EXHIBIT 4.4
TRUST AGREEMENT
BETWEEN
FIRST SECURITY BANK, N.A.
SELLER
AND
___________________________________ , AS
OWNER TRUSTEE
DATED AS OF ______________, ____
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II. ORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 NAME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 PURPOSES AND POWERS. . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 APPOINTMENT OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . 6
2.5 INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE . . . . . . . . 6
2.6 DECLARATION OF TRUST . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 LIABILITY OF THE CERTIFICATEHOLDERS. . . . . . . . . . . . . . . . 7
2.8 TITLE TO TRUST PROPERTY. . . . . . . . . . . . . . . . . . . . . . 7
2.9 SITUS OF TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER . . . . . . . . . . . 7
ARTICLE III. THE CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . 9
3.1 INITIAL CERTIFICATE OWNERSHIP. . . . . . . . . . . . . . . . . . . 9
3.2 FORM OF THE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . 9
3.3 EXECUTION, AUTHENTICATION AND DELIVERY . . . . . . . . . . . . . . 9
3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. . . . . . . . . 11
3.6 PERSONS DEEMED CERTIFICATEHOLDERS. . . . . . . . . . . . . . . . . 12
3.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES. . . . . 12
3.8 MAINTENANCE OF CORPORATE TRUST OFFICE. . . . . . . . . . . . . . . 12
3.9 APPOINTMENT OF PAYING AGENT. . . . . . . . . . . . . . . . . . . . 12
3.10 SELLER AS CERTIFICATEHOLDER . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV. ACTIONS BY OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . . 13
4.1 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS . . . 14
4.3 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY. . . . . . 14
4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. . . . . . . . . . . . . 14
4.5 MAJORITY CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V. APPLICATION OF TRUST FUNDS; CERTAIN DUTIES. . . . . . . . . . . . 15
5.1 ESTABLISHMENT OF CERTIFICATE DISTRIBUTION ACCOUNT. . . . . . . . . 15
5.2 APPLICATION OF TRUST FUNDS . . . . . . . . . . . . . . . . . . . . 15
5.3 METHOD OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4 ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, THE INTERNAL
REVENUE SERVICE AND OTHERS . . . . . . . . . . . . . . . . . . . . 16
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5.5 SIGNATURE ON RETURNS . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI. THE OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 DUTIES OF OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 17
6.2 RIGHTS OF OWNER TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 18
6.3 ACCEPTANCE OF TRUSTS AND DUTIES. . . . . . . . . . . . . . . . . . 18
6.4 ACTION UPON INSTRUCTION BY CERTIFICATEHOLDERS. . . . . . . . . . . 20
6.5 FURNISHING OF DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . 21
6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE. . . . . . . . . . 21
6.7 RELIANCE; ADVICE OF COUNSEL. . . . . . . . . . . . . . . . . . . . 21
6.8 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES . . . . . . . . . . . 22
6.9 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . . . . 22
6.10 REPLACEMENT OF OWNER TRUSTEE . . . . . . . . . . . . . . . . . . . 23
6.11 MERGER OR CONSOLIDATION OF OWNER TRUSTEE . . . . . . . . . . . . . 24
6.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE . . . . . . . . . . 24
6.13 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE . . . . . . . . . . . . 25
ARTICLE VII. TERMINATION OF TRUST AGREEMENT. . . . . . . . . . . . . . . . . 26
7.1 TERMINATION OF TRUST AGREEMENT . . . . . . . . . . . . . . . . . . 26
ARTICLE VIII. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.1 AMENDMENTS WITHOUT CONSENT OF CERTIFICATEHOLDERS OR NOTEHOLDERS. . 27
8.2 AMENDMENTS WITH CONSENT OF CERTIFICATEHOLDERS AND NOTEHOLDERS. . . 27
8.3 FORM OF AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 NO LEGAL TITLE TO OWNER TRUST ESTATE. . . . . . . . . . . . . . . 28
9.2 LIMITATIONS ON RIGHTS OF OTHERS. . . . . . . . . . . . . . . . . . 28
9.3 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.4 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.5 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.6 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . 29
9.7 NO RECOURSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.8 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.9 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.10 CERTIFICATE TRANSFER RESTRICTIONS . . . . . . . . . . . . . . . . 30
9.11 ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.12 AMENDED AND RESTATED TRUST AGREEMENT . . . . . . . . . . . . . . . 30
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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TRUST AGREEMENT, dated as of _______, ____ between First Security
Bank, N.A., a Delaware corporation, as Seller, and ______________, a
_____________, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Certain capitalized terms used in this
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
"First Security Auto Owner Trust 19-__," 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
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 purpose of the Trust is
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;
(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;
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(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, the Yield Supplement 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
Trust Estate 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
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.
