EXHIBIT 4.2
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AMENDED AND RESTATED
TRUST AGREEMENT
BETWEEN
FIRST SECURITY BANK, N.A.
SELLER
AND
__________________________ , AS
OWNER TRUSTEE
DATED AS OF _______ __, 20__
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................ 1
1.1 Definitions..................................................... 1
ARTICLE II ORGANIZATION............................................... 1
2.1 Name............................................................ 1
2.2 Office.......................................................... 1
2.3 Purposes and Powers............................................. 1
2.4 Appointment of Owner Trustee.................................... 2
2.5 Initial Capital Contribution of Owner Trust Estate.............. 2
2.6 Declaration of Trust............................................ 2
2.7 Liability of the Certificateholders............................. 3
2.8 Title to Trust Property......................................... 3
2.9 Situs of Trust.................................................. 3
2.10 Representations and Warranties of the Seller.................... 3
2.11 Amended and Restated Trust Agreement............................ 4
ARTICLE III THE CERTIFICATES........................................... 4
3.1 Initial Certificate Ownership................................... 4
3.2 Form of the Certificates........................................ 5
3.3 Execution, Authentication and Delivery.......................... 5
3.4 Registration; Registration of Transfer and Exchange of
Certificates.................................................... 5
3.5 Mutilated, Destroyed, Lost or Stolen Certificates............... 7
3.6 Persons Deemed Certificateholders............................... 7
3.7 Access to List of Certificateholders' Names and Addresses....... 8
3.8 Maintenance of Corporate Trust Office........................... 8
3.9 Appointment of Paying Agent..................................... 8
3.10 Seller as Certificateholder..................................... 9
ARTICLE IV ACTIONS BY OWNER TRUSTEE................................... 9
4.1 Prior Notice to Certificateholders with Respect to Certain Matters 9
4.2 Action by Certificateholders with Respect to Certain Matters.... 10
4.3 Action by Certificateholders with Respect to Bankruptcy......... 10
4.4 Restrictions on Certificateholders' Power....................... 10
4.5 Majority Control................................................ 10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................. 10
5.1 Establishment of Certificate Distribution Account............... 10
5.2 Application of Trust Funds...................................... 11
5.3 Method of Payment............................................... 12
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5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others....................................... 12
5.5 Signature on Returns............................................. 12
ARTICLE VI THE OWNER TRUSTEE........................................... 12
6.1 Duties of Owner Trustee.......................................... 12
6.2 Rights of Owner Trustee.......................................... 13
6.3 Acceptance of Trusts and Duties.................................. 13
6.4 Action upon Instruction by Certificateholders.................... 15
6.5 Furnishing of Documents.......................................... 16
6.6 Representations and Warranties of Owner Trustee.................. 16
6.7 Reliance; Advice of Counsel...................................... 17
6.8 Owner Trustee May Own Certificates and Notes..................... 17
6.9 Compensation and Indemnity....................................... 17
6.10 Replacement of Owner Trustee..................................... 19
6.11 Merger or Consolidation of Owner Trustee......................... 20
6.12 Appointment of Co-Trustee or Separate Trustee.................... 20
6.13 Eligibility Requirements for Owner Trustee....................... 21
ARTICLE VII TERMINATION OF TRUST AGREEMENT.............................. 22
7.1 Termination of Trust Agreement................................... 22
ARTICLE VIII AMENDMENTS.................................................. 23
8.1 Amendments Without Consent of Certificateholders or Noteholders.. 23
8.2 Amendments With Consent of Certificateholders and Noteholders.... 23
8.3 Form of Amendments............................................... 23
ARTICLE IX MISCELLANEOUS............................................... 24
9.1 No Legal Title to Owner Trust Estate............................. 24
9.2 Limitations on Rights of Others.................................. 24
9.3 Notices.......................................................... 25
9.4 Severability..................................................... 25
9.5 Counterparts..................................................... 25
9.6 Successors and Assigns........................................... 25
9.7 No Recourse...................................................... 25
9.8 Headings......................................................... 25
9.9 Governing Law.................................................... 26
9.10 Administrator.................................................... 26
9.11 No Petition...................................................... 26
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________ __,
20___ (the "Agreement"), is being entered into by and between First Security
Bank, N.A., a national banking association, as Seller, and ________________, a
________________________, as Owner Trustee.
WHEREAS, the Seller and the Owner Trustee entered into a certain Trust
Agreement dated ________ __, 20___ which contemplated this Amended and Restated
Trust Agreement;
NOW, THEREFORE, the Seller and the Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Certain capitalized terms used in this
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Agreement shall have the respective meanings assigned to them in Section 1.1 of
the Sale and Servicing Agreement of even date herewith, by and among the Seller,
the Servicer and the Trust (as it may be amended and supplemented from time to
time, the "Sale and Servicing Agreement"). All references herein to "the
Agreement" or "this Agreement" are to this Trust Agreement as it may be amended
and supplemented from time to time, the Exhibits hereto and the capitalized
terms used herein which are defined in such Section 1.1, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
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"First Security Auto Owner Trust 20__ - ___," in which name the Owner Trustee
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of
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the Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Seller.
SECTION 2.3 Purposes and Powers. (a) The Trust shall have the
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power and authority and is authorized to engage in the following activities:
(i) to acquire, manage and hold the Receivables and the other
assets to be transferred to or held by the Trust as contemplated by the
Sale and Servicing Agreement;
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(ii) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, to sell, transfer or exchange the
Notes and to transfer and exchange the Certificates;
(iii) to acquire property and assets from the Seller pursuant to
the Sale and Servicing Agreement, to make payments or distributions on the
Securities to the Securityholders, to make deposits into and withdrawals
from the Reserve Account and other accounts established pursuant to the
Basic Documents and to pay the organizational, start-up and transactional
expenses of the Trust;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Collateral pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of this
Agreement and the Sale and Servicing Agreement any portion of the Trust
Estate released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(v) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable, desirable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith;
and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of payments or distributions to the
Securityholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby
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appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate.
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The Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Seller
shall pay 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.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby
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declares that it shall hold the Owner Trust Estate in trust upon and subject to
the conditions and obligations set forth
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herein and in the Sale and Servicing Agreement for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents to which it is a party. It is the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Statute, that
this Agreement constitute the governing instrument of such business trust and
that the Certificates represent the equity interests therein. The rights of the
Certificateholders shall be determined as set forth herein and in the Business
Trust Statute and the relationship between the parties hereto created by this
Agreement shall not constitute indebtedness for any purpose. It is the intention
of the parties hereto that, solely for purposes of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon, measured
by, or based upon gross or net income, the Trust shall be treated as a division
or branch of the Seller. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a division or branch of the Seller for such tax
purposes. Furthermore, the parties agree that for such tax purposes the Notes
will be treated as indebtedness. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth in this Agreement,
the Sale and Servicing Agreement and the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Certificateholders. The beneficial
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owners of the Trust shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the Delaware General Corporation Law.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner
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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 located and
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administered in the State of Delaware or Utah. 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 Delaware; provided, however, that nothing herein shall
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restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments shall be received by the Trust only in Delaware
or New York, and payments and distributions shall be made by the Trust only from
Delaware or New York. The only office of the Trust shall be the Corporate Trust
Office in Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The
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Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with power and authority to own its properties and to
conduct its business as such properties are
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presently owned and such business is presently conducted and had at all
relevant times, and now has, power, authority and legal right to acquire
and own the Receivables.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver
this Agreement and to carry out its terms, the Seller has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust as part of the Trust and the Seller has duly
authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement have
been duly authorized by the Seller by all necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions of
or constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party or
by which it is bound, or 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 violate any law or, to the Seller's knowledge, any order, rule or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(e) This Agreement, when duly executed and delivered, shall
constitute a legal, valid and binding obligation of the Seller enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge,
investigations pending or, to the Seller's knowledge, threatened before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Seller or its
properties (i) asserting the invalidity of this Agreement or any
Certificates issued pursuant hereto, (ii) seeking to prevent the issuance
of such Certificates or the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or ruling
that might materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, such
Certificates or this Agreement.
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SECTION 2.11 Amended and Restated Trust Agreement. This Agreement
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amends and restates in its entirety the Trust Agreement dated as of _______,
20___ between the Seller and the Owner Trustee.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of
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the Trust by the contribution by the Seller pursuant to Section 2.5 and until
the issuance of the Certificates, the Seller shall be the sole beneficiary of
the Trust.
SECTION 3.2 Form of the Certificates.
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(a) The Certificates shall be substantially in the form set forth in
Exhibit A. The Certificates shall represent the entire beneficial interest in
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the Trust. The Certificates shall be executed on behalf of the Trust 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 Trust, shall be, when authenticated pursuant to Section 3.3,
validly issued and entitled to the benefits of the 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.
(b) The Certificates shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) all as determined by the officers executing such Certificates,
as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form and
shall be in definitive form only. The terms of the Certificates set forth in
Exhibit A shall form part of this Agreement.
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SECTION 3.3 Execution, Authentication and Delivery. On the
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Closing Date, concurrently with the sale of the Receivables and other assets to
the Trust pursuant to the Sale and Servicing Agreement, the Owner Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Seller, signed by its chairman of
the board, its president or any vice president, without further corporate action
by the Seller, in authorized denominations. No Certificate shall entitle its
holder to any benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
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or the Administrator, as the Owner Trustee's Authenticating Agent, or an agent
of the Owner Trustee, by manual or facsimile signature. Such authentication
shall constitute conclusive evidence
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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; Registration of Transfer and Exchange of
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Certificates.
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(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 Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein. The Owner Trustee shall be the
initial Certificate Registrar. Upon any resignation of a Certificate Registrar,
the Owner Trustee shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Certificate Registrar.
(b) Certificateholders may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner their rights to and
interests in the Certificates, provided that the following conditions are
satisfied: (i) the transferee provides written verification that such action
will not result in a reduction or withdrawal of the rating of any class of Notes
then outstanding, (ii) the Certificateholders provide to the Owner Trustee and
the Indenture Trustee an opinion of independent counsel that such action will
not cause the Trust to be treated as an association (or publicly traded
partnership) taxable as a corporation for Federal income tax purposes, (iii)
such transferee or assignee agrees in writing to take positions for tax purposes
consistent with the tax positions agreed to be taken by the Certificateholders
and (iv) the Trust certificates may not be Transferred unless (A) the transferee
provides the Owner Trustee (and the Certificate Registrar if not the Owner
Trustee) with an opinion of counsel satisfactory to the Owner Trustee stating
that such transfer is exempt from registration under applicable state and
federal securities laws, will not cause the Trust to be an "Investment Company"
or under the "control" of an "Investment Company" within the meaning of the
Investment Company Act and otherwise complies with the restrictions on Transfer
contained in this Agreement, and (B) the transferee certifies to the Trustee
that it is not (x) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title I of ERISA; (y) a plan
described in Section 4975(e)(1) of the Code; or (z) any entity whose underlying
assets include plan assets by reason of a plan's investment in the Trust (each a
"Benefit Plan"). The Trustee shall have no obligation to determine whether or
not a transferee of a Trust Certificate is or is not a Benefit Plan.
(c) Subject to Section 3.4(b), upon surrender for registration of
transfer of any Certificate at the office or agency maintained pursuant to
Section 3.8, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) At the option of a Holder, Certificates may be exchanged for
other Certificates of a like aggregate percentage interest upon surrender of the
Certificates to be exchanged at the Corporate Trust Office maintained pursuant
to Section 3.8. Whenever any Certificates are so surrendered for exchange, the
Owner Trustee shall execute on behalf of the Trust, authenticate and
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deliver one or more Certificates dated the date of authentication by the Owner
Trustee or any authenticating agent. Such Certificates shall be delivered to the
Holder making the exchange.
(e) 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 Holder or his attorney duly authorized in writing and such other
documents and instruments as may be required by Section 3.4(b) or Section 9.10.
Each Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently destroyed or otherwise disposed of by the Owner
Trustee or Certificate Registrar in accordance with its customary practice.
(f) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates,
including any other expenses of the Owner Trustee or the Certificate Registrar.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.
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(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a replacement Certificate in authorized denominations of a
like amount; provided, however, that if any such destroyed, lost or stolen
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Certificate, but not a mutilated Certificate, shall have become or within seven
days shall be due and payable, then instead of issuing a replacement Certificate
the Owner Trustee may pay such destroyed, lost or stolen Certificate when so due
or payable.
(b) If, after the delivery of a replacement Certificate in respect of
a destroyed, lost or stolen Certificate pursuant to subsection 3.5(a), a bona
fide purchaser of the original Certificate in lieu of which such replacement
Certificate was issued presents for payment such original Certificate, the Owner
Trustee shall be entitled to recover such replacement Certificate (and any
distributions made with respect thereto) from the Person to whom it was
delivered or any Person taking such replacement Certificate from such Person to
whom such replacement Certificate was delivered or any assignee of such Person,
except a protected purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement Certificate
under this Section 3.5, the Owner Trustee may require the payment by the Holder
of such Certificate of a sum
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sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
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presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
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Addresses. The Owner Trustee shall furnish or cause to be furnished to the
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Servicer and the Seller, within 15 days after receipt by the Owner Trustee of a
request therefor from the Servicer or the Seller in writing, a list, in such
form as the Servicer or the Seller may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Holder, by receiving and holding a Certificate, shall be deemed to have agreed
not to hold any of the Servicer, the Seller 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 Corporate Trust Office. At any time
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that the Seller does not hold certificates representing a 100% beneficial
interest in the Trust, the Owner Trustee shall maintain in the Borough of
Manhattan, the City of New York, 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 shall
give prompt written notice to the Seller 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 Paying Agent. Except as otherwise
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provided in Section 5.2, the 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.
The 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
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Owner Trustee may revoke such power and remove the Paying Agent if the Owner
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Paying Agent shall initially be the Owner Trustee, and any co-paying agent
chosen by the Owner Trustee, and acceptable to the Owner Trustee. If the Owner
Trustee shall no longer be the Paying Agent, the Owner Trustee shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Owner Trustee shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Owner Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent shall hold all sums, if any, held by it for
distribution to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Owner Trustee. The provisions of
Sections 6.3, 6.6, 6.7, 6.8 and 6.9 shall apply to the Owner Trustee also in its
role as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise. Any Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Owner Trustee.
SECTION 3.1 Seller as Certificateholder. The Seller in its
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individual or any other capacity may become the owner or pledgee of Certificates
and may otherwise deal with the Owner Trustee or its Affiliates as if it were
not the Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to
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Certain Matters. The Owner Trustee shall not take action with respect to the
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following matters, unless (i) the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action at least 30 days before the
taking of such action, and (ii) the Certificateholders holding a majority of the
ownership interest in the Trust 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 claim or lawsuit by the Trust (other than an
action to collect on a Receivable or an action by the Indenture Trustee
pursuant to the Indenture) and the compromise of any action, claim or
lawsuit brought by or against the Trust (other than an action to collect on
a Receivable or an action by the Indenture Trustee pursuant to the
Indenture);
(b) the election by the Trust to file an amendment to the Certificate
of Trust, a conformed copy of which is attached hereto as Exhibit B;
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(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 materially adversely affects the interests of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the
interests of the Certificateholders;
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by
the Note Registrar, Paying Agent or Indenture Trustee or Certificate
Registrar of its obligations under the Indenture or this Agreement, as
applicable; or
(g) the amendment of the Sale and Servicing Agreement in circumstances
where the consent of any Noteholder is required, other than with respect to
any amendment where the consent of any Certificateholder is not required.
SECTION 4.2 Action by Certificateholders with Respect to Certain
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Matters. The Owner Trustee shall not have the power, except upon the written
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direction of the Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 10 thereof, (b) appoint a successor
Administrator pursuant to Section 10 of the Administration Agreement, (c) remove
the Servicer under the Sale and Servicing Agreement pursuant to Section 7.1
thereof or (d) except as expressly provided in the Basic Documents, sell the
Receivables or any interest therein after the termination of the Indenture. The
Owner Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to
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Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
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proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Holders of Certificates; provided, however, that under no
circumstances shall the Owner Trustee commence any such proceeding prior to the
date that is one year and one day after the termination of the Trust.
SECTION 4.4 Restrictions on Certificateholders' Power. The
-----------------------------------------
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given. The Certificateholders shall
not direct the Owner Trustee to take action that would violate the provisions of
Section 6.1 and the Owner Trustee shall not be obligated to follow any such
direction, if given.
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SECTION 4.5 Majority Control. Except as expressly provided
----------------
herein, any action that may be taken or consent that may be given or withheld by
the Certificateholders under this Agreement shall be effective if such action is
taken or such consent is given or withheld by the Holders of a majority of the
ownership interest in the Trust outstanding as of the close of the preceding
Distribution Date. Except as expressly provided herein, any written notice,
instruction, direction or other document of the Certificateholders delivered
pursuant to this Agreement shall be effective if signed by Holders of
Certificates evidencing a majority of the ownership interest in the Trust 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.
-------------------------------------------------
(a) Except as otherwise provided in Section 5.2, the Servicer, for the
benefit of the Certificateholders, shall establish and maintain at
______________________ Trust Company in the name of the Trust an Eligible
Deposit Account known as the First Security Auto Owner Trust 1999-2 Certificate
Distribution Account (the "Certificate Distribution Account"), bearing an
additional designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
(b) The Trust shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise provided herein or in the Sale
and Servicing Agreement, the Certificate Distribution Account shall be under the
sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Servicer shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Certificate Distribution Account as
an Eligible Deposit Account and shall cause the Trust to transfer any cash
and/or any investments in the old Certificate Distribution Account to such new
Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
--------------------------
(a) On each Distribution Date, the Owner Trustee shall, or shall cause
the Paying Agent to, (based on the information contained in the Servicer's
Certificate delivered on the related Determination Date) distribute to the
Certificateholders, on a pro rata basis, amounts deposited in the Certificate
Distribution Account pursuant to Section 4.6(c) of the Sale and Servicing
Agreement. Notwithstanding the foregoing or anything else to the contrary in
this Agreement, so long as the Certificates that represent in the aggregate a
100% beneficial interest in the Trust are held by the Seller, (i) no Certificate
Distribution Account shall be required to be established or maintained and (ii)
all distributions and payments on the Certificates (including the final
distribution as contemplated by Section 7.1(c) hereof) required under the Sale
and Servicing Agreement shall be
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made directly to the Seller (whether or not the Sale and Servicing Agreement
otherwise contemplates deposit into the Certificate Distribution Account).
(b) On each Distribution Date, the Owner Trustee shall, or shall cause
the Paying Agent to, send to each Certificateholder the statement described in
Section 4.7(a) of the Sale and Servicing Agreement; provided, that, the Servicer
has prepared such a statement and delivered same to the Owner Trustee and the
Paying Agent.
(c) If any withholding tax is imposed on the Trust's distributions (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2. The Owner Trustee, or the Paying Agent, is hereby authorized and directed
to retain from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting any
such tax in appropriate proceedings and the Paying Agent from 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 the Paying Agent, may in its sole
discretion withhold such amounts in accordance with this subsection 5.2(c). If
a Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee, or the Paying Agent, shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Owner Trustee, or the Paying Agent, for any out-of-pocket
expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the
Trust pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist and upon written request
of the Seller, submit on behalf of the Trust an Issuer Order to the Indenture
Trustee pursuant to Section 3.3(e) of the Indenture instructing the Indenture
Trustee to pay such funds to or at the order of the Seller.
SECTION 5.3 Method of Payment. Subject to Section 5.2(a) and
-----------------
Section 7.1(c), distributions required to be made to Certificateholders on any
Distribution Date shall be made to each Certificateholder of record on the
related Record Date (i) by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor or, where possible, by intra-bank book entry credit, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Record Date and
the distribution required to be made to such Certificateholders exceeds $100,000
or (ii) by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
SECTION 5.4 Accounting and Reports to the Certificateholders, the
------------------------------------------------------
Internal Revenue Service and Others. The Administrator or Servicer, as the case
-----------------------------------
may be, shall (a) maintain (or cause to be maintained) the books of the Trust on
the basis of a fiscal year ending December 31
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on the accrual method of accounting, (b) deliver to each Certificateholder, as
may be required by the Code and applicable Treasury Regulations or otherwise,
such information as may be required to enable each Certificateholder to prepare
its federal income tax returns, (c) file such tax returns relating to the Trust
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 division or branch of the
Seller 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 subsection 5.2(c) with
respect to income or distributions to Certificateholders.
SECTION 5.5 Signature on Returns. The Owner Trustee shall sign on
--------------------
behalf of the Trust any and all tax returns of the Trust, unless applicable law
requires a Certificateholder to sign such documents, in which case such
documents shall be signed by the Seller so long as the Seller is a
Certificateholder. If the Seller is not a Certificateholder, such documents
shall be executed by the requisite number of Certificateholders.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
-----------------------
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the Basic Documents,
including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement and the Sale and Servicing Agreement. No implied
covenants or obligations shall be read into this Agreement or any Basic Document
against the Owner Trustee.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee or
the Trust hereunder or under any Basic Document regardless of whether the
Administration Agreement is terminated or rejected, and the Owner Trustee shall
not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(c) The Owner Trustee shall not take any action that (i) is in
violation of the purposes of the Trust set forth in Section 2.3 or (ii) would,
to the Actual Knowledge of a Responsible Officer of the Owner Trustee, result in
the Trust's becoming taxable as a corporation for federal income tax purposes.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is
-----------------------
authorized and directed to execute and deliver the Basic Documents and each
certificate or other document attached
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as an exhibit to or contemplated by the Basic Documents to which the Trust is to
be a party, in such form as the Seller shall approve as evidenced conclusively
by the Owner Trustee's execution thereof. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
-------------------------------
provided in this Article VI, in accepting the trusts hereby created,
______________________ acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. 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. The Owner Trustee shall not be liable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own negligent action, its own negligent failure to act or its own willful
misconduct or (ii in the case of the inaccuracy of any representation or
warranty contained in Section 6.6 or expressly made by ______________________.
In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) 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 distributions and
payments to be made to Certificateholders under this Agreement or to
Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Financed Vehicle; the filing of
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 in any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness
of any Receivable; the performance or enforcement of any Receivable; the
compliance by the Seller or the Servicer with any warranty or
representation made under any Basic Document or in any related document,
the accuracy of any such warranty or representation or any action of the
Administrator, the Trustee or the Servicer or any subservicer taken in the
name of the Owner Trustee or the preparation, execution or filing of any
tax returns on behalf of the Trust or the preparation, execution or filing
of any document or report with the Securities and Exchange Commission or
any state commission or agency;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions, or
at the direction, of the Administrator or the Certificateholders;
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(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or
under any Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or any amounts payable
with respect to the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of
and makes no representation as to the validity or sufficiency of any
provision of this Agreement or for the due execution hereof by the Seller
or for the form, character, genuineness, sufficiency, value or validity of
any of the Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates (other than
the certificate of authentication on the Certificates) or of any
Receivables or any related documents, 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 Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Seller, the
Certificate Registrar (if not the Owner Trustee), any Paying Agent or the
Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Basic Documents that are required to
be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the
Owner Trustee therein or thereby. The right of the Owner Trustee to
perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not
be answerable for other than its negligence or willful misconduct in the
performance of any such act;
(h) in the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner
Trustee and conforming to the requirements of this Agreement in determining
the truth of the statements and the correctness of the opinions contained
therein; provided, however, that the Owner Trustee shall have
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examined such certificates or opinions so as to determine compliance of the
same with the requirements of this Agreement;
(i) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Owner Trustee was negligent in ascertaining the pertinent facts; and
(j) 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 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 6.4 Action upon Instruction by Certificateholders.
---------------------------------------------
(a) Subject to Section 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
(b) Notwithstanding Section 6.4(a), the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have determined, or shall have been advised by counsel, that such
action may result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, 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 such instruction 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 instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 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.
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SECTION 6.6 Representations and Warranties of Owner Trustee. The
-----------------------------------------------
Owner Trustee hereby represents and warrants in its individual capacity to the
Seller, for the benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation. The
eligibility requirements set forth in Section 6.13 (a) - (d) are satisfied
with respect to it.
(b) It has full power, authority and legal right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement
(i) shall not violate any provision of any Delaware or federal law or
regulation governing the banking and trust powers of the Owner Trustee or
any order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Owner Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter or
by-laws of the Owner Trustee, or (iii) shall not violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of any lien on any properties included
in the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or ability to
perform its duties as Owner Trustee under this Agreement or on the
transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of
this Agreement shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of
any other action in respect of, any Delaware or federal governmental
authority or agency regulating the corporate trust activities of
______________________, except for the filing of the Certificate of Trust
with the Delaware Secretary of State.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper
-17-
party or parties and need not investigate any fact or matter in any such
document. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees 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, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee in good
faith; and (ii may consult with counsel, accountants and other skilled
professionals to be selected in good faith 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 opinion or advice of any such counsel, accountants
or other such Persons.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The
--------------------------------------------
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Seller, the
Administrator, the Indenture Trustee and the Servicer in transactions in the
same manner as it would have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity.
--------------------------
(a) The Owner Trustee shall receive as compensation for its services
hereunder from First Security Bank, N.A. such fees as have been separately
agreed upon before the date hereof between the Seller and the Owner Trustee, and
the Owner Trustee shall be entitled to be reimbursed by First Security Bank,
N.A. for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, custodians, nominees,
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 and its successors,
assigns, agents and servants in accordance with the provisions of Section 6.2 of
the Sale and Servicing Agreement. The compensation and indemnities described in
this Section 6.9 shall survive the resignation or termination of the Owner
Trustee or the termination of this Agreement. Any amounts paid to the Owner
Trustee pursuant to this Article VI shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
(b) First Security Bank, N.A. hereby agrees, whether or not any of the
transactions contemplated hereby shall be consummated, to assume liability for,
and hereby agrees to indemnify, protect, save and keep harmless the Owner
Trustee, and its successors, assigns, legal representatives, agents and
servants, from and against any and all liabilities, obligations, losses,
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damages, penalties, taxes (excluding any taxes payable by the Owner Trustee on
or measured by any compensation received by the Owner Trustee for its services
hereunder), claims, actions, suits, costs, expenses or disbursements (including,
without limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Owner
Trustee (whether or not also indemnified against by the Servicer under the Sale
and Servicing Agreement or also indemnified against by any other Person) in any
way relating to or arising out of this Trust Agreement or any of the Basic
Documents or the enforcement of any of the terms contained therein, or in any
way relating to or arising out of the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder, except:
(i) in any case of wilful misconduct or negligence on the part of the
Owner Trustee in the performance or nonperformance of its duties hereunder
or under the Basic Documents; or
(ii) in any case resulting from the inaccuracy of any representation
or warranty of the Owner Trustee made in its individual capacity (or from
the failure of the Owner Trustee to perform any covenant in its individual
capacity) in Section 6.6 hereof.
The indemnities contained in this Section 6.9 extend to the Owner Trustee and
shall not be construed as indemnities of the Owner Trust Estate (except to the
extent, if any, that the Owner Trustee has been reimbursed by the Owner Trust
Estate for amounts covered by the indemnities contained in this Section 6.9).
(c) If necessary, the Owner Trustee shall be entitled to
indemnification from the Owner Trust Estate, subject to the lien of the
Indenture, for any liability, obligation, loss, damage, penalty, tax, claim
action, suit, cost, expense or disbursement indemnified against pursuant to this
Section 6.9 to the extent not reimbursed by First Security Bank, N.A. or others,
but not without releasing any of them from their respective agreements of
reimbursement; and to secure the same, the Owner Trustee shall have a lien on
the Trust Estate, subject to the lien of the Indenture and such lien of the
Owner Trustee shall be prior to any interest of First Security Bank, N.A. in the
Trust Estate.
SECTION 6.10 Replacement of Owner Trustee.
----------------------------
(a) The Owner Trustee may give notice of its intent to resign and be
discharged from the trusts hereby created by written notice thereof to the
Administrator; provided that no such resignation shall become effective, and the
Owner Trustee shall not resign, prior to the time set forth in Section 6.10(c).
The Administrator may appoint a successor Owner Trustee by delivering a written
instrument, in duplicate, to the resigning Owner Trustee and the successor Owner
Trustee. If no successor Owner Trustee shall have been appointed and have
accepted appointment within 30 days after the giving of such notice, the
resigning Owner Trustee giving such notice may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
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(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of Owner Trustee for any reason,
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 the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
6.10 shall not become effective and no such resignation shall be deemed to have
occurred until a written acceptance of appointment is delivered by the successor
Owner Trustee to the outgoing Owner Trustee and the Administrator and all fees
and expenses due to the outgoing Owner Trustee are paid. Any successor Owner
Trustee appointed pursuant to this Section 6.10 shall be eligible to act in such
capacity in accordance with Section 6.13 and, following compliance with the
preceding sentence, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Owner Trustee. The Administrator shall promptly
provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
(d) 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. 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.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any Person
----------------------------------------
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be
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eligible pursuant to Section 6.13, and without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
provided, however, that the Owner Trustee shall mail notice of such merger or
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consolidation to the Rating Agencies.
SECTION 6.12 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 requirement 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 trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 6.12, 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 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 eligibility as a successor
trustee pursuant to Section 6.13 and no notice of the appointment of any co-
trustee or separate trustee shall be required pursuant to Section 6.10.
(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
(unless such other trustee acts or fails to act at the direction of such
first trustee); 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
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given to each of them. Every instrument appointing any separate trustee or co-
trustee shall refer to this Agreement and the conditions of this Article. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Owner Trustee. Each
such instrument shall be filed with the Owner Trustee and a copy thereof given
to the 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 6.13 Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times satisfy the requirements of Section 26(a)(1) of the
Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Business Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have a
combined capital and surplus of at least $100,000,000; (d) be subject to
supervision or examination by federal or state authorities and (e) with respect
to a successor Owner Trustee has (i) a rating of at least P-1 from Xxxxx'x and
A-1 from S&P with respect to short-term obligations, and (ii) if such
institution has issued long-term unsecured debt obligations, a rating of A1 or
higher from Xxxxx'x and A or higher from S&P with respect to long term unsecured
debt obligations. Notwithstanding the foregoing, ______________________ shall
be eligible to act as Owner Trustee if it satisfies clauses (a), (b), (c) and
(d) above. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 6.13, 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. If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
------------------------------
(a) The Trust shall dissolve on the final distribution by the Owner
Trustee or Paying Agent, as the case may be, of all monies or other property or
proceeds of the Owner Trust Estate in accordance with the terms of the
Indenture, the Sale and Servicing Agreement (including the exercise by the
Servicer of its option to purchase the Receivables pursuant to Section 9.2 of
the
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Sale and Servicing Agreement) and Article V hereof; provided, however, that in
-------- -------
no event shall the Trust continue beyond the expiration of 21 years from the
date hereof. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, (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 the Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 7.1(a), neither the Seller nor any
Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement.
(c) Except as otherwise provided in Section 5.2(a), notice of any
dissolution of the Trust specifying the Distribution Date upon which the
Certificateholders shall surrender their Certificates to the Certificate
Registrar for payment of the final distribution and cancellation, shall be given
by the Owner Trustee by letter to Certificateholders of record and the Rating
Agencies mailed not earlier than the 15th day and not later than the 25th day of
the month preceding the specified Distribution Date given pursuant to subsection
8.1(c) of the Sale and Servicing Agreement, stating: (i) the amount of any such
final payment; and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Owner Trustee therein
specified. Upon presentation and surrender of the Certificates, the Owner
Trustee shall cause to be distributed to the Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice specified in Section 7.1(c), 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 laws with respect to
escheat of funds, any funds remaining in the Trust after exhaustion of such
remedies in the preceding sentence shall be deemed property of the Seller and
distributed by the Owner Trustee to the Seller.
(e) Upon the winding up of the Trust and payment of the Trust's
obligations in accordance with applicable law as directed by the Seller, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute and the Trust shall
terminate.
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ARTICLE VII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
---------------------------------------------------
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
-----------
without the consent of any of the Noteholders or the Certificateholders to (i)
cure any ambiguity, (ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision in this Agreement
or any other Basic Document, (iii) add or supplement any credit enhancement for
the benefit of the Noteholders or the Certificateholders (provided that if any
--------
such addition shall affect any class of Noteholders or Certificateholders
differently than any other class of Noteholders or Certificateholders, then such
addition shall not, as evidenced by an Opinion of Counsel, adversely affect in
any material respect the interests of any class of the Noteholders or the
Certificateholders), (iv) add to the covenants, restrictions or obligations of
the Seller or the Owner Trustee for the benefit of the Noteholders or
Certificateholders, (v) evidence and provide for the acceptance of the
appointment of a successor trustee with respect to the Owner Trust Estate and
add to or change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VI, or (vi) add, change or eliminate any other provision of this
Agreement in any manner that shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of the Noteholders or the
Certificateholders.
SECTION 8.2 Amendments With Consent of Certificateholders and
-------------------------------------------------
Noteholders. This Agreement may be amended from time to time by the Seller and
-----------
the Owner Trustee with the consent of Noteholders whose Notes evidence not less
than a majority of Outstanding Amount of Notes of the related Series as of the
close of business on the preceding Distribution Date and the consent of the
Holders of Certificates evidencing not less than a majority of the ownership
interest in the Trust as of the close of business on the preceding Distribution
Date (which consent, whether given pursuant to this Section 8.2 or pursuant to
any other provision of this Agreement, shall be conclusive and binding on such
Person and on all future holders of such Notes or Certificates and of any Notes
or Certificates issued upon the transfer thereof or in exchange thereof or in
lieu thereof whether or not notation of such consent is made upon the Notes or
Certificates) 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 (a) increase or reduce in any manner the
-------
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any Note or
the Specified Reserve Account Balance, (b) reduce the aforesaid percentage
required to consent to any such amendment or (c) amend Section 4.3, without the
consent of the Holders of all of the Notes and the Holders of all of the
Certificates then outstanding.
SECTION 8.3 Form of Amendments.
------------------
(a) Promptly after the execution of any amendment, supplement or
consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
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(b) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to Section 8.2 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 and Noteholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(c) 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.
(d) 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 and that all conditions precedent to
such execution have been satisfied. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The
------------------------------------
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Certificateholders to and in their ownership
interest in the Owner Trust Estate shall operate to terminate this Agreement or
the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section
-------------------------------
9.7, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Certificateholders, the Administrator 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 9.3 Notices. All demands, notices and communications upon
-------
or to the Seller, the Servicer, the Administrator, the Indenture Trustee, the
Owner Trustee, the Rating Agencies or any Certificateholder under this Agreement
shall be delivered in the manner as specified in Section 9.5 of the Sale and
Servicing Agreement.
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SECTION 9.4 Severability. If any one or more of the covenants,
------------
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the
------------
parties hereto in separate counterparts (and by different parties on separate
counterparts), each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and each Certificateholder and their respective 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 9.7 No Recourse. Each Certificateholder by accepting a
-----------
Certificate (or interest therein) acknowledges that such Person's Certificate
(or interest therein) represents beneficial interests in the Trust only and does
not represent interests in or obligations of the Seller, the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse, either directly or indirectly, 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 Basic Documents. Except as expressly provided
in the Basic Documents, neither the Seller, the Servicer nor the Owner Trustee
in their respective individual capacities, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the distribution of any amount with respect to the Certificates, or the Trust's
performance of, or omission to perform, any of the obligations or
indemnifications contained in the Certificates or this Agreement, it being
expressly understood that said obligations have been made solely by the Trust.
Each Certificateholder by the acceptance of a Certificate (or beneficial
interest therein) shall agree that, except as expressly provided in the Basic
Documents, in the case of nonpayment of any amounts with respect to the
Certificates, it shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
SECTION 9.8 Headings. The headings of the various Articles and
--------
Sections herein are for purposes of reference only and shall not affect the
meaning or interpretation of any provision hereof.
SECTION 9.9 Governing Law. This Agreement shall be governed by
-------------
and construed in accordance with the internal laws of the State of Delaware,
without reference to its conflict of law provisions, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
-26-
SECTION 9.10 Administrator. The Administrator is authorized to
-------------
execute on behalf of the Trust all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file or deliver pursuant to the Basic Documents. Upon request, the
Owner Trustee shall execute and deliver to the Administrator a power of attorney
appointing the Administrator its agent and attorney-in-fact to execute all such
documents, reports, filings, instruments, certificates and opinions.
SECTION 9.11 No Petition. Notwithstanding Section 4.3 hereof, the
-----------
Owner Trustee by entering this Trust Agreement and each Certificateholder, by
accepting a Certificate (or interest therein) issued hereunder, hereby covenant
and agree that they shall not, prior to the day that is one year and one day
after the termination of the Trust, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke in any court or government authority for the purpose
of commencing or sustaining a case against the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Issuer.
-27-
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.
_____________________,
as Owner Trustee
By:____________________________
Name:
Title:
First Security Bank, N.A.,
as Seller
By:____________________________
Name:
Title:
Acknowledged and Accepted:
First Security Bank, N.A.,
as Servicer
By:__________________________
Name:
Title:
EXHIBIT A
NUMBER
R-1
OWNERSHIP INTEREST: 100%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY
REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON __________, 20___, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM REGISTRATION THEREUNDER.
THIS CERTIFICATE IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
TRUST AGREEMENT REFERENCED BELOW.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
FIRST SECURITY BANK, N.A. OR ANY OF ITS AFFILIATES.
First Security Auto Owner Trust 20___-___
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of fixed rate retail motor vehicle
installment sales contracts
-1-
and installment loans, which contracts and loans have been sold to the
Trust by First Security Bank, N.A.
THIS CERTIFIES THAT First Security Bank, N.A. is the registered owner
of a nonassessable, fully-paid, fractional undivided interest in First Security
Auto Owner Trust 20___-___ (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of
_______, 20___ (as amended and restated as of ________, 20___ and as further
amended, restated or supplemented from time to time, the "Trust Agreement"),
between the Seller and _____________, 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 issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, the terms of which are
incorporated herein by reference and made a part hereof, to which Trust
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Sale and
Servicing Agreement and the Indenture.
Distributions on this Certificate shall be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer, check mailed or, where
possible, intra-bank book entry 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 shall 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 maintained for such purpose by the Owner Trustee at
the office of the Indenture Trustee in the Borough of Manhattan, the City of 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 an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND
-2-
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
-3-
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.
Dated: _________, 20___
FIRST SECURITY AUTO OWNER TRUST 20__-__
By: _______________________,
not in its individual capacity but solely as
Owner Trustee
By:_________________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
__________________, _____________________________,
not in its individual not in its individual
capacity but solely capacity but solely
as Owner Trustee OR as Owner Trustee
by __________________________,
as Authenticating Agent
By:_________________________
Authorized Officer By: _________________________
Authorized Officer
-4-
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, the Indenture Trustee, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections and recoveries with respect to the Receivables
(and certain other amounts), all as more specifically set forth herein and in
the Trust Agreement and the Sale and Servicing Agreement. A copy of each of the
Sale and Servicing Agreement and the Trust Agreement may be examined during
normal business hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by any Certificateholder upon written
request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of (i) the Holders of
the Notes evidencing not less than a majority of the Outstanding Amount of the
Notes, and (ii) Certificateholders whose Certificates evidence not less than a
majority of the ownership interest in the Trust, each as of the close of the
preceding Distribution Date. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder 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 circumstances, without the consent of the Holders
of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee at the office of the Indenture Trustee in the Borough of
Manhattan, City of New York, New York, accompanied by (i) 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 (ii) certain opinions and other documents required by
Section 3.4 of the Trust Agreement, 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 initial Certificate Registrar
appointed under the Trust Agreement will be the Owner Trustee.
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.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate in accordance with Article VII of the
Trust Agreement.
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.
-6-
EXHIBIT B
CERTIFICATE OF TRUST OF
First Security Auto Owner Trust 20___-___
-----------------------------------------
THIS Certificate of Trust of First Security Auto Owner Trust 20___-___
(the "Trust"), dated as of _____, 20___ is being duly executed and filed by
______________, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801 et seq.).
------- -- ---
1. Name. The name of the business trust formed hereby is First
----
Security Auto Owner Trust 20___-___.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware is ___________________, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
_____________________________,
not in its individual capacity but solely as
trustee of the Trust.
By: _______________________________
Name:
Title:
