Exhibit 4.2
EXECUTION COPY
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AMENDED AND RESTATED TRUST AGREEMENT
between
USAA ACCEPTANCE, LLC
as Depositor
and
WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION
as Owner Trustee
Dated as of March 15, 2005
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Table of Contents
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name.....................................................................................1
SECTION 2.2. Offices..................................................................................1
SECTION 2.3. Purposes and Powers......................................................................1
SECTION 2.4. Appointment of Owner Trustee.............................................................2
SECTION 2.5. Capital Contribution of Owner Trust Estate...............................................2
SECTION 2.6. Declaration of Trust.....................................................................2
SECTION 2.7. Liability of the Depositor and the Certificateholders....................................3
SECTION 2.8. Title to Trust Property..................................................................3
SECTION 2.9. Situs of Trust...........................................................................3
SECTION 2.10. Representations and Warranties of the Depositor..........................................3
SECTION 2.11. Federal Income Tax Matters...............................................................4
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership.............................................................5
SECTION 3.2. The Certificates.........................................................................5
SECTION 3.3. Authentication of Certificates...........................................................6
SECTION 3.4. Registration of Certificates; Transfer and Exchange of Certificates......................6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates........................................8
SECTION 3.6. Persons Deemed Owners of Certificates....................................................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses................................8
SECTION 3.8. Maintenance of Office or Agency..........................................................9
SECTION 3.9. Appointment of Certificate Paying Agent..................................................9
SECTION 3.10. Certain Rights of Depositor..............................................................9
SECTION 3.11. Book-Entry Certificates.................................................................10
SECTION 3.12. Notices to Clearing Agency..............................................................11
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..............................................................23
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.................................................................25
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.................................................27
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...........................................................................30
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 March 15, 2005 (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), between USAA ACCEPTANCE, LLC, a Delaware limited liability
company, as Depositor, having its principal office at 0000 Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000; and WACHOVIA BANK OF DELAWARE, NATIONAL
ASSOCIATION, a national banking association (the "Bank"), not in its
individual capacity but solely as trustee under this Agreement (in such
capacity, the "Owner Trustee"), having its principal corporate trust office at
000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 for the purpose of
establishing the USAA Auto Owner Trust 2005-1.
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of March 9, 2005, 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 2005-1", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2. Offices. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, hold and manage the Trust Property;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement upon the written order of the
Depositor;
(iii) in exchange for the Notes and the Certificates, to
acquire the Receivables and funds in the amount of the Reserve
Initial Deposit;
(iv) to pay interest on and principal of the Notes and
interest and distributions on the Certificates;
(v) to Grant the Owner Trust Estate (other than the
Certificate Distribution Account and the proceeds thereof) to the
Indenture Trustee pursuant to the Indenture;
(vi) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of interest and
principal payments to the Noteholders and interest payments and
distributions to the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Upon the execution of this
Agreement, the Owner Trustee shall continue as trustee of the Trust, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Capital Contribution of Owner Trust Estate. As of March
9, 2005, the Depositor sold, assigned and transferred to the Owner Trustee the
sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the
Depositor, as of such date, the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay the organizational expenses of
the Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. On the Closing Date, the Depositor shall convey to the Trust the
Trust Property and the Reserve Initial Deposit and the Owner Trustee shall
cause the delivery to or upon the order of the Depositor the Notes and the
Certificates.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that (i) the Trust constitute a statutory
trust under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) for income and franchise
tax purposes, the Trust shall be treated as a partnership, with the assets of
the partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders and the Depositor,
and the
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Notes constituting indebtedness of the partnership. The parties agree that,
unless otherwise required by the appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms consistent with the characterization of the Trust as a partnership for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust. The Owner
Trustee has filed the Certificate of Trust with the Secretary of State.
SECTION 2.7. Liability of the Depositor and the Certificateholders.
Neither the Depositor (except as otherwise provided herein) nor any
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to the entirety of
the Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity, except where applicable law in any jurisdiction requires title
to any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust shall be administered by the
Owner Trustee in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any state
other than the State of Delaware; provided, however, that nothing herein shall
restrict or prohibit the Bank, the Depositor or the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by the Trust only in Delaware or New York, and payments will be made by the
Trust only from Delaware or New York. The principal office of the Trust shall
be in care of the Owner Trustee in the State of Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly formed and validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms, and the Depositor has full
power and authority to sell and assign the property to be sold and assigned
to, and deposited with, the Trust, and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary limited
liability company action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary limited
liability company action.
(c) The Depositor has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor, in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting the enforcement of
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creditors' rights in general and by general equitable principles, regardless
of whether such enforceability is considered in a proceeding at law or in
equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the limited
liability company agreement of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound,
(ii) result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents) or (iii) violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending or, to
the Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement, the Indenture, any of the other Basic Documents, the Notes
or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or Applicable Tax State franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent
of the Depositor and the Servicer that, for purposes of federal income, state
and local income and franchise tax and any other income taxes, the Trust will
be treated as a partnership and the Certificateholders and the Depositor will
be treated as partners in that partnership. The Depositor hereby agrees and
the Certificateholders by acceptance of a Certificate agree to such treatment
and each agrees to take no action inconsistent with such treatment. For
purposes of federal income, State and local income and franchise tax and any
other income taxes each month:
(a) gross ordinary income of the Trust for such month as
determined for federal income tax purposes shall be allocated among
the Certificateholders as of the Record Date occurring within such
month, in proportion to their ownership of the Certificate Balance on
such date, in an amount up to the sum of (i) the Accrued Class B
Certificate Interest, (ii) the portion of the market discount on the
Receivables accrued during such month that is allocable to the
excess, if any, of the aggregate Initial Certificate Balance over the
initial aggregate issue price of the Certificates, (iii) prepayment
premium payable to the Certificateholders for such month and (iv) any
other amounts of income payable to the Certificateholders for such
month; and
(b) thereafter all remaining net income of the Trust
(subject to the modifications set forth below) for such month as
determined for federal income tax
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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 (except for one Certificate which may be issued in a
denomination other than an integral multiple of $1,000).
(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. However, 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" of a
Benefit Plan Investor within the meaning of 29 C.F.R.
ss.2510.3-101(f);
(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" of a Benefit Plan Investor within the
meaning of 29 C.F.R. ss.2510.3-101(f), and if, at that time, no
appropriate exemption or exception applies to the operation of the
Trust and its assets under ERISA, such insurance company will dispose
of the Certificates then held in its general account;
(iii) neither such insurance company nor any affiliate is a
Controlling Person of the Trust; and
(iv) the purchase satisfies the conditions for relief under
Section I of 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.
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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,
(3) neither such purchaser or transferee nor any affiliate
is a Controlling Person of the Trust and (4) 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
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member firm of the New York Stock Exchange or a commercial bank or trust
company. Each Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Certificate Registrar
in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar need not register
any transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Payment Date for any payment with respect to the Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice that such Certificate has been
acquired by a protected purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for, or in lieu of, any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate, of like tenor and denomination. In connection
with the issuance of any new Certificate under this Section 3.5, the Owner
Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section 3.5 shall constitute conclusive evidence of ownership in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.6. Persons Deemed Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving interest or
distributions pursuant to this Agreement and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Certificate Paying Agent and the Depositor, or to the Indenture
Trustee, within fifteen (15) days after receipt by the Owner 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
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applicants desire to communicate with other Certificateholders with respect to
their rights under this Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Owner Trustee shall, within five (5) Business
Days after the receipt of such application, afford such applicants access
during normal business hours to the current list of Certificateholders. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Depositor, the Certificate Registrar or the
Owner Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the State of Delaware, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its principal corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Certificate Paying Agent. The Certificate
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Certificate Paying Agent shall
initially be the Owner Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent upon thirty (30) days' written
notice to the Owner Trustee. In the event that the Owner Trustee shall no
longer be the Certificate Paying Agent, the Owner Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Certificate Paying
Agent to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Certificate Paying Agent shall
return all unclaimed funds to the Owner Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections 6.7,
6.9, 6.10, 7.1 and 7.2 shall apply to the Certificate Paying Agent. The Owner
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
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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 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.
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SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to the holders of Certificates is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the
Certificate Owners pursuant to Section 3.13, the Owner Trustee shall give all
such notices and communications specified herein to be given to holders of
Certificates to the Clearing Agency, and shall have no obligation to such
Certificate Owners.
SECTION 3.13. Definitive Certificates. 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
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terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent, the Servicer and the Depositor. Upon
receiving such notice of resignation or upon such a termination, the Owner
Trustee may appoint a successor Authenticating Agent and shall give written
notice of any such appointment to the Depositor and the Servicer.
(d) The Servicer, pursuant to the Sale and Servicing Agreement,
agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services. The provisions of Section 6.4 shall be
applicable to any Authenticating Agent.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. It is the intention of the Depositor and the
Certificateholders that the powers and duties of the Owner Trustee are
ministerial only and that any non-ministerial action (including the taking of
any legal action) may only be taken by the Owner Trustee in accordance with
this Section 4.1. With respect to the following matters, the Owner Trustee
shall not take action unless, (i) at least thirty (30) days before the taking
of such action, the Owner Trustee shall have notified the Certificateholders
of record as of the preceding Record Date and the Rating Agencies in writing
of the proposed action and (ii) Certificateholders holding not less than a
majority of the 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
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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
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
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relevant Determination Date pursuant to Section 3.9 of the Sale and Servicing
Agreement withdraw the amounts deposited into the Certificate Distribution
Account pursuant to Sections 4.6(c) (if applicable) and 4.6(d) of the Sale and
Servicing Agreement or, if applicable, Section 5.4(b) of the Indenture on or
prior to such Payment Date and make or cause to be made distributions and
payments 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
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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. 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
15
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof and the Depositor's
execution of this Agreement, and to direct the Indenture Trustee to
authenticate and deliver (i) Class A-1 Notes in the aggregate principal amount
of $229,000,000, (ii) Class A-2 Notes in the aggregate principal amount of
$237,000,000, (iii) Class A-3 Notes in the aggregate principal amount of
$393,000,000 and (iv) Class A-4 Notes in the aggregate principal amount of
$171,177,000. In addition to the foregoing, the Owner Trustee is authorized to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action on
behalf of the Trust as is permitted by the Basic Documents and which the
Servicer or the Administrator directs with respect to the Basic Documents,
except to the extent that this Agreement expressly requires the consent of
Certificateholders for such action.
SECTION 6.2. General Duties. Subject to Section 4.1 hereof, it shall
be the duty of the Owner Trustee to discharge (or cause to be discharged) all
of its responsibilities pursuant to the terms of this Agreement and the other
Basic Documents to which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to the Lien of the Indenture
and in accordance with the provisions of this Agreement and the other Basic
Documents. Notwithstanding anything else to the contrary in this Agreement,
the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement to perform any act
or to discharge such duty of the Owner Trustee or the Trust hereunder or under
any other Basic Document, and the Owner Trustee shall not be held liable for
the default or failure of the Administrator to carry out its obligations under
the Administration Agreement. Except as expressly provided in the Basic
Documents, the Owner Trustee shall have no obligation to administer, service
or collect the Receivables or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and
in accordance with the terms of the Basic Documents, the Certificateholders
may, by written instruction, direct the Owner Trustee in the management of the
Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the
16
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
(d) In the event the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or Lien granted to it hereunder or to prepare or file
any Commission filing for the Trust or to record this Agreement or any other
Basic Document. Notwithstanding any Person's right to instruct the Owner
Trustee, neither the Owner Trustee nor any agent, employee, director or
officer of the Owner Trustee shall have any obligation to execute any
certificates or other documents required pursuant to the Xxxxxxxx-Xxxxx Act of
2002 or the rules and regulations promulgated thereunder, and the refusal to
comply with any such instructions shall not constitute a default or breech
under any Basic Document. The Owner Trustee nevertheless agrees that it will,
at its own cost and expense, promptly take all action as may be necessary to
discharge any Lien (other than the Lien of the Indenture) on any part of the
Owner Trust Estate that results from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the
Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Basic Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the
17
Depositor nor the Certificateholders shall direct the Trustee to take any
action that would violate the provisions of this Section 6.5.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
(i) affect the treatment of the Notes as indebtedness for federal income or
Applicable Tax State income or franchise tax purposes, (ii) be deemed to cause
a taxable exchange of the Notes for federal income or Applicable Tax State
income or franchise tax purposes or (iii) cause the Trust or any portion
thereof to be taxable as an association (or publicly traded partnership)
taxable as a corporation for federal income or Applicable Tax State income or
franchise tax purposes. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 6.6.
SECTION 6.7. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents to which the Owner Trustee is a party. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document 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
18
shall in no event assume or incur any liability, duty, or obligation
to any Noteholder or to any Certificateholder, other than as expressly
provided for herein and in the other Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Depositor or the
Indenture Trustee under any of the Basic Documents or otherwise and
the Owner Trustee shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the
Indenture or the Depositor or the Servicer under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this
Agreement or otherwise or in relation to this Agreement or any other
Basic Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to
the Owner Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby.
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
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documents or by-laws or any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its properties
may be bound.
SECTION 6.10. Reliance; Advice of Counsel. (a) The Owner Trustee may
rely upon, shall be protected in relying upon, and shall incur no liability to
anyone in acting upon, any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any party as
conclusive evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or matter the
method of determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or
the other Basic Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected
by the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any other Basic Document.
SECTION 6.11. Not Acting in Individual Capacity. Except as provided
in this Article VI, in accepting the trusts hereby created, Wachovia Bank of
Delaware, National Association acts solely as Owner Trustee hereunder and not
in its individual capacity, and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any
other Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
SECTION 6.12. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, of any
other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or the Notes, or of
any Receivable or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to be distributed to Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation: the existence,
condition and
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ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or any intervening assignment; the completeness of any
Receivable; the performance or enforcement of any Receivable; the compliance
by the Depositor or the Servicer with any warranty or representation made
under any Basic Document or in any related document, or the accuracy of any
such warranty or representation, or any action of the Indenture Trustee, the
Administrator or the Servicer or any subservicer taken in the name of the
Owner Trustee.
SECTION 6.13. Owner Trustee May Own Certificates and Notes. Wachovia
Bank of Delaware, National Association, in its individual or any other
capacity, may become the owner or pledgee of Certificates or Notes and may
deal with the Depositor, the Servicer, the Administrator and the Indenture
Trustee in banking transactions with the same rights as they would have if it
was not the Owner Trustee.
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Servicer,
pursuant to the Sale and Servicing Agreement, shall pay to the Owner Trustee
as compensation for its services hereunder such fees as have been separately
agreed upon prior to the date hereof between the Servicer and the Owner
Trustee, and the Servicer pursuant to the Sale and Servicing Agreement shall
reimburse the Owner Trustee for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder. The Servicer shall indemnify the Owner Trustee pursuant to the Sale
and Servicing Agreement.
SECTION 7.2. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust. (a) The Trust shall dissolve
and wind up, (i) upon the maturity or other liquidation of the last remaining
Receivable and the disposition of any amounts received upon such maturity or
liquidation, (ii) upon the payment to the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement, Article V and
Section 8.2, or (iii) upon the entry of an order for the dissolution of the
Trust from a court of competent jurisdiction. Any Insolvency Event,
liquidation, dissolution, death or incapacity with respect to any
Certificateholder or Certificate Owner shall not (x) operate to terminate this
Agreement or dissolve and/or terminate the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
all or
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any part of the Trust or Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto. Upon dissolution of
the Trust, the Owner Trustee shall wind up the business and affairs of the
Trust as required by Section 3808 of the Statutory Trust Statute.
(b) Except as provided in Section 8.1(a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the
Payment Date upon which the Certificateholders shall surrender their
Certificates to the Certificate Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter
to Certificateholders mailed within five (5) Business Days of receipt of
notice of such dissolution from the Servicer, stating (i) the Payment Date
upon or with respect to which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the
Certificate Paying Agent therein designated, (ii) the amount of any such final
payment (after reservation of sums sufficient to pay all claims and
obligations, if any, known to the Owner Trustee and payable by the Trust) and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein specified.
The Owner Trustee shall give such notice to the Certificate Registrar (if
other than the Owner Trustee) and the Certificate Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Certificate Paying Agent shall cause to be 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.
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SECTION 8.2. Prepayment of Certificates. (a) The Certificates shall
be prepaid in whole, but not in part, at the direction of the Servicer
pursuant to Section 8.1 of the Sale and Servicing Agreement, on any Payment
Date on which the Servicer exercises its option to purchase the assets of the
Trust pursuant to said Section 8.1, and the amount paid by the Servicer shall
be treated as collections of Receivables and applied to pay the unpaid
principal amount of the Notes and the Certificate Balance plus accrued and
unpaid interest (including any overdue interest, to the extent lawful)
thereon. The Servicer shall furnish the Rating Agencies and the Owner Trustee
notice of such prepayment. If the Certificates are to be prepaid pursuant to
this Section 8.2(a), the Servicer shall furnish notice of such election to the
Owner Trustee not later than forty (40) days prior to the Prepayment Date and
the Trust shall deposit by 10:00 A.M. (New York City time) on the Prepayment
Date in the Certificate Distribution Account the Prepayment Price of the
Certificates to be redeemed, whereupon all such Certificates shall be due and
payable on the Prepayment Date.
(b) Notice of prepayment under Section 8.2(a) shall be given by
the Owner Trustee by first-class mail, postage prepaid, or by facsimile mailed
or transmitted immediately following receipt of notice from the Trust or
Servicer pursuant to Section 8.2(a), but not later than thirty (30) days prior
to the applicable Prepayment Date, to each Certificateholder as of the close
of business on the Record Date preceding the applicable Prepayment Date, at
such Certificateholder's address or facsimile number appearing in the
Certificate Register.
All notices of prepayment shall state:
(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
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and surplus of at least $50,000,000 and shall be subject to supervision or
examination by federal or state authorities; and (iii) shall have (or shall
have a parent that has) a long-term debt rating of investment grade by each of
the Rating Agencies or be otherwise acceptable to the Rating Agencies. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 9.1, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section 9.1, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 9.2.
(b) The Owner Trustee shall at all times be a corporation
satisfying the provisions of Section 3807(a) of the Statutory Trust Statute.
SECTION 9.2. Resignation or Removal of Owner Trustee. (a) The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. 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.
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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 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
25
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 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.
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SECTION 9.6. Compliance with Statutory Trust Statute. Notwithstanding
anything herein to the contrary, the Trust shall at all times have at least
one trustee which meets the requirements of Section 3807(a) of the Statutory
Trust Statute.
ARTICLE X
MISCELLANEOUS
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.
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(d) It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee pursuant to this
Section 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof
by Certificateholders shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(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
28
executive office first above written; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not such
Certificateholder receives such notice.
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.
29
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
30
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
USAA ACCEPTANCE, LLC,
as Depositor
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx, CCTS
Title: Vice President
31
EXHIBIT A
FORM OF CLASS B CERTIFICATE
[FOR BOOK-ENTRY CERTIFICATES] [UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS CERTIFICATE IS PAYABLE IN INSTALLMENTS AS SET
FORTH IN THE TRUST AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF.
$
B-__ CUSIP XX. 000000XX0
XXXX AUTO OWNER TRUST 2005-1
CLASS B 4.56% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the Trust, as defined below. The property
of the Trust includes a pool of motor vehicle retail installment loans,
secured by security interests in the motor vehicles financed thereby, conveyed
by USAA Acceptance, LLC to the Trust. The property of the Trust has been
pledged to the Indenture Trustee pursuant to the Indenture to secure the
payment of the Notes issued thereunder.
(This Certificate is not a deposit, does not represent an interest in or
obligation of USAA Federal Savings Bank or any of its Affiliates and is not
insured by the Federal Deposit Insurance Corporation or any other entity.)
THIS CERTIFIES THAT ___________ is the registered owner of
____________ ______________ dollars certificate principal balance of Class B
4.56% Asset Backed Certificates of USAA Auto Owner Trust 2005-1 (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 March 15, 2005 (as from time to time amended,
supplemented or otherwise modified and in
A-1
effect, the "Trust Agreement"), between the Depositor and Wachovia Bank of
Delaware, National Association, a national banking association, not in its
individual capacity but solely as owner trustee (the "Owner Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "Class B 4.56% 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 March 15, 2005 (as from time to time
amended, supplemented or otherwise modified and in effect, the "Indenture"),
between the Trust and JPMorgan Chase Bank, National Association, as indenture
trustee (in such capacity, the "Indenture Trustee"), are the Notes designated
as "Class A-1 3.0272% Asset Backed Notes", "Class A-2 3.55% Asset Backed
Notes", "Class A-3 3.90% Asset Backed Notes" and "Class A-4 4.13% 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 March 1, 2005 (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 April 15, 2005, to the Person in
whose name this Certificate is registered at the
A-2
close of business on the last day of the preceding month (the "Record Date")
such Certificateholder's percentage interest in the amount to be distributed
to Class B Certificateholders on such Payment Date pursuant to the Trust
Agreement. Following the occurrence and during the continuation of certain
events of default under the Indenture which result in an acceleration of the
Notes, no distributions or interest will be made on the Certificates until all
principal and interest on the Notes has been paid in full.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS
RIGHTS TO RECEIVE DISTRIBUTIONS AND INTEREST IN RESPECT OF THIS CERTIFICATE
ARE SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT, THE INDENTURE AND THE TRUST AGREEMENT.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not, until after the Notes have
been paid in full, institute against the Trust, or join in any institution
against the Trust of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Certificates, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in New York, New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by the Owner Trustee by an authorized officer of the Owner Trustee,
by manual signature, this Certificate shall not entitle the Certificateholder
hereof to any benefit under the Trust Agreement or be valid for any purpose.
A-3
This Certificate shall be construed in accordance with the laws of
the State of Delaware and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
USAA AUTO OWNER TRUST 2005-1
Dated: March 15, 2005 By: Wachovia Bank of Delaware, National
Association
not in its individual capacity
but solely as Owner Trustee
By:__________________________________
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated: Xxxxx 00, 0000
Xxxxxxxx Bank of Delaware, National
Association
not in its individual capacity
but solely as Owner Trustee
By:__________________________________
Authorized Officer
A-5
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Seller, the Servicer, the Administrator, the Owner
Trustee or any Affiliates of any of them other than the Trust and no recourse
may be had against such parties or their assets, except as may be expressly
set forth or contemplated herein, in the Trust Agreement or in the other Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality or by any other entity and is limited in right of
payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under
the Trust Agreement at any time by the Depositor and the Owner Trustee with
the consent of the Noteholders and the Certificateholders evidencing not less
than a majority of the principal amount of the Notes Outstanding and the
Certificate Balance, respectively. Any such consent by the holder of this
Certificate shall be conclusive and binding on such Certificateholder and on
all future holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of any of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of the Certificates are registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Owner Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in Wilmington, Delaware, accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
The Certificates are issuable as registered Certificates without
coupons in denominations of at least $1,000 and in integral multiples of
$1,000 in excess thereof (except one Certificate which may be issued in a
denomination other than an integral multiple of $1,000). 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, (3) neither
such purchaser or transferee nor any affiliate is a Controlling Person of the
Trust and (4) 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 2005-1
This Certificate of Trust of USAA Auto Owner Trust 2005-1 (the
"Trust"), is being duly executed and filed by Wachovia Bank of Delaware,
National Association, a national banking association, as owner trustee (the
"Owner Trustee"), to form a statutory trust under the Delaware Statutory Trust
Act (12 Delaware Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is USAA Auto
Owner Trust 2005-1.
2. Owner Trustee. The name and business address of the Owner Trustee
is Wachovia Bank of Delaware, National Association, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
Wachovia Bank of Delaware, National Association,
not in its individual capacity but solely as
Owner Trustee
By:_______________________________________________
Name:
Title:
B-1
APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
