Exhibit 4.3
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FORM OF AMENDED AND RESTATED TRUST AGREEMENT
between
USAA ACCEPTANCE, LLC
as Depositor
and
--------------------
as Owner Trustee
Dated as of ______________, 200_
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name.......................................................1
SECTION 2.2. Offices....................................................1
SECTION 2.3. Purposes and Powers........................................1
SECTION 2.4. Appointment of Owner Trustee...............................2
SECTION 2.5. Capital Contribution of Owner Trust Estate.................2
SECTION 2.6. Declaration of Trust.......................................2
SECTION 2.7. Liability of the Depositor and the Certificateholders......3
SECTION 2.8. Title to Trust Property....................................3
SECTION 2.9. Situs of Trust.............................................3
SECTION 2.10. Representations and Warranties of the Depositor............3
SECTION 2.11. Federal Income Tax Matters.................................4
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership...............................5
SECTION 3.2. The Certificates...........................................5
SECTION 3.3. Authentication of Certificates.............................6
SECTION 3.4. Registration of Certificates; Transfer and Exchange
of Certificates.....................................6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates..........8
SECTION 3.6. Persons Deemed Owners of Certificates......................8
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses...........................................8
SECTION 3.8. Maintenance of Office or Agency............................9
SECTION 3.9. Appointment of Certificate Paying Agent....................9
SECTION 3.10. Certain Rights of Depositor................................9
SECTION 3.11. Book-Entry Certificates...................................10
SECTION 3.12. Notices to Clearing Agency................................10
SECTION 3.13. Definitive Certificates...................................11
SECTION 3.14. Authenticating Agents.....................................11
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters....................................12
SECTION 4.2. Action by Certificateholders with Respect to
Certain Matters....................................12
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy...13
SECTION 4.4. Restrictions on Certificateholders' Power.................13
SECTION 4.5. Majority Control..........................................13
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.........13
SECTION 5.2. Application of Trust Funds................................13
SECTION 5.3. Method of Payment.........................................14
SECTION 5.4. No Segregation of Monies; No Interest.....................15
SECTION 5.5. Accounting and Reports to Noteholders,
Certificateholders, Internal Revenue Service
and Others.........................................15
SECTION 5.6. Signature on Returns; Tax Matters Partner.................15
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.........................................15
SECTION 6.2. General Duties............................................16
SECTION 6.3. Action upon Instruction...................................16
SECTION 6.4. No Duties Except as Specified in this Agreement
or in Instructions.................................17
SECTION 6.5. No Action Except Under Specified Documents or
Instructions.......................................17
SECTION 6.6. Restrictions..............................................18
SECTION 6.7. Acceptance of Trusts and Duties...........................18
SECTION 6.8. Furnishing of Documents...................................19
SECTION 6.9. Representations and Warranties............................19
SECTION 6.10. Reliance; Advice of Counsel...............................20
SECTION 6.11. Not Acting in Individual Capacity.........................20
SECTION 6.12. Owner Trustee Not Liable for Certificates or
Receivables........................................20
SECTION 6.13. Owner Trustee May Own Certificates and Notes..............21
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses.........................21
SECTION 7.2. Payments to Owner Trustee.................................21
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ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust..................................21
SECTION 8.2. Prepayment of Certificates................................22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee................23
SECTION 9.2. Resignation or Removal of Owner Trustee...................24
SECTION 9.3. Successor Owner Trustee...................................24
SECTION 9.4. Merger or Consolidation of Owner Trustee..................25
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.............25
SECTION 9.6. Compliance with Statutory Trust Statute...................26
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments................................27
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholders.................................28
SECTION 10.3. Limitation on Rights of Others............................28
SECTION 10.4. Notices...................................................28
SECTION 10.5. Severability..............................................29
SECTION 10.6. Separate Counterparts.....................................29
SECTION 10.7. Successors and Assigns....................................29
SECTION 10.8. No Petition...............................................29
SECTION 10.9. No Recourse...............................................29
SECTION 10.10. Headings..................................................29
SECTION 10.11. GOVERNING LAW.............................................29
EXHIBIT A FORM OF CLASS B CERTIFICATE.................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST................................B-1
APPENDIX A Definitions and Usage..............................Appendix A-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________, 200_ (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), between USAA ACCEPTANCE, LLC, a Delaware limited liability
company, as Depositor, having its principal office at 0000 Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000; and __________, a __________ (the "Bank"),
not in its individual capacity but solely as trustee under this Agreement (in
such capacity, the "Owner Trustee"), having its principal corporate trust
office at __________ for the purpose of establishing the USAA Auto Owner Trust
200_-[ ].
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of _________, 200_, between the Depositor and the
Owner Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined in
Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "USAA
Auto Owner Trust 200_-[ ]", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2. Offices. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is, and
the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, hold and manage the Trust Property;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement upon the written order of the
Depositor;
(iii) in exchange for the Notes and the Certificates, to
acquire the Receivables and funds in the amount of the Reserve Initial
Deposit, to pay the organizational, start-up and transactional
expenses of the Trust, and to pay the balance to the Depositor
pursuant to the Sale and Servicing Agreement;
(iv) to pay interest on and principal of the Notes and
interest and distributions on the Certificates;
(v) to Grant the Owner Trust Estate (other than the
Certificate Distribution Account and the proceeds thereof) to the
Indenture Trustee pursuant to the Indenture;
(vi) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of interest and
principal payments to the Noteholders and interest payments and
distributions to the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Upon the execution of this
Agreement, the Owner Trustee shall continue as trustee of the Trust, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Capital Contribution of Owner Trust Estate. As of
_______, 200__, the Depositor sold, assigned and transferred to the Owner
Trustee the sum of $1. The Owner Trustee hereby acknowledges receipt in trust
from the Depositor, as of such date, the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay the organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee. On the Closing Date, the Depositor shall convey to the Trust the
Trust Property and the Reserve Initial Deposit and the Owner Trustee shall
cause the delivery to or upon the order of the Depositor the Notes and the
Certificates.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that (i) the Trust constitute a statutory trust
under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) for income and franchise
tax purposes, the Trust shall be treated as a
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partnership, with the assets of the partnership being the Receivables and other
assets held by the Trust, the partners of the partnership being the
Certificateholders and the Depositor, and the Notes constituting indebtedness
of the partnership. The parties agree that, unless otherwise required by the
appropriate tax authorities, the Trust will file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee has filed the
Certificate of Trust with the Secretary of State.
SECTION 2.7. Liability of the Depositor and the Certificateholders.
Neither the Depositor (except as otherwise provided herein) nor any
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to the entirety of
the Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity, except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust shall be administered by the
Owner Trustee in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any state
other than the State of Delaware; provided, however, that nothing herein shall
restrict or prohibit the Bank, the Depositor or the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received by
the Trust only in Delaware or New York, and payments will be made by the Trust
only from Delaware or New York. The principal office of the Trust shall be in
care of the Owner Trustee in the State of Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly formed and validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is presently conducted.
(b) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms, and the Depositor has full power and
authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary limited liability company
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary limited liability company
action.
(c) The Depositor has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against
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the Depositor, in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the enforcement of creditors' rights in general and by general
equitable principles, regardless of whether such enforceability is considered
in a proceeding at law or in equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under, the limited
liability company agreement of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound,
(ii) result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents) or (iii) violate any
law or, to the best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties (i) asserting the invalidity of this
Agreement, the Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or Applicable Tax State franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent
of the Depositor and the Servicer that, for purposes of federal income, state
and local income and franchise tax and any other income taxes, the Trust will
be treated as a partnership and the Certificateholders and the Depositor will
be treated as partners in that partnership. The Depositor hereby agrees and the
Certificateholders by acceptance of a Certificate agree to such treatment and
each agrees to take no action inconsistent with such treatment. For purposes of
federal income, State and local income and franchise tax and any other income
taxes each month:
(a) gross ordinary income of the Trust for such month as
determined for federal income tax purposes shall be allocated among
the Certificateholders as of the Record Date occurring within such
month, in proportion to their ownership of the Certificate Balance on
such date, in an amount up to the sum of (i) the Accrued Class B
Certificate Interest, (ii) the portion of the market discount on the
Receivables accrued during such month that is allocable to the excess,
if any, of the aggregate Initial Certificate Balance over the initial
aggregate issue price of the Certificates, (iii) prepayment premium
payable to the Certificateholders for such month and (iv) any other
amounts of income payable to the Certificateholders for such month;
and
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(b) thereafter all remaining net income of the Trust (subject
to the modifications set forth below) for such month as determined for
federal income tax purposes (and each item of income, gain, credit,
loss or deduction entering into the computation thereof) shall be
allocated to the Depositor, to the extent thereof.
If the gross ordinary income of the Trust for any month is insufficient for the
allocations described in paragraph (a) above, subsequent gross ordinary income
shall first be allocated to make up such shortfall before any allocation
pursuant to paragraph (b) above. Net losses of the Trust, if any, for any month
as determined for federal income tax purposes (and each item of income, gain,
credit, loss or deduction entering into the computation thereof) shall be
allocated to the Depositor to the extent the Depositor is reasonably expected
to bear the economic burden of such net losses, and any remaining net losses
shall be allocated among the Certificateholders as of the Record Date occurring
within such month in proportion to their ownership of the Certificate Balance
on such Record Date. The Trust is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the
Certificateholders, or as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until
the issuance of the Certificates, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 3.2. The Certificates. (a) The Certificates shall be issued as
Book-Entry Certificates, substantially in the form set forth in Exhibit A, in
minimum denominations of $1,000 and in integral multiples of $1,000 in excess
thereof.
(b) The Certificates shall be executed on behalf of the Trust by the
Owner Trustee by manual or facsimile signature of an authorized officer of the
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Owner Trustee, shall be validly issued and
entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of authentication and delivery of such Certificates.
(c) A transferee of a Certificate shall become a Certificateholder,
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.4.
(d) Plans and persons investing on behalf of or with "plan assets" of
Plans may not acquire the Certificates. An insurance company using the assets
of its general account that include "plan assets" may purchase the Certificates
if:
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(i) such insurance company is able to represent that, as of
the date it acquires an interest in the Certificates, less than 25% of
the assets of such general account constitute "plan assets" for
purposes of Title I of ERISA and Section 4975 of the Code;
(ii) such insurance company agrees that if at any time during
any calendar quarter while it is holding an interest in the
Certificates, 25% or more of the assets of such general account
constitute "plan assets" for purposes of Title I of ERISA and Section
4975 of the Code, and if, at that time, no exemption or exception
applies to the continued holding of the Certificates under ERISA, such
insurance company will dispose of the Certificates then held in its
general account; and
(iii) the purchase satisfies the conditions for relief under
PTCE 95-60.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificates, in an aggregate
principal balance equal to the Initial Certificate Balance, to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Depositor, without further action by the Depositor, in authorized
denominations. No Certificate shall entitle its Certificateholder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A hereto, executed by the Owner Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates. (a)The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 3.8, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Owner Trustee shall be the
initial Certificate Registrar. No transfer of a Certificate shall be recognized
except upon registration of such transfer in the Certificate Register.
(b) With respect to each transfer of a Certificate, the prospective
transferee Certificate Owner shall be deemed to represent the following:
(i) Either:
(A) (x) for the entire period during which such purchaser or
transferee holds its interest in the Certificates, no portion
of such purchaser's or transferee's assets constitutes assets
of any "employee benefit plan" within the meaning of Section
3(3) of ERISA, whether or not subject to Title I of ERISA,
including any U.S. governmental or non-U.S. pension plan, or
any "plan" subject to Section 4975 of the Code (each, a
"Covered Plan") or
(B) (1) the assets used by such purchaser or transferee to
acquire the Certificates (or any interest therein) constitute
assets of an insurance company general account, (2) for the
entire period during which such purchaser or transferee holds
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its interest in the Certificates, less than 25% of the assets
of such insurance company general account will constitute
"plan assets" of any Covered Plan and (3) the acquisition and
holding of the Certificates by such purchaser or transferee
will satisfy the requirements of XXXX 00-00 and will not
constitute a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code or a violation of
any applicable Similar Law.
(ii) It is, and each account (if any) for which it is
purchasing Certificates is, a Person who is (A) a citizen or resident
of the United States, (B) a corporation or partnership organized in or
under the laws of the United States, any state thereof or the District
of Columbia, (C) an estate the income of which is includible gross
income for United States tax purposes, regardless of its source, (D) a
trust with respect to which a U.S. court is able to exercise primary
supervision over the administration of such trust and one or more
Persons meeting the conditions of clause (A), (B), (C) or (E) of this
paragraph (ii) has the authority to control all substantial decisions
of the trust or (E) a Person not described in clauses (A) through (D)
above whose ownership of Certificates is effectively connected with
such Person's conduct of a trade or business within the United States
(within the meaning of the Code) and who provides the Owner Trustee
and the Depositor with an IRS Form W-8 ECI (and such other
certifications, representations, or opinions of counsel as may be
requested by the Owner Trustee or the Depositor).
(iii) It understands that any purported transfer of any
Certificate (or any interest therein) to any Person who does not meet
the conditions of paragraphs (i) and (ii) above shall be, to the
fullest extent permitted by law, void ab initio, and the purported
transferee in such a transfer shall not be recognized by the Trust or
any other Person as a Certificateholder for any purpose.
(c) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8 and upon compliance
with any provisions of this Agreement relating to such transfer, the Owner
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations and aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. At the option of a
Certificateholder, Certificates may be exchanged for other Certificates of
authorized denominations and aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the related Certificateholder or such Certificateholder's attorney
duly authorized in writing, with such signature guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or trust company. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum
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sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The preceding provisions of this Section 3.4 notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar need not register
any transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Payment Date for any payment with respect to the Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice that such Certificate has been acquired by a protected purchaser, the
Owner Trustee on behalf of the Trust shall execute and the Owner Trustee shall
authenticate and deliver, in exchange for, or in lieu of, any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate, of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 3.5 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving interest or
distributions pursuant to this Agreement and for all other purposes whatsoever,
and none of the Owner Trustee, the Certificate Registrar or any Certificate
Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Certificate Paying Agent and the Depositor, or to the Indenture
Trustee, within fifteen (15) days after receipt by the Owner Trustee of a
written request therefor from the Servicer, the Certificate Paying Agent or the
Depositor, or the Indenture Trustee, as the case may be, a list, in such form
as the requesting party may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date. The Certificate
Registrar shall also furnish to the Owner Trustee and the Paying Agent a copy
of such list at any time there is a change therein. If three or more
Certificateholders or one or more holders of Certificates evidencing not less
than 25% of the Certificate Balance apply in writing to the Owner Trustee, and
such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the
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Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the State of Delaware, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee initially
designates its Corporate Trust Office as its principal corporate trust office
for such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Certificate Paying Agent. The Certificate
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Certificate Paying Agent shall
initially be the Owner Trustee. The Certificate Paying Agent shall be permitted
to resign as Certificate Paying Agent upon thirty (30) days' written notice to
the Owner Trustee. In the event that the Owner Trustee shall no longer be the
Certificate Paying Agent, the Owner Trustee shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Certificate Paying Agent to execute and
deliver to the Owner Trustee an instrument in which such successor Certificate
Paying Agent shall agree with the Owner Trustee that as Certificate Paying
Agent, such successor Certificate Paying Agent will hold all sums, if any, held
by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Certificate Paying Agent shall return all unclaimed
funds to the Owner Trustee and upon removal of a Certificate Paying Agent such
Certificate Paying Agent shall also return all funds in its possession to the
Owner Trustee. The provisions of Sections 6.7, 6.9, 6.10, 7.1 and 7.2 shall
apply to the Certificate Paying Agent. The Owner Trustee may appoint a
co-paying agent. Any reference in this Agreement to the Certificate Paying
Agent shall include any co-paying agent appointed by the Owner Trustee unless
the context requires otherwise.
SECTION 3.10. Certain Rights of Depositor. The Depositor shall be
entitled to any amounts not needed on any Payment Date to make payments on the
Notes or the Certificates or to make deposits to the Reserve Account pursuant
to Section 4.6 of the Sale and Servicing Agreement, and to receive amounts
remaining in the Reserve Account following the payment in full of the aggregate
principal amount of the Notes and the Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the Sale
and Servicing Agreement to Noteholders and Certificateholders and the
termination of the Trust. The Depositor may not transfer any such rights in the
Reserve Account unless (i) the Owner Trustee and the Indenture Trustee shall
have received an Opinion of Counsel that such transfer shall not cause the
Trust to be classified as an association (or publicly traded partnership)
taxable as a
9
corporation, (ii) the transferee agrees in writing to take positions for
federal income tax purposes consistent with the federal income tax positions
previously taken by the Depositor and (iii) the Rating Agency Condition is
satisfied.
SECTION 3.11. Book-Entry Certificates. The Certificates, upon original
issuance, shall be issued in the form of typewritten Certificate or
Certificates representing the Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust. The Book-Entry Certificate or Certificates shall be registered initially
on the Certificate Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificate Owner thereof shall receive a
Definitive Certificate (as defined below) representing such Certificate Owner's
beneficial interest in such Certificate, except as provided in Section 3.13.
Unless and until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued to Certificate Owners pursuant to Section 3.13:
(i) the provisions of this Section 3.11 shall be in full
force and effect;
(ii) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of interest and distributions on the
Book-Entry Certificates and the giving of instructions or directions
hereunder) as the sole Certificateholder, and shall have no obligation
to the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions
of this Section 3.11 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants pursuant to the Note
Depository Agreement;
(v) the initial Clearing Agency shall make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Book-Entry
Certificates to such Clearing Agency Participants; and
(vi) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of holders of
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Certificate Balance and
has delivered such instructions to the Owner Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to the holders of Certificates is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the
Certificate Owners pursuant to Section 3.13, the Owner Trustee shall give all
such notices and communications specified herein to be given to holders of
Certificates to the Clearing Agency, and shall have no obligation to such
Certificate Owners.
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SECTION 3.13. Definitive Certificates. With respect to any Book-Entry
Certificates, if (i) the Administrator advises the Owner Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Book-Entry Certificates and the
Administrator is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Owner Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or an Event of Servicing
Termination, Certificate Owners with respect to Book-Entry Certificates
evidencing beneficial interests aggregating not less than a majority of the
Certificate Balance advise the Owner Trustee and the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Owners, then the Clearing
Agency shall notify all Certificate Owners and the Owner Trustee of the
occurrence of such event and of the availability of Definitive Certificates to
the Certificate Owners. Upon surrender to the Owner Trustee of the typewritten
Certificate or Certificates representing the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions, the Owner Trustee
shall execute, authenticate and deliver the Definitive Certificates in
accordance with the written instructions of the Clearing Agency. None of the
Trust, the Certificate Registrar or the Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates to Certificate Owners, the Owner Trustee shall recognize the
holders of such Definitive Certificates as Certificateholders.
SECTION 3.14. Authenticating Agents. (a) The Owner Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Certificates in
connection with issuance, transfers and exchanges under Sections 3.3, 3.4 and
3.5, as fully to all intents and purposes as though each such Authenticating
Agent had been expressly authorized by those Sections to authenticate such
Certificates. For all purposes of this Agreement, the authentication of
Certificates by an Authenticating Agent pursuant to this Section 3.14 shall be
deemed to be the authentication of Certificates "by the Owner Trustee."
(b) Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Owner Trustee and the Depositor. The Owner Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent, the Servicer and
the Depositor. Upon receiving such notice of resignation or upon such a
termination, the Owner Trustee may appoint a successor Authenticating Agent and
shall give written notice of any such appointment to the Depositor and the
Servicer.
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(d) The Servicer, pursuant to the Sale and Servicing Agreement, agrees
to pay to each Authenticating Agent from time to time reasonable compensation
for its services. The provisions of Section 6.4 shall be applicable to any
Authenticating Agent.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. It is the intention of the Depositor and the
Certificateholders that the powers and duties of the Owner Trustee are
ministerial only and that any non-ministerial action (including the taking of
any legal action) may only be taken by the Owner Trustee in accordance with
this Section 4.1. With respect to the following matters, the Owner Trustee
shall not take action unless, (i) at least thirty (30) days before the taking
of such action, the Owner Trustee shall have notified the Certificateholders of
record as of the preceding Record Date and the Rating Agencies in writing of
the proposed action and (ii) Certificateholders holding not less than a
majority of the Certificate Balance shall not have notified the Owner Trustee
in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought by the Servicer in connection with the
collection of the Receivables) and the settlement of any material action, claim
or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection by the Servicer of the
Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of the
Certificateholders; or
(e) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or to add any provision that
would not materially adversely affect the interests of the Certificateholders.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of an Event of
Servicing Termination subsequent to the payment in full of the Notes and in
accordance with the written direction of Certificateholders holding not less
than a majority of the Certificate Balance, (a) remove the Servicer under the
Sale and Servicing Agreement pursuant to Article VII thereof, (b) appoint a
successor Servicer pursuant to Article VII of the Sale and Servicing Agreement,
(c) remove the
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Administrator under the Administration Agreement pursuant to Section 9 thereof
or (d) appoint a successor Administrator pursuant to Section 9 of the
Administration Agreement.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust unless the Notes have been paid in full and
each Certificateholder (other than the Depositor) approves of such commencement
in advance and delivers to the Owner Trustee a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
other Basic Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Certificateholders holding not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.
Pursuant to Section 4.1(c) of the Sale and Servicing Agreement, there has been
established and there shall be maintained an Eligible Deposit Account, in the
name of the Trust, initially at the corporate trust department of the Bank,
which shall be designated as the "Certificate Distribution Account." Except as
expressly provided in Section 3.9, the Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee. All monies
deposited from time to time in the Certificate Distribution Account pursuant to
the Sale and Servicing Agreement shall be applied as provided in the Basic
Documents. In the event that the Certificate Distribution Account is no longer
to be maintained at the corporate trust department of the Bank, the Servicer
shall, with the Owner Trustee's assistance as necessary, cause an Eligible
Account to be established as the Certificate Distribution Account within ten
(10) Business Days (or such longer period not to exceed thirty (30) days as to
which each Rating Agency may consent). The Certificate Distribution Account
shall be established and maintained pursuant to an account agreement which
specifies New York law as the governing law.
SECTION 5.2. Application of Trust Funds. (a) On each Payment Date, the
Owner Trustee shall, based on the information contained in the Servicer's
Certificate delivered on the relevant Determination Date pursuant to Section
3.9 of the Sale and Servicing Agreement withdraw the amounts deposited into the
Certificate Distribution Account pursuant to Sections 4.6(c) (if applicable)
and 4.6(d) of the Sale and Servicing Agreement or, if applicable, Section
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5.4(b) of the Indenture on or prior to such Payment Date and make or cause to
be made distributions and payments in the following order of priority:
(i) first, to the Certificateholders, an amount equal to the
Accrued Class B Certificate Interest, provided that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class B Certificate Interest, the amounts available shall be applied
to the payment of such interest on the Certificates on a pro rata
basis; and
(ii) second, to the Certificateholders in reduction of the
Certificate Balance, until the Certificate Balance has been reduced to
zero; provided that if there are not sufficient funds available to
reduce the Certificate Balance to zero, the amounts available shall be
applied among Certificateholders to the reduction of the Certificate
Balance on a pro rata basis.
(b) On each Payment Date, the Owner Trustee shall, or shall cause the
Certificate Paying Agent to, send to each Certificateholder as of the related
Record Date the statement provided to the Owner Trustee by the Servicer
pursuant to Section 4.9 of the Sale and Servicing Agreement with respect to
such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section 5.2. The Owner Trustee and each Certificate Paying
Agent is hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of any
such withholding tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee or any Certificate Paying Agent from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Owner Trustee or any Certificate Paying Agent may, in its sole discretion,
withhold such amounts in accordance with this paragraph (c). In the event that
a Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 8.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (i) such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five (5) Business Days
prior to such Payment Date and such Certificateholder's Certificates in the
aggregate evidence a denomination of not less than $1,000,000, or (ii) such
Certificateholder is the Depositor or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register.
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Notwithstanding the foregoing, the final distribution in respect of any
Certificate (whether on the applicable Final Scheduled Payment Date or
otherwise) will be payable only upon presentation and surrender of such
Certificate at the office or agency maintained for that purpose by the Owner
Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law, the Indenture
or the Sale and Servicing Agreement, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.5. Accounting and Reports to Noteholders,
Certificateholders, Internal Revenue Service and Others. The Trust shall, based
on information provided by or on behalf of the Depositor, (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis on the
accrual method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder, as may be required by the Code, such information as may be
required (including Schedule K-1) to enable each Certificateholder to prepare
its federal and State income tax returns, (c) file (or cause to be filed) such
tax returns relating to the Trust (including a partnership information return,
IRS Form 1065), and make such elections, as may from time to time be required
or appropriate under any applicable State or federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect (or cause to be collected)
any withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. The Trust shall elect
under Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Receivables. The Trust shall not make
the election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The
Servicer shall prepare (or cause to be prepared) and the Depositor shall sign,
on behalf of the Trust, the tax returns of the Trust, if any, unless applicable
law requires a Certificateholder to sign such documents.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust the Basic Documents to
which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is to be a party and any amendment or other agreement, in each case, in
such form as the Depositor shall approve, as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of this
Agreement, and to direct the Indenture Trustee to authenticate and deliver (i)
Class [ ] Notes in the aggregate principal amount
15
of $__________, (ii) Class [ ] Notes in the aggregate principal amount of
$_________, (iii) Class [ ] Notes in the aggregate principal amount of
$__________ and (iv) Class [ ] Notes in the aggregate principal amount of
$__________. In addition to the foregoing, the Owner Trustee is authorized to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action on
behalf of the Trust as is permitted by the Basic Documents and which the
Servicer or the Administrator directs with respect to the Basic Documents,
except to the extent that this Agreement expressly requires the consent of
Certificateholders for such action.
SECTION 6.2. General Duties. Subject to Section 4.1 hereof, it shall
be the duty of the Owner Trustee to discharge (or cause to be discharged) all
of its responsibilities pursuant to the terms of this Agreement and the other
Basic Documents to which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to the Lien of the Indenture
and in accordance with the provisions of this Agreement and the other Basic
Documents. Notwithstanding anything else to the contrary in this Agreement, the
Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement to perform any act or
to discharge such duty of the Owner Trustee or the Trust hereunder or under any
other Basic Document, and the Owner Trustee shall not be held liable for the
default or failure of the Administrator to carry out its obligations under the
Administration Agreement. Except as expressly provided in the Basic Documents,
the Owner Trustee shall have no obligation to administer, service or collect
the Receivables or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and
in accordance with the terms of the Basic Documents, the Certificateholders
may, by written instruction, direct the Owner Trustee in the management of the
Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
16
(d) In the event the Owner Trustee is unsure as to the application of
any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agreement or any other Basic
Document. Notwithstanding any Person's right to instruct the Owner Trustee,
neither the Owner Trustee nor any agent, employee, director or officer of the
Owner Trustee shall have any obligation to execute any certificates or other
documents required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or the rules and
regulations promulgated thereunder, and the refusal to comply with any such
instructions shall not constitute a default or breach under any Basic Document.
The Owner Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Lien
(other than the Lien of the Indenture) on any part of the Owner Trust Estate
that results from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Basic Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders shall
direct the Trustee to take any action that would violate the provisions of this
Section 6.5.
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SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.3 or (b) that, to the actual knowledge of the Owner Trustee, would (i) affect
the treatment of the Notes as indebtedness for federal income or Applicable Tax
State income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for federal income or Applicable Tax State income or
franchise tax purposes or (iii) cause the Trust or any portion thereof to be
taxable as an association (or publicly traded partnership) taxable as a
corporation for federal income or Applicable Tax State income or franchise tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.6.
SECTION 6.7. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents to which the Owner Trustee is a party. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.9 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the instructions of any Certificateholder, the Indenture Trustee,
the Depositor, the Administrator or the Servicer;
(c) no provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of
its rights or powers hereunder or under any other Basic Document if
the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or
amounts payable or distributable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust
Estate, or for or in respect of the validity or sufficiency of the
other Basic Documents, other than the certificate of authentication on
the Certificates, and the Owner Trustee shall in no event assume or
incur any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in
the other Basic Documents;
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(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Depositor or the
Indenture Trustee under any of the Basic Documents or otherwise and
the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the
Indenture or the Depositor or the Servicer under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this Agreement
or otherwise or in relation to this Agreement or any other Basic
Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the
Owner Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby.
The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its willful misconduct, bad faith or negligence in the performance of any
such act.
SECTION 6.8. Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.9. Representations and Warranties. (a) The Owner Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware State law, governmental rule
or regulation governing the banking or trust powers of the Owner
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
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SECTION 6.10. Reliance; Advice of Counsel. (a) The Owner Trustee may
rely upon, shall be protected in relying upon, and shall incur no liability to
anyone in acting upon, any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a resolution
of the board of directors or other governing body of any party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice of
any such counsel, accountants or other such Persons and not contrary to this
Agreement or any other Basic Document.
SECTION 6.11. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created, __________ acts solely
as Owner Trustee hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.12. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, of any
other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or the Notes, or of
any Receivable or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to be distributed to Certificateholders under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, condition
and ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any computer
or other record thereof; the validity of the assignment of any Receivable to
the Trust or any intervening assignment; the completeness of any Receivable;
the performance or enforcement of any Receivable; the
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compliance by the Depositor or the Servicer with any warranty or representation
made under any Basic Document or in any related document, or the accuracy of
any such warranty or representation, or any action of the Indenture Trustee,
the Administrator or the Servicer or any subservicer taken in the name of the
Owner Trustee.
SECTION 6.13. Owner Trustee May Own Certificates and Notes.
__________, in its individual or any other capacity, may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the Servicer,
the Administrator and the Indenture Trustee in banking transactions with the
same rights as they would have if it was not the Owner Trustee.
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Servicer, pursuant
to the Sale and Servicing Agreement, shall pay to the Owner Trustee as
compensation for its services hereunder such fees as have been separately
agreed upon prior to the date hereof between the Servicer and the Owner
Trustee, and the Servicer pursuant to the Sale and Servicing Agreement shall
reimburse the Owner Trustee for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee pursuant to the Sale
and Servicing Agreement.
SECTION 7.2. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust. (a) The Trust shall dissolve
and wind up, (i) upon the maturity or other liquidation of the last remaining
Receivable and the disposition of any amounts received upon such maturity or
liquidation, (ii) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement, Article V and Section
8.2, or (iii) upon the entry of an order for the dissolution of the Trust from
a court of competent jurisdiction. Any Insolvency Event, liquidation,
dissolution, death or incapacity with respect to any Certificateholder or
Certificate Owner shall not (x) operate to terminate this Agreement or dissolve
and/or terminate the Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate nor (z) otherwise affect the rights, obligations
and liabilities of the parties hereto. Upon dissolution of the Trust, the Owner
Trustee shall wind up the business and affairs of the Trust as required by
Section 3808 of the Statutory Trust Statute.
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(b) Except as provided in Section 8.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates to
the Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice of
such dissolution from the Servicer, stating (i) the Payment Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein designated, (ii) the amount of any such final payment
(after reservation of sums sufficient to pay all claims and obligations, if
any, known to the Owner Trustee and payable by the Trust) and (iii) that the
Record Date otherwise applicable to such Payment Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Certificate Paying Agent therein specified. The Owner Trustee
shall give such notice to the Certificate Registrar (if other than the Owner
Trustee) and the Certificate Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.2. Upon the
satisfaction and discharge of the Indenture, and receipt of a certificate from
the Indenture Trustee stating that all Noteholders have been paid in full and
that the Indenture Trustee is aware of no claims remaining against the Trust in
respect of the Indenture and the Notes, the Owner Trustee, in the absence of
actual knowledge of any other claim against the Trust, shall be deemed to have
made reasonable provision to pay all claims and obligations (including
conditional, contingent or unmatured obligations) for purposes of Section
3808(e) of the Statutory Trust Statute.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six (6) months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable
escheat laws, any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Statutory Trust Statute whereupon the
Trust and this Agreement shall terminate.
SECTION 8.2. Prepayment of Certificates. (a) The Certificates shall be
prepaid in whole, but not in part, at the direction of the Servicer pursuant to
Section 8.1 of the Sale and Servicing Agreement, on any Payment Date on which
the Servicer exercises its option to purchase the assets of the Trust pursuant
to said Section 8.1, and the amount paid by the Servicer shall be treated as
collections of Receivables and applied to pay the unpaid principal amount of
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the Notes and the Certificate Balance plus accrued and unpaid interest
(including any overdue interest, to the extent lawful) thereon. The Servicer
shall furnish the Rating Agencies and the Owner Trustee notice of such
prepayment. If the Certificates are to be prepaid pursuant to this Section
8.2(a), the Servicer shall furnish notice of such election to the Owner Trustee
not later than forty (40) days prior to the Prepayment Date and the Trust shall
deposit by 10:00 A.M. (New York City time) on the Prepayment Date in the
Certificate Distribution Account the Prepayment Price of the Certificates to be
redeemed, whereupon all such Certificates shall be due and payable on the
Prepayment Date.
(b) Notice of prepayment under Section 8.2(a) shall be given by the
Owner Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted immediately following receipt of notice from the Trust or Servicer
pursuant to Section 8.2(a), but not later than thirty (30) days prior to the
applicable Prepayment Date, to each Certificateholder as of the close of
business on the Record Date preceding the applicable Prepayment Date, at such
Certificateholder's address or facsimile number appearing in the Certificate
Register.
All notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to be surrendered for
payment of the Prepayment Price (which shall be the office or agency of the
Owner Trustee to be maintained as provided in Section 3.8).
Notice of prepayment of the Certificates shall be given by the Owner
Trustee in the name and at the expense of the Trust. Failure to give notice of
prepayment, or any defect therein, to any Certificateholder shall not impair or
affect the validity of the prepayment of any other Certificate.
(c) Following notice of prepayment as required by Section 8.2(b), the
Certificates shall on the Prepayment Date be paid by the Trust at the
Prepayment Price and (unless the Trust shall default in the payment of the
Prepayment Price) no interest shall accrue on the Prepayment Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Prepayment Price.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee. (a) The Owner
Trustee shall at all times (i) be authorized to exercise corporate trust
powers; (ii) have a combined capital and surplus of at least $50,000,000 and
shall be subject to supervision or examination by federal or state authorities;
and (iii) shall have (or shall have a parent that has) a long-term debt rating
of investment grade by each of the Rating Agencies or be otherwise acceptable
to the Rating Agencies. If such corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose
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of this Section 9.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.1, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.2.
(b) The Owner Trustee shall at all times be a corporation satisfying
the provisions of Section 3807(a) of the Statutory Trust Statute.
SECTION 9.2. Resignation or Removal of Owner Trustee. (a) The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the
applicable successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Owner Trustee; provided, however, that such right to appoint or to petition for
the appointment of any such successor shall in no event relieve the resigning
Owner Trustee from any obligations otherwise imposed on it under the Basic
Documents until such successor has in fact assumed such appointment.
(b) If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 or resigns pursuant to Section
9.2 of this Agreement and the ineligible or non-resigning Owner Trustee shall
fail to resign after written request therefor by the Administrator, or if at
any time the Owner Trustee shall be legally unable to act, or if at any time an
Insolvency Event with respect to the Owner Trustee shall have occurred and be
continuing, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the
outgoing Owner Trustee.
(c) Any resignation or removal of an Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section 9.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3, payment of all fees and expenses owed to
the outgoing Owner Trustee and the filing of a certificate of amendment to the
Certificate of Trust if required by the Statutory Trust Statute. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to the Certificateholders, the Indenture Trustee, the Noteholders and
each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. (a) Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement. Upon the resignation or removal of the
predecessor Owner Trustee becoming effective pursuant to Section 9.2, such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties, and obligations of its
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predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall, upon payment of its fees
and expenses, deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement, and the Administrator
and the predecessor Owner Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties, and obligations.
(b) No successor Owner Trustee shall accept appointment as provided in
this Section 9.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 9.1.
(c) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 9.3, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Servicer, the
Indenture Trustee, the Noteholders and the Rating Agencies. If the
Administrator shall fail to mail such notice within ten (10) days after
acceptance of such appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
(d) Any successor Owner Trustee appointed hereunder shall file the
amendments to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Owner Trustee in the
State of Delaware.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 9.1; and
provided further, that (i) the Owner Trustee shall mail notice of such merger
or consolidation to the Rating Agencies not less than fifteen (15) days prior
to the effective date thereof and (ii) the Owner Trustee shall file an
amendment to the Certificate of Trust as required by Section 9.3.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person, in such capacity, such title to the Owner
Trust Estate, or any part thereof, and, subject to the other provisions of this
Section 9.5, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within fifteen (15)
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of
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eligibility as a successor trustee pursuant to Section 9.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.3.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 9.6. Compliance with Statutory Trust Statute. Notwithstanding
anything herein to the contrary, the Trust shall at all times have at least one
trustee which meets the requirements of Section 3807(a) of the Statutory Trust
Statute.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating Agencies and the Indenture Trustee, without the consent of any of
the Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement inconsistent with any other
provision of this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel satisfactory to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder; and provided further that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that
such amendment (A) will not materially adversely affect the federal or any
Applicable Tax State income or franchise taxation of any outstanding Note or
Certificate, or any Noteholder or Certificateholder and (B) will not cause the
Trust to be taxable as a corporation for federal or any Applicable Tax State
income or franchise tax purposes.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies and the Indenture Trustee, with the consent of (i) the holders of
Notes evidencing not less than a majority of the principal amount of the Notes
Outstanding and (ii) the holders of Certificates evidencing not less than a
majority of the Certificate Balance, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments on
Receivables or distributions that are required to be made for the benefit of
the Noteholders or the Certificateholders, or (ii) reduce the aforesaid
percentage of the principal amount of the Notes Outstanding and the Certificate
Balance required to consent to any such amendment, without the consent of all
the Noteholders and Certificateholders affected thereby; and provided further,
that an Opinion of Counsel shall be furnished to the Indenture Trustee and the
Owner Trustee to the effect that such amendment (A) will not materially
adversely affect the federal or any Applicable Tax State income or franchise
taxation of any outstanding Note or Certificate, or any Noteholder or
Certificateholder and (B) will not cause the Trust to be taxable as a
corporation for federal or any Applicable Tax State income or franchise tax
purposes.
(c) Promptly after the execution of any such amendment, the Owner
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section 10.1 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
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evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this
Agreement or any amendment to any other agreement to which the Trust is a
party, the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the Basic
Documents for the execution and delivery thereof by the Trust or the Owner
Trustee, as the case may be, have been satisfied.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholders. Neither the Depositor nor the Certificateholders shall have
legal title to any part of the Owner Trust Estate. The Certificateholders shall
be entitled to receive distributions with respect to their beneficial interests
therein only in accordance with Articles V and VIII. No transfer, by operation
of law or otherwise, of any right, title, or interest of the Certificateholders
to and in their beneficial interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 10.3. Limitation on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Administrator, the Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 10.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three (3) Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the respective Corporate
Trust Office; if to the Depositor, addressed to USAA Acceptance, LLC at the
address of its principal executive office first above written; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the
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Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not such Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement or the
Certificates that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
thereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 10.8. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), and the Depositor solely in relation to
the Trust, by entering into this Agreement, and each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that it will not, until
after the Notes have been paid in full, institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the other Basic Documents.
SECTION 10.9. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof, and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the other Basic
Documents.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
29
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
USAA ACCEPTANCE, LLC,
as Depositor
By: ___________________
Name:
Title:
----------,
as Owner Trustee
By: ___________________
Name:
Title:
30
EXHIBIT A
FORM OF CLASS [ ] CERTIFICATE
[FOR BOOK-ENTRY CERTIFICATES] [UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS CERTIFICATE IS PAYABLE IN INSTALLMENTS AS SET
FORTH IN THE TRUST AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
NUMBER $
B-__ CUSIP NO. [ ]
USAA AUTO OWNER TRUST 200_-[ ]
CLASS [ ] [o]% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the Trust, as defined below. The property
of the Trust includes a pool of motor vehicle retail installment loans, secured
by security interests in the motor vehicles financed thereby, conveyed by USAA
Acceptance, LLC to the Trust. The property of the Trust has been pledged to the
Indenture Trustee pursuant to the Indenture to secure the payment of the Notes
issued thereunder.
(This Certificate is not a deposit, does not represent an interest in or
obligation of USAA Federal Savings Bank or any of its Affiliates and is not
insured by the Federal Deposit Insurance Corporation or any other entity.)
THIS CERTIFIES THAT ___________ is the registered owner of
____________ ______________ dollars certificate principal balance of Class [ ]
[o]% Asset Backed Certificates of USAA Auto Owner Trust 200_-[ ] (the "Trust")
formed by USAA Acceptance, LLC, a Delaware limited liability company (the
"Depositor").
The Trust is governed pursuant to an Amended and Restated Trust
Agreement, dated as of _________, 200_ (as from time to time amended,
supplemented or otherwise modified and in
A-1
effect, the "Trust Agreement"), between the Depositor and
_____________________, a ______________, not in its individual capacity but
solely as owner trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned
to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated
as "Class [ ] [o]% Asset Backed Certificates" (herein called the "Class B
Certificates" or "Certificates") which are issued under and are subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such Certificateholder is bound. Also issued under the
Indenture, dated as of ___________, 200_ (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Trust and ______________, as indenture trustee (in such capacity, the
"Indenture Trustee"), are the Notes designated as "Class [ ] [o]% Asset Backed
Notes", "Class [ ] [o]% Asset Backed Notes", "Class [ ] [o]% Asset Backed
Notes" and "Class [ ] [o]% Asset Backed Notes" (collectively, the "Notes"). The
property of the Trust includes (i) a pool of motor vehicle retail installment
loans for new and used automobiles and light trucks and certain rights and
obligations thereunder (the "Receivables"); (ii) monies received thereunder on
or after the Cut-off Date; (iii) security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of the
Trust in the Financed Vehicles; (iv) rights to proceeds with respect to the
Receivables from claims on theft, physical damage, credit life, credit
disability or other insurance policies covering Financed Vehicles or Obligors;
(v) all of the Seller's rights to the Receivable Files; (vi) such amounts as
from time to time may be held in one or more accounts maintained pursuant to
the Sale and Servicing Agreement, dated as of __________, 200_ (as from time to
time amended, supplemented or otherwise modified and in effect, the "Sale and
Servicing Agreement"), by and among the Trust, the Depositor, and USAA Federal
Savings Bank, as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"); (vii) payments and proceeds with respect to the
Receivables held by the Servicer; (viii) all property (including the right to
receive Liquidation Proceeds) securing a Receivable (other than a Receivable
repurchased by the Servicer or purchased by the Seller); (ix) rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cut-off Date; and (x) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing. THE RIGHTS OF THE TRUST IN THE FOREGOING
PROPERTY OF THE TRUST HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE
PAYMENT OF THE NOTES.
Under the Trust Agreement, there will be distributed on the 15th day
of each month, or if such 15th day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing ____________, 200_, to the Person in whose
name this Certificate is registered at
A-2
the close of business on the last day of the preceding month (the "Record
Date") such Certificateholder's percentage interest in the amount to be
distributed to Class B Certificateholders on such Payment Date pursuant to the
Trust Agreement. Following the occurrence and during the continuation of
certain events of default under the Indenture which result in an acceleration
of the Notes, no distributions or interest will be made on the Certificates
until all principal and interest on the Notes has been paid in full.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS
TO RECEIVE DISTRIBUTIONS AND INTEREST IN RESPECT OF THIS CERTIFICATE ARE
SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT, THE INDENTURE AND THE TRUST AGREEMENT.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not, until after the Notes have
been paid in full, institute against the Trust, or join in any institution
against the Trust of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Certificates, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in New York, New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by the Owner Trustee by an authorized officer of the Owner Trustee, by
manual signature, this Certificate shall not entitle the Certificateholder
hereof to any benefit under the Trust Agreement or be valid for any purpose.
A-3
This Certificate shall be construed in accordance with the laws of the
State of Delaware and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
USAA AUTO OWNER TRUST 200_-[ ]
Dated: __________, 200_ By: ________________________
not in its individual capacity
but solely as Owner Trustee
By: ________________________
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated: ____________, 200_
------------------------------
not in its individual capacity
but solely as Owner Trustee
By: ________________________
Authorized Officer
A-5
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee
or any Affiliates of any of them other than the Trust and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated herein, in the Trust Agreement or in the other Basic Documents.
In addition, this Certificate is not guaranteed by any governmental agency or
instrumentality or by any other entity and is limited in right of payment to
certain collections with respect to the Receivables (and certain other
amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the
Noteholders and the Certificateholders evidencing not less than a majority of
the principal amount of the Notes Outstanding and the Certificate Balance,
respectively. Any such consent by the holder of this Certificate shall be
conclusive and binding on such Certificateholder and on all future holders of
this Certificate and of any Certificate issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of any of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of the Certificates are registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Owner Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in Wilmington, Delaware, accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Certificates are issuable as registered Certificates without
coupons in denominations of at least $1,000 and in integral multiples of $1,000
in excess thereof. Certificates are exchangeable for new Certificates and
authorized denominations evidencing the same aggregate denomination, as
requested by the Certificateholder surrendering the same. No service charge
will be made for any such registration of transfer or exchange, but the Owner
Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
A-6
The Certificates may be acquired only by an entity that either: (A)
(x) for the entire period during which such purchaser or transferee holds its
interest in the Certificates, no portion of such purchaser's or transferee's
assets constitutes assets of any "employee benefit plan" within the meaning of
Section 3(3) of ERISA, whether or not subject to Title I of ERISA, including
any U.S. governmental or non-U.S. pension plan, or any "plan" subject to
Section 4975 of the Code (each, a "Covered Plan") or (B) (1) the assets used by
such purchaser or transferee to acquire the Certificates (or any interest
therein) constitute assets of an insurance company general account, (2) for the
entire period during which such purchaser or transferee holds its interest in
the Certificates, less than 25% of the assets of such insurance company general
account will constitute "plan assets" of any Covered Plan and (3) the
acquisition and holding of the Certificates by such purchaser or transferee
will satisfy the requirements of XXXX 00-00 and will not constitute a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or a violation of any applicable Similar Law.
In addition, the Certificates may not be acquired by or on behalf of a
Person other than (A) a citizen or resident of the United States, (B) a
corporation or partnership organized in or under the laws of the United States,
any state thereof or the District of Columbia, (C) an estate the income of
which is includible in gross income for United States tax purposes, regardless
of its source, (D) a trust with respect to which a U.S. court is able to
exercise primary supervision over the administration of such trust and one or
more Persons meeting the conditions of this paragraph has the authority to
control all substantial decisions of the trust or (E) a Person not described in
clauses (A) through (D) above whose ownership of the Certificates is
effectively connected with such Person's conduct of a trade or business within
the United States (within the meaning of the Code) and who provides the Owner
Trustee and the Depositor with an IRS Form W-8 ECI (and such other
certifications, representations, or opinions of counsel as may be requested by
the Owner Trustee or the Depositor).
The Trust shall dissolve (i) upon the maturity or other liquidation of
the last remaining Receivable and the disposition of any amounts received upon
such maturity or liquidation, (ii) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
Indenture, the Trust Agreement and the Sale and Servicing Agreement, or (iii)
the entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, and upon such dissolution any remaining assets of the Trust shall
be distributed to the Depositor. The Servicer of the Receivables may at its
option purchase the assets of the Trust at a price specified in the Sale and
Servicing Agreement, and such purchase of the Receivables and other property of
the Trust will effect an early retirement of the Notes and the Certificates;
however, such right of purchase is exercisable only as of the last day of any
Collection Period as of which the Pool Balance is less than or equal to 10% of
the Initial Pool Balance.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto _____________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------------------------------------------------
(Please print or type name and address,
including postal zip code, of assignee)
-----------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the ______________ books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:___________
*/
-----------------------------------------
Signature Guaranteed:
*/
-----------------------------------------
*/NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-8
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
USAA AUTO OWNER TRUST 200_-[ ]
This Certificate of Trust of USAA Auto Owner Trust 200_-[ ] (the
"Trust"), is being duly executed and filed by ________________________,
[ ], as owner trustee (the "Owner Trustee"), to form a
statutory trust under the Delaware Statutory Trust Act (12 Delaware Code, ss.
3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is USAA Auto
Owner Trust 200_-[ ].
2. Owner Trustee. The name and business address of the Owner Trustee
is _________________________, [ ].
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
----------------------------------,
not in its individual capacity but
solely as Owner Trustee
By: ___________________________________
Name:
Title:
B-1
APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
