(iv) rights to receive proceeds with respect to the Receivables from claims on
any 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) the Trust Accounts and all amounts,
securities, investments, investment property and other property deposited in
or credited to any of the foregoing, all security entitlements relating to the
foregoing and all proceeds thereof; (vii) the Receivables Purchase Agreement;
(viii) payments and proceeds with respect to the Receivables held by the
Servicer; (ix) 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); (x) 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 (xi) 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.
"Trustee Officer" shall mean, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject, in each case having direct responsibility for the
administration of the Indenture and the other Basic Documents on behalf of the
Indenture Trustee and, with respect to the Owner Trustee, any officer within
the Corporate Trust Office of the Owner Trustee with direct responsibility for
the administration of the Trust Agreement and the other Basic Documents on
behalf of the Owner Trustee.
"UCC" shall mean the Uniform Commercial Code as in effect in any
relevant jurisdiction.
Appendix A-21
"Underwriters" shall mean the underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
November 9, 2004 among the Seller, the Depositor and the Representatives.
"Underwritten Securities" shall mean the Notes.
Appendix A-22