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
declares that it shall hold the Owner Trust Estate in trust upon and subject
to the conditions and obligations set forth 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. It is the
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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; [special provision for state taxes, if applicable].
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. No
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8 TITLE TO TRUST PROPERTY. Legal title to all the
Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title
to any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9 SITUS OF TRUST. The Trust shall be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
Delaware or the State of _________. The Trust shall not have any employees
in any state other than Delaware; PROVIDED, HOWEVER, that nothing herein
shall 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 _________, and payments and distributions shall be made by the
Trust only from Delaware or ________. The only office of the Trust shall be
the Corporate Trust Office in Delaware.
SECTION 2.10 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are presently owned and such business is presently
conducted and had at all relevant times, and now has, power,
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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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ARTICLE III
THE CERTIFICATES
SECTION 3.1 INITIAL CERTIFICATE OWNERSHIP. Upon the formation
of 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.
(a) The Certificates shall be substantially in the form set forth
in EXHIBIT A. The Certificates shall represent the entire beneficial
interest in the Trust. The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of a Responsible 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.
SECTION 3.3 EXECUTION, AUTHENTICATION AND DELIVERY. On the
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 [or ______________,
as the Owner Trustee's authenticating agent], by manual signature.
Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication.
SECTION 3.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE
OF 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. ______________ 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) The initial Certificateholders may at any time, without
consent of the Noteholders, sell, transfer, convey or assign in any manner
its rights to and interests in the Certificates, provided that the following
conditions are satisfied: (i) 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 to take positions for tax purposes consistent with the tax
positions agreed to be taken by the Certificateholders and (iv) the
conditions set forth in Section 9.10 have been satisfied. In addition, no
transfer of a Certificate shall be registered unless the transferee shall
have provided to the Owner Trustee and the Certificate Registrar an opinion
of counsel that in connection with such transfer no registration of the
Certificates is required under the Securities Act or applicable state law or
that such transfer is otherwise being made in accordance with all applicable
federal and state securities laws.
(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 [(or shall cause ______________ as its
authenticating agent to 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 deliver [(or shall cause ________________ as its
authenticating agent to authenticate and 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
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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.
SECTION 3.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(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 bona fide
purchaser, the Owner Trustee shall execute on behalf of the Trust and the
Owner Trustee shall authenticate and deliver [(or shall cause ________________
as its authenticating agent to 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 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 bona fide 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 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
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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
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
ADDRESSES. The Owner Trustee shall furnish or cause to be furnished to the
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. 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 initially designates the offices of
________________________, as its principal office for such purposes. 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
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 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 _________________, and any co-paying agent chosen by
_______________, and acceptable to the Owner Trustee. The ____________ shall
be permitted to resign as Paying Agent upon 30 days' written notice to the
Owner Trustee. If ______________ shall no longer be the Paying
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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.
SECTION 3.10 SELLER AS CERTIFICATEHOLDER. The Seller in its
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
CERTAIN MATTERS. The Owner Trustee shall not take action with respect to the
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 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;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
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(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.
SECTION 4.2 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the written
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 8.1
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
BANKRUPTCY. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Holders of Certificates (including the unanimous approval of the
board of directors of the Seller) unless the Owner Trustee reasonably believes
that the Trust is insolvent.
SECTION 4.4 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or 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.
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
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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
__________ in the name of the Owner Trustee an Eligible Deposit Account known
as the First Security Auto Owner Trust 19-__ 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 Owner Trustee 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 Owner Trustee 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 (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 4.1(c)(v) of the Sale and Servicing Agreement.
Notwithstanding the foregoing or anything else to the contrary in this
Agreement, so long as the Certificates 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 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 send to
each
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Certificateholder the statement described in Section 4.7(a) of the Sale and
Servicing Agreement.
(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 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 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 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 shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
(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, 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 Owner Trustee shall (a)
maintain (or cause to be maintained) the books of the Trust on the basis of a
fiscal year ending [December 31] 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
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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.
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, the Sale and
Servicing Agreement and the other 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, the Sale and Servicing
Agreement or any other 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 hereunder or under any Basic Document, 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) 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 examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of
subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of
judgment
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made in good faith by a Responsible Officer unless it is proved that
the Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) 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.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with 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.
(g) The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section 6.1.
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 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 the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
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(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 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
or 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;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Certificateholders;
(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 or the
Servicer under any of the Basic
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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; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any 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.
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 the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, 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.
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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.
SECTION 6.6 REPRESENTATIONS AND WARRANTIES OF OWNER TRUSTEE.
The Owner Trustee hereby represents and warrants 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 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 governmental authority or agency
regulating the corporate trust activities of ______________.
(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.
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(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties
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 with reasonable care; and (ii) may consult with counsel,
accountants and other skilled professionals to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the opinion
or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any Basic Document.
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. The Owner Trustee shall
receive as compensation for its services hereunder from the Servicer 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 the Servicer 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 7.2 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
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pursuant to this Article VI shall be deemed not to be a part of the Owner
Trust Estate immediately after such payment.
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:
(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 provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
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(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 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 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
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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 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 $50,000,000 and; (d) be subject to
supervision or examination by federal or state authorities. 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
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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) This Agreement (other than Section 6.9) and the Trust shall
terminate and be of no further force or effect on the final distribution by
the Owner Trustee 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 Sale and Servicing
Agreement) and Article V. 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
termination of the Trust specifying the Distribution Date upon which the
Certificateholders shall surrender their Certificates to the Owner Trustee
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 9.1(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
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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 its termination, 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.
ARTICLE VIII
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,
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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.
(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
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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 as specified in Section 10.5 of the
Sale and Servicing Agreement.
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 Owner Trustee's performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the
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Certificates or this Agreement, it being expressly understood that said
covenants and obligations have been made by the Owner Trustee solely in its
capacity as the Owner Trustee. 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 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.
SECTION 9.10 CERTIFICATE TRANSFER RESTRICTIONS. The Certificates
may not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA,(ii) a plan described in Section 4975(e)(1) of the Code or (iii)
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding
a Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
SECTION 9.11 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 9.12 AMENDED AND RESTATED TRUST AGREEMENT. This Trust
Agreement is the amended and restated trust agreement contemplated by the
Trust Agreement dated as of _____________, ____ between the Seller and the
Owner Trustee.
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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:
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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 _____________, ____, 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 19-__
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
-32-
sales contracts 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 19-__ (the "Trust").
The Trust was created pursuant to a trust agreement, dated as of
____________, ____ (as amended and restated as of ______________, ____ 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 in the __________________________.
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
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WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-34-
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: _______________, ____
FIRST SECURITY AUTO OWNER TRUST 19-__
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 as Owner Trustee
OR by _________________________,
as Authenticating Agent
By:_________________________ By: _________________________
Authorized Officer Authorized Officer
-35-
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 in the ______________, 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 is ___________________________.
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.
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The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to the Trust Agreement and the Sale and Servicing Agreement and the
disposition of all property held as part of the Trust.
-37-
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.
-38-
EXHIBIT B
CERTIFICATE OF TRUST OF
FIRST SECURITY AUTO OWNER TRUST 19-__
THIS Certificate of Trust of First Security Auto Owner Trust 19-__
(the "Trust"), dated as of ____________, ____ is being duly executed and
filed by ____________________, _________________________, as trustee, to form
a business trust under the Delaware Business Trust Act (12 DEL. C. Section
3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is First
Security Auto Owner Trust 19-__.
2. DELAWARE TRUSTEE. The name and business address of the
trustee of the Trust in the State of Delaware is _______________________,
_______________, ____________, _________.
3. This Certificate of Trust shall be effective on ____________,
____.
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:
