EXHIBIT 4.4
II-13
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TRUST AGREEMENT
among
ADVANTA AUTO FINANCE CORPORATION
_____________________________,
not in its individual capacity but solely as Owner Trustee,
and
_____________________________,
as Servicer
Dated as of _______, 199_
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................ 2
SECTION 1.1 Capitalized Terms............................ 2
SECTION 1.2 Other Definitional Provisions................ 4
ARTICLE II ORGANIZATION............................................... 5
SECTION 2.1 Name......................................... 5
SECTION 2.2 Office....................................... 5
SECTION 2.3 Purposes and Powers.......................... 5
SECTION 2.4 Appointment of Owner Trustee................. 6
SECTION 2.5 Organizational Expenses...................... 6
SECTION 2.6 Declaration of Trust......................... 6
SECTION 2.7 Liability of the Certificateholders.......... 7
SECTION 2.8 Title to Trust Property...................... 7
SECTION 2.9 Situs of Trust............................... 7
SECTION 2.10 Representations and Warranties of
the Sponsor............................... 7
SECTION 2.11 Books and Records; Tax Returns............... 8
SECTION 2.12 Authorized Representative.................... 9
ARTICLE III THE CERTIFICATES......................................... 9
SECTION 3.1 The Certificates............................. 9
SECTION 3.2 Registration of Transfer and
Exchange of Certificates.................. 9
SECTION 3.3 No Charge; Destruction of Void
Certificates.............................. 10
SECTION 3.4 Mutilated, Destroyed, Lost or
Stolen Certificates....................... 10
SECTION 3.5 Persons Deemed Certificateholders............ 11
SECTION 3.6 Access to List of
Certificateholders' Names and
Addresses................................. 11
SECTION 3.7 Acts of Certificateholders................... 11
SECTION 3.8 Limitation on Transfer and
Exchange.................................. 12
SECTION 3.9 Payments to Certificateholders............... 13
ARTICLE IV ACTIONS BY THE OWNER TRUSTEE.............................. 13
SECTION 4.1 Prior Notice to Certificateholders
with Respect to Certain Matters........... 13
SECTION 4.2 Bankruptcy................................... 13
SECTION 4.3 Rights of Certificateholders to
Direct Owner Trustee...................... 13
SECTION 4.4 Suits for Enforcement........................ 14
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SECTION 4.5 Owner Trustee May Enforce Claims
without Possession of
Certificates.............................. 14
SECTION 4.6 Limitation on Rights of
Certificateholders........................ 14
ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE.................. 15
SECTION 5.1 General Authority............................ 15
SECTION 5.2 General Duties............................... 15
SECTION 5.3 Action upon Instruction...................... 16
SECTION 5.4 No Duties Except as Specified in
this Agreement or in Instructions......... 16
SECTION 5.5 No Action Except Under Specified
Documents or Instructions................. 17
SECTION 5.6 Restrictions................................. 17
ARTICLE VI CONCERNING THE OWNER TRUSTEE.............................. 17
SECTION 6.1 Acceptance of Trusts and Duties.............. 17
SECTION 6.2 Furnishing of Documents...................... 18
SECTION 6.3 Representations and Warranties............... 19
SECTION 6.4 Reliance; Advice of Counsel.................. 19
SECTION 6.5 Owner Trustee Not Liable for
Certificates or Contracts................. 20
SECTION 6.6 Not Acting in Individual Capacity............ 21
SECTION 6.7 Interpretation of Trust Agreement............ 21
ARTICLE VII COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE........ 21
SECTION 7.1 Owner Trustee's Fees and Expenses............ 21
SECTION 7.2 Indemnification.............................. 22
ARTICLE VIII SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.. 22
SECTION 8.1 Eligibility Requirements for Owner
Trustee................................... 22
SECTION 8.2 Resignation or Removal of Owner
Trustee................................... 23
SECTION 8.3 Successor Owner Trustee...................... 23
SECTION 8.4 Merger or Consolidation of Owner
Trustee................................... 24
SECTION 8.5 Appointment of Co-Owner Trustee or
Separate Owner Trustee.................... 24
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ARTICLE IX TERMINATION OF TRUST AGREEMENT............................ 26
SECTION 9.1 Termination of Trust Agreement............... 26
SECTION 9.2 Dissolution upon Bankruptcy of the
Sponsor................................... 27
ARTICLE X MISCELLANEOUS.............................................. 28
SECTION 10.1 Supplements and Amendments................... 28
SECTION 10.2 Notices...................................... 29
SECTION 10.3 Merger and Integration....................... 30
SECTION 10.4 Headings..................................... 30
SECTION 10.5 Governing Law................................ 30
SECTION 10.6 Counterparts................................. 30
SECTION 10.7 No Legal Title to Trust Estate in
Certificateholder......................... 30
SECTION 10.8 Limitation on Rights of Others............... 31
SECTION 10.9 Severability................................. 31
SECTION 10.10 Successors and Assigns....................... 31
SECTION 10.11 No Implied Waiver............................ 31
SECTION 10.12 No Petition.................................. 31
SECTION 10.13 No Recourse.................................. 32
Exhibit A Form of Certificate........................................A-1
Exhibit B Investment Letter..........................................B-1
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THIS TRUST AGREEMENT, dated as of _______________, 199_ (the "Trust
Agreement"), among ADVANTA AUTO FINANCE Corporation, a Nevada corporation (the
"Sponsor"), _____________________, a ____________ banking corporation, not in
its individual capacity but solely as trustee (together with its permitted
successors in the trusts hereunder, the "Owner Trustee") of the [Advanta Auto
Receivables Trust 199__-_] (the "Trust"), ____________________, as Servicer (the
"Servicer") and the holders (the "Certificateholders") of undivided percentage
interests in the Trust.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements, covenants and undertakings herein contained, the parties
intending to be legally bound, hereby agree as follows:
PRELIMINARY STATEMENTS
In the regular course of its business, ____________________, a
__________ corporation (the "Originator"), has acquired the Receivables. All
capitalized terms used in these Preliminary Statements which are not defined
shall have the meanings ascribed to such terms in Article I.
Pursuant to the Receivables Acquisition Agreement, dated _______,
199_, between the Originator and the Sponsor, the Originator assigned the
Contracts and the Vehicles to the Sponsor.
The Sponsor will immediately thereafter transfer and assign the
Contracts and grant a security interest in the related Vehicles to the Trust.
The Receivables will be serviced by the Servicer, pursuant to a Servicing
Agreement, dated as of the date hereof (the "Servicing Agreement"), among the
Servicer, the Sponsor, _______________________, not in its individual capacity
but solely as Collateral Trustee (the "Collateral Trustee"),
____________________, and the Trust.
Each Certificateholder by accepting its Certificate shall be deemed
to have agreed to the terms of this Agreement and to have authorized the Trust
to acquire the Contracts from the Sponsor and hold such Contracts and other
assets described in the Receivables Acquisition Agreement in trust for the use
and benefit of the Certificateholders. Subject to the terms and conditions set
forth in this Agreement, the Owner Trustee will issue auto receivables backed
certificates (the "Certificates") to the Certificateholders.
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Agreement" means this Trust Agreement as originally executed and,
if from time to time supplemented or amended by one or more amendments entered
into pursuant to the applicable provisions hereof, as so supplemented or
amended.
"Applicants" has the meaning ascribed to such term in Section 3.6.
"Basic Documents" means this Agreement, the Servicing Agreement, the
Indenture, the Receivables Acquisition Agreement, and the other documents and
certificates delivered in connection therewith.
"Certificate" means a Certificate evidencing a Percentage Interest
in the Trust, executed and delivered by the Owner Trustee to an investor
substantially in the form of Exhibit A.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register, other than the Sponsor.
"Certificate Register" means the register maintained pursuant to
Section 3.2.
"Certificate Registrar" or "Registrar" means the registrar appointed
pursuant to Section 3.2.
"Closing Date" means _______________, 199_.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Trustee" has the meaning ascribed to such term in the
Preliminary Statements.
"Contracts" means the installment sale contracts for new and used
automobiles and light duty trucks described in the List of Contracts and
includes, without limitation: the originally, manually executed counterpart of
each Contract, including all amendments thereto, and all rights to receive the
Scheduled Payments which are due pursuant thereto; any and all security
interests and any and all rights to enforce the monetary and non-monetary
covenants of each Obligor thereunder; and all proceeds of the any of the
foregoing.
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"Corporate Trust Office" means the office of the Owner Trustee
located at ___________________; or at such other address as the Owner Trustee
may designate by notice to the Certificateholders and the Sponsor, or the
principal trust office of any successor Owner Trustee.
"Sponsor" means Advanta Auto Finance Corporation, a Nevada
corporation.
"Eligible Bank" means [Trustee], so long as such bank continues to
act as Owner Trustee hereunder; thereafter, Eligible Bank means any depository
institution with trust powers organized under the laws of the United States or
any state having capital and surplus in excess of $50,000,000, the deposits of
which are insured to the full extent permitted by law by the Federal Deposit
Insurance Corporation and which is subject to supervision and examination by
federal or state authorities. If such depository institution publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then 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.
"Expenses" has the meaning ascribed to such term in Section 7.2.
"Indenture" means the Indenture, dated as of the date hereof,
between _______________, not in its individual capacity but solely as Indenture
Trustee, and the Trust, as such agreement may be further amended, modified or
supplemented from time to time.
"Note" means a debt instrument issued by the Trust pursuant to the
Indenture and secured by the assets of the Trust, executed and delivered by the
Owner Trustee to an investor.
"Noteholders" means any Person in whose name a Note is registered,
other than the Sponsor.
"Obligor" means the obligor under each Contract, its successors and
assigns and any other person who owes or has guaranteed payment under a
Contract.
"Owner Trustee" means ______________, not in its individual capacity
but solely as trustee under this Agreement, until a successor Owner Trustee
shall have been appointed pursuant to the applicable provisions of this
Agreement, and thereafter such successor Owner Trustee.
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"Percentage" or "Percentage Interest", means the undivided interest
in the Trust expressed as a percentage owned by the holder of a particular
Certificate.
"Person" means any legal person, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Receivables Acquisition Agreement" has the meaning ascribed to such
term in the Preliminary Statements.
"Servicer" has the meaning ascribed to such term in the first
paragraph hereof.
"Servicing Agreement" has the meaning ascribed to such term in the
Preliminary Statements.
"Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to the Receivables
Acquisition Agreement, and all other property of the Trust from time to time,
including any rights of the Owner Trustee and the Trust pursuant to the
Servicing Agreement.
"Vehicles" means the new and used automobiles and light duty trucks
sold to Obligors as described in the Contracts.
SECTION 1.2 Other Definitional Provisions. (a) Capitalized terms
used herein and not otherwise defined have the meanings assigned to them in the
Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles in effect on the
date hereof. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
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definitions contained in this Agreement or in any such certificate or other
documents shall control.
(d) The words "hereof", "herein", "hereunder", and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
["Advanta Auto Receivables Trust 199_-_"], 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.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders and the
Sponsor.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes and/or
Certificates in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to pay such proceeds to, or as directed in writing by, the
Sponsor;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the Certificateholders pursuant to the terms of the Servicing Agreement
any portion of the Trust Estate released from the lien of, and remitted to
the Trust pursuant to, the Indenture;
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(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) 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
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 Organizational Expenses. The Sponsor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the condition
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 the Trust constitute a trust and that this Agreement
constitute the governing instrument of such trust. It is the intention of the
parties hereto that, solely 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 Notes being the debt of the partnership.
The parties agree that, unless otherwise required by 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 Servicer and the Owner Trustee (subject to the provisions hereof) shall have
all rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Trust.
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SECTION 2.7 Liability of the Certificateholders. (a) The Sponsor
shall be liable directly to and will indemnify the Certificateholders,
Noteholders or any other injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including expenses, to the extent not
paid out of the Trust Estate) to the extent that the Sponsor would be liable if
the Trust were a ________________ limited partnership in which the Sponsor were
a general partner; provided, however, that the Sponsor shall not be liable (i)
to any Certificateholder or Noteholder for any losses incurred by such
Certificateholder in the capacity of an investor in the Certificates or such
Noteholder in the capacity of an investor in the Notes or (ii) to any Person for
any losses incurred by such Person as a result of the fraudulent actions,
misrepresentations or willful misconduct of such Person.
(b) No Certificateholder (other than to the extent set forth in
paragraph (a) above) shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all the 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 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 will be located and
administered in the State of ____________. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of
_____________. The Trust shall not have any employees in any state other than
____________; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
_______________. The only office of the Trust will be at the Corporate Trust
Office in _______________.
SECTION 2.10 Representations and Warranties of the Sponsor. The
Sponsor hereby represents and warrants to the Owner Trustee that:
(a) The Sponsor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Nevada, with
corporate 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 Sponsor is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property
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or the conduct of its business shall require such qualifications.
(c) The Sponsor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the Sponsor
has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Trust and the Sponsor shall have
duly authorized such sale and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement has been duly authorized by the Sponsor by all necessary
corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the Articles of
Incorporation of the Sponsor, or any indenture, agreement or other
instrument to which the Sponsor is a party or by which it is bound; nor
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); nor violate any
law or, to the best of the Sponsor's knowledge, any order, rule or
regulation applicable to the Sponsor of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Sponsor or its properties.
SECTION 2.11 Books and Records; Tax Returns. Except as otherwise
expressly provided in this Agreement, the Owner Trustee shall be responsible for
the keeping of all appropriate books and records relating to the receipt and
disbursement by the Owner Trustee of all monies under this Agreement or any
agreement contemplated hereby. The Owner Trustee agrees to file an application
prepared by the Servicer with the Internal Revenue Service for a taxpayer
identification number with respect to the trust created hereby. The Sponsor
shall cause to be timely prepared and the Sponsor shall cause to be timely filed
at the expense of the Sponsor the federal fiduciary tax return for the Trust
created hereby and, upon the request of the Sponsor, such other tax returns as
are required to be executed by the Owner Trustee. The Owner Trustee and the
Sponsor, upon request, will furnish each other with all such information as may
reasonably be requested and shall otherwise cooperate with each other in
connection with the preparation of such income tax returns. The Owner Trustee
shall keep copies of all returns delivered to or filed by it. The Owner Trustee
will give to the Sponsor, upon request, periodic information concerning
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receipts and disbursements by it with respect to the Trust created by this
Agreement.
SECTION 2.12 Authorized Representative. Any officer of the Servicer
will be authorized to act as an authorized representative ("Authorized
Representative") for the Trust in matters relating to the Trust and must be
identified on a list of Authorized Representatives delivered by the Servicer to
the Indenture Trustee on the Closing Date and such list may be modified or
supplemented from time to time thereafter. The Servicer agrees to cause its
Authorized Representatives to execute and deliver all documents and to perform
all acts required by the Basic Documents to be executed, delivered and performed
by such Authorized Representatives.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 The Certificates. The Certificates shall be
substantially in the form of Exhibit A. The Certificates shall be issuable only
as registered Certificates representing undivided interests in the Trust. The
rights to receive payments with respect to the Certificates are subordinated to
the prior payment in full of all amounts of principal and interest on the Notes.
The Certificates shall be executed by the Owner Trustee on behalf of the Trust
by the manual signature of a duly authorized officer of the Owner Trustee under
the seal of and attested by the manual signature of the Secretary or an
Assistant Secretary or other authorized officer of the Owner Trustee.
Certificates bearing the signatures of individuals who were at the time the
proper officers or authorized signatories of the Owner Trustee shall bind the
Owner Trustee, notwithstanding that such individuals or any of them have ceased
to hold such offices or positions prior to the delivery of such Certificates or
did not hold such offices or positions at the date of such Certificates. All
Certificates shall be dated the date of their execution.
SECTION 3.2 Registration of Transfer and Exchange of Certificates.
(a) The Owner Trustee shall maintain, or cause to be maintained, at the
Corporate Trust Office a Certificate Register in which the Owner Trustee shall
provide or cause to be provided the registration of Certificates and transfers
and exchanges of Certificates as herein provided. The Owner Trustee is hereby
initially appointed the "Certificate Registrar" and transfer agent for the
purpose of registering Certificates and transfers and exchanges of Certificates
as provided herein.
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(b) Subject to Section 3.3 and subject to the conditions set forth
in Section 3.8 hereof, upon surrender for registration or transfer of any
Certificate at such office, the Owner Trustee shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Certificates
of a like aggregate Percentage Interest and dated the date of execution by the
Owner Trustee.
(c) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates representing undivided interests in the Trust
and of a like aggregate Percentage Interest, upon surrender of the Certificates
to be exchanged at such office. Whenever any Certificates are so surrendered for
exchange, the Owner Trustee shall execute and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
be accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar, duly executed by the holder thereof
or his or her attorney duly authorized in writing.
SECTION 3.3 No Charge; Destruction of Void Certificates. No service
charge shall be made to the Certificateholder for any transfer or exchange of
Certificates, but the Owner Trustee or Certificate Registrar may require payment
or a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates. All
Certificates surrendered for transfer and exchange shall be disposed of in a
manner approved by the Owner Trustee. All Certificates surrendered to the Paying
Agent for payment, shall be delivered by the Paying Agent to the Owner Trustee
for disposition as aforesaid.
SECTION 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to the
Certificate Registrar and the Owner Trustee such security or indemnity as may be
required by each to save it harmless, then in the absence of notice to the
Certificate Registrar or the Owner Trustee that such Certificate has been
acquired by a bona fide purchaser, the Owner Trustee shall execute and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage. Upon the issuance
of any new Certificate under this Section 3.4, the Owner Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
Any
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duplicate Certificate issued pursuant to this Section 3.4 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest
evidenced thereby, as if originally issued, whether or not the mutilated,
destroyed, lost or stolen Certificate shall be found at any time.
SECTION 3.5 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee
and the Certificate Registrar may treat the person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
remittances pursuant to Section 3.3(e) of the Servicing Agreement and for all
other purposes whatsoever, and neither the Owner Trustee, the Certificate
Registrar nor any agent of the Owner Trustee or the Certificate Registrar shall
be affected by notice to the contrary.
SECTION 3.6 Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar will furnish to the Sponsor and the
Servicer, within five days after receipt by the Certificate Registrar of a
request therefor from the Sponsor or the Servicer in writing, a list, in such
form as the Owner Trustee may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date. If Certificateholders
with an aggregate Percentage of 25% or more (hereinafter referred to as
"Applicants") apply in writing to the Owner Trustee, and such application states
that the Applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the Owner
Trustee. If such list is as of a date more than 90 days prior to the date of
receipt of such Applicants' request, the Owner Trustee shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such Applicants access to such list promptly upon receipt. Every
Certificateholder, by receiving and holding a Certificate, agrees with the
Certificate Registrar and the Owner Trustee that neither the Sponsor, the
Servicer, the Certificate Registrar nor the Owner Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 3.7 Acts of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders or Noteholders may be
embodied
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in and evidenced by one or more instruments of substantially similar tenor
signed by such Certificateholders or Noteholders in person or by agent duly
appointed in writing; and except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Owner Trustee. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Owner Trustee, the Sponsor and the Servicer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder or
Noteholder of any such instrument or writing may be proved in any reasonable
manner which the Owner Trustee deems sufficient.
(c) The ownership of Certificates and Notes shall be proved by the
Certificate Register and the Note Register, respectively.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder or a Noteholder shall bind every
holder of every Certificate or Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
or omitted to be done by the Owner Trustee or the Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate or Note.
(e) The Owner Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 3.8 Limitation on Transfer and Exchange. (a) No
Certificateholder may sell or transfer any Certificate (whether voluntarily,
involuntarily or by operation of law) except with the prior written consent of
the other Certificateholders, which consent shall not be unreasonably withheld
or delayed. Any sale or transfer without the prior written consent of the
Certificateholders shall be null and void and confer no rights on the purchaser
or transferee with respect to the Trust, this Agreement or the Owner Trustee.
(b) No Certificate may be transferred to the Owner Trustee, the
Collateral Trustee or the Indenture Trustee.
(c) The Owner Trustee shall have no liability to the Trust Estate or
any Certificateholder arising from a transfer of any such Certificate in
reliance upon a certification described in this Section 3.8. No transfer or
exchange of a Certificate shall be made unless the transferee delivers to the
Owner Trustee the Investment Letter required by this Section 3.8.
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SECTION 3.9 Payments to Certificateholders. The Owner Trustee, by
executing this Agreement, is deemed to have instructed the Collateral Trustee to
distribute to the Certificateholders on each applicable Payment Date, in
accordance with their respective Percentage Interests, amounts due and payable
to the Certificateholders on deposit in the Certificate Account pursuant to
Section 3.3(e) of the Servicing Agreement.
ARTICLE IV
ACTIONS BY THE OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless, at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of Receivables);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required; and
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders.
SECTION 4.2 Bankruptcy. The Owner Trustee shall not have the power
to commence a voluntary proceeding in bankruptcy relating to the Trust without
the unanimous prior approval of all Certificateholders and the delivery to the
Owner Trustee by each such Certificateholder of a certificate certifying that
such Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.3 Rights of Certificateholders to Direct Owner Trustee.
Certificateholders with aggregate Percentage Interests representing [51%] or
more shall have the right to direct the time, method, and place of conducting
any
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proceeding for any remedy available to the Owner Trustee, or exercising any
trust or power conferred on the Owner Trustee; provided, however, that, the
Owner Trustee shall have the right to decline to follow any such direction if
the Owner Trustee, being advised by counsel, determines that the action so
directed may not lawfully be taken, or if the Owner Trustee in good faith
determines that the action so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of Certificateholders
not parties to such direction; and provided, further that nothing in this
Agreement shall impair the right of the Owner Trustee to take any action deemed
proper by the Owner Trustee and which is not inconsistent with such direction by
the Certificateholders.
SECTION 4.4 Suits for Enforcement. The Owner Trustee, in its
discretion may, subject to the provisions of this Article IV, proceed to protect
and enforce its rights and the rights of the Certificateholders under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy, as the
Owner Trustee, being advised by counsel, shall deem most effectual to protect
and enforce any of the rights of the Owner Trustee or the Certificateholders.
SECTION 4.5 Owner Trustee May Enforce Claims without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Owner Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceedings instituted by the Owner
Trustee shall be brought in its own name or in its capacity as Owner Trustee.
Any recovery of judgment shall, after provision of or the payment of the
reasonable compensation, expenses, disbursements and advances of the Owner
Trustee, its agents and counsel, be for the ratable benefit of the
Certificateholders in respect of which such judgment has been recovered.
SECTION 4.6 Limitation on Rights of Certificateholders. (a) The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
(b) Except as provided herein, no Certificateholder shall have any
right to vote or in any manner otherwise
14
control the operation and management of the Certificateholders' interest or the
obligations of the parties hereto.
(c) No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Certificateholder previously shall have given to the
Owner Trustee a written notice of default and of the continuance thereof as
hereinbefore provided, and unless also the holders of Certificates evidencing a
Percentage of 51% or more shall have made written request upon the Owner Trustee
to institute such action, suit or proceeding in its own name as Owner Trustee
hereunder and shall have offered to the Owner Trustee such reasonable indemnity
as it may require against the costs, expenses, and liabilities to be incurred
therein or thereby, and the Owner Trustee, for 30 days after its receipt of such
notice, request, and offer of indemnity, shall have neglected or refused to
institute any such actions, suit, or proceeding; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Owner Trustee, that no one or more
Certificateholders shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of any other Certificateholders, or to obtain
or seek to obtain priority over or preference to any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable, and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Owner Trustee shall be
entitled to such relief as can be given either at law or in equity.
ARTICLE V
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver 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, in each
case, in such form as the Sponsor shall have approved as evidenced conclusively
by the Owner Trustee's execution thereof. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Basic Documents.
SECTION 5.2 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged)
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all of its responsibilities pursuant to the terms of this Agreement and the
Basic Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Agreement.
SECTION 5.3 Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust (except with respect to any actions to be taken by the
Servicer pursuant to the terms of the Servicing Agreement or under any other
Basic Document). Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any 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 with aggregate Percentage
Interests of 51% or more 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 from the Certificateholders with aggregate
Percentage Interests of 51% or more within 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 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 5.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligations to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the 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 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 5.3; and no implied duties or obligations
shall be read into this Agreement or any 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 record this
16
Agreement or 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 liens on any part of the Owner Trustee Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Trust Estate.
SECTION 5.5 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 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 Basic Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6 Restrictions. The Owner Trustee shall not take any
action that is inconsistent with the purposes of the Trust set forth in Section
2.3.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
SECTION 6.1 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 express terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents and
this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own willful misconduct or gross negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.3 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 an officer of the Owner Trustee absent willful misconduct or gross
negligence by such officer;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
the Servicer or any Certificateholder;
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(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes, or for any amounts
due with respect to the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiently of this Agreement or for the due execution
hereof by the Sponsor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other than
the certificate of authentication on the Certificates, and the Owner
Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to any Certificateholder, other than is
expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Sponsor, the Indenture Trustee, the Collateral Trustee
or the Servicer under any of the Basic Documents or otherwise; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of the Certificateholders with aggregate Percentage Interests of
[51%] or more, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any
such act.
SECTION 6.2 Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of
18
all reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Owner Trustee under the Basic Documents.
SECTION 6.3 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Sponsor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of _________. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement and the other Basic Documents to
which it is a party.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement and such other Basic
Documents to which it is a party, and this Agreement and such other
documents will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and such other
documents on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement
and the other Basic Documents to which it is a party, nor the consummation
by it of the transactions contemplated hereby or thereby nor compliance by
it with any of the terms or provisions hereof or thereof will contravene
any federal or _________ law, governmental rule or regulation governing
the banking or trust powers of the Owner Trustee or any judgment or order
binding on it, or constitute any default under its charter documents or
by-laws.
SECTION 6.4 Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper 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
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may, for all purposes hereof, rely on a
certificate, signed by the President or any Vice President or by the Treasurer
or other authorized officer of the relevant party, as to such fact of 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.
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(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents 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 Basic Document.
SECTION 6.5 Owner Trustee Not Liable for Certificates or Contracts.
(a) Without limiting the representations and warranties of the Owner Trustee set
forth in Section 6.3, the Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Basic Document or of the
Certificates (other than its execution thereof) or of any Contract or related
document.
(b) The Owner Trustee shall have no responsibility for or with
respect to the validity of any security interest in any Contract or Vehicle, the
perfection of any such security interest (whether as of the date hereof or at
any future time), the maintenance of or the taking of any action to maintain
such perfection, the existence or validity of any Contract, the validity of the
assignment of any Contract to the Trust or of any intervening assignment, the
review of any Contract, the completeness of any Contract, the receipt by it or
the Collateral Trustee of any Contract, the performance or enforcement of any
Contract, the existence, condition and ownership of any Vehicle, the existence
and enforceability of any insurance thereon, the compliance by the Servicer, the
Sponsor, the Indenture Trustee or the Collateral Trustee with any covenant,
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, the acts or
omissions of the Servicer, the Sponsor, the Collateral Trustee, the Indenture
Trustee or any Obligor, any action of the Servicer or the Collateral Trustee
taken in the name of the Owner Trustee or the Trust, any action by the Owner
Trustee taken at the instruction of the Servicer or the preparation and filing
of tax returns for the Trust. No recourse shall be had for any claim based on
any provision of this Agreement, the Basic Documents, the Certificates or any
Contract or assignment thereof against [Trustee] in its individual capacity, and
[Trustee] shall not have any personal obligation, liability or duty whatsoever
to any Certificateholder or any other Person with respect to any such claim, and
any such claim shall be
20
asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided herein, except for such liability as is
finally determined to have resulted from its own gross negligence or willful
misconduct.
SECTION 6.6 Not Acting in Individual Capacity. In accepting the
trusts hereby created, the Owner Trustee acts in its individual capacity, but in
the performance of its duties as Owner Trustee hereunder and under any document
authorized hereby, the Owner Trustee acts solely as trustee hereunder and not in
its individual capacity, except to the extent expressly agreed otherwise, and
all Persons, other than the Certificateholders as provided herein, having any
claim against the Owner Trustee by reason of the transactions contemplated
hereby shall look only to the Trust Estate for payment or satisfaction thereof,
except to the extent the Owner Trustee shall expressly agree otherwise in any
Basic Document to which it is a party.
SECTION 6.7 Interpretation of Trust Agreement. In the event that the
Owner Trustee is uncertain as to the application of any provision of this
Agreement or any other agreement relating to the transactions contemplated
hereby, or such provision is ambiguous as to its application or is, or appears
to be, in conflict with any other applicable provision hereof or any other
agreement relating to the transactions contemplated hereby, or in the event that
this Agreement or any other agreement relating to the transactions contemplated
hereby permits any determination by the Owner Trustee or is silent or incomplete
as to the course of action which the Owner Trustee is required to take with
respect to a particular set of facts, the Owner Trustee may seek instructions
from the Certificateholders and shall not be liable to any person to the extent
that it acts in good faith in accordance with the instructions of the
Certificateholders.
ARTICLE VII
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
SECTION 7.1 Owner Trustee's Fees and Expenses. Until the Trust has
been terminated in accordance with Section 9.1, as compensation for its services
hereunder, the Owner Trustee shall be entitled to receive the Owner Trustee's
Fee pursuant to Section ______ of the Servicing Agreement, payable in advance on
the Closing Date and on each [January] Payment Date. The following fees and
expenses of the Owner Trustee (in addition to the Owner Trustee's Fee) shall be
payable from the Trust Estate:
(a) except as otherwise expressly provided herein, all reasonable
expenses, disbursements and advances
21
incurred or made by the Owner Trustee in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(b) any loss, liability or expense incurred by the Owner Trustee
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Trust and its
duties hereunder and under any Basic Documents, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
SECTION 7.2 Indemnification. The Servicer shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the Basic Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder, except only that the Servicer shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from (i) its own willful misconduct or gross negligence or (ii) with
respect to the Owner Trustee, the inaccuracy of any representation or warranty
contained in Section 6.3 expressly made by the Owner Trustee. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In the event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Servicer, which approval shall not be unreasonably withheld.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 8.1 Eligibility Requirements for Owner Trustee. The Owner
Trustee hereunder shall at all times be an Eligible Bank. In case at any time
the Owner Trustee shall cease to be eligible in accordance with the provisions
of this
22
Section 8.1, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 8.2.
SECTION 8.2 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Sponsor. Upon receiving such notice of
resignation, the Sponsor shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Sponsor and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 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.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 8.1 and shall fail to resign after
written request therefor by the Sponsor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Sponsor or any Certificateholder on behalf of itself and
all others similarly situated may petition any court of competent jurisdiction
for the removal of the Owner Trustee and the appointment of a successor Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.2 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.3.
SECTION 8.3 Successor Owner Trustee. Any successor Owner Trustee
appointed as provided in Section 8.2 shall execute, acknowledge and deliver to
the Sponsor, and to its predecessor Owner Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Owner Trustee shall become effective and 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
hereunder, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall, upon payment of its charges, deliver or cause
to be delivered to the successor Owner Trustee the Contracts and any related
documents and statements held by it hereunder; and the Sponsor and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be
23
requested by the successor Owner Trustee for fully and certain vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section 8.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible under the provisions of Section 8.1.
Upon acceptance of appointment by a successor Owner Trustee as
provided in this Section 8.3, the successor Owner Trustee shall mail notice of
such succession to each Certificateholder at their addresses as shown in the
Certificate Register.
SECTION 8.4 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 the corporate trust business of the Owner Trustee,
shall be the successor for the Owner Trustee hereunder, provided such
corporation shall be eligible under the provisions of Section 8.1 without the
execution or filing of any paper or any further act on the party of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.5 Appointment of Co-Owner Trustee or Separate Owner
Trustee. 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 Trust may at the time be located, the Sponsor 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 separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Sponsor and the Owner Trustee may consider necessary or
desirable. If the Sponsor shall not have joined in such appointment within [15]
days after 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 8.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 8.3.
24
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,
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 Sponsor and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Sponsor.
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
25
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement. (a) This Agreement
(other than Article VII) and the Trust shall terminate and be of no further
force or effect, (i) upon the final distribution by the Paying Agent or the
Servicer, as the case may be, of all moneys or other property or proceeds of the
Trust Estate in accordance with Section ______ of the Servicing Agreement or
(ii) at the time provided in Section ________. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder, other than the
Sponsor as described in Section _________, shall not (i) operate to terminate
this Agreement or the Trust, nor (ii) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate nor (iii) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Sponsor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given promptly by the Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of termination of the Servicing
Agreement from the Servicer given pursuant to Section _________ of the Servicing
Agreement stating (i) the Payment Date upon which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment 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 Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to Certificateholders.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a second
written
26
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. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Sponsor.
(d) In no event shall the Trust established pursuant to this
Agreement remain in existence for more than 10 years from ____________, 199_.
SECTION 9.2 Dissolution upon Bankruptcy of the Sponsor. In the event
that any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding, voluntary or involuntary, under any federal or
state bankruptcy or similar law (each, an "Insolvency Event") shall occur with
respect to the Sponsor, this Agreement shall be terminated in accordance with
Section 9.1 60 days after the date of such Insolvency Event, unless, before the
end of such 60-day period the Owner Trustee shall have received written
instructions from each of the Certificateholders (other than the Sponsor) and
each of the Noteholders, to the effect that each such party disapproves of the
liquidation of the Contracts and termination of the Trust. Promptly after the
occurrence of any Insolvency Event with respect to the Sponsor, (i) the Sponsor
shall give the Indenture Trustee and the Owner Trustee written notice of such
Insolvency Event, (ii) the Owner Trustee shall, upon the receipt of such written
notice from the Sponsor, give prompt written notice to the Certificateholders of
the occurrence of such event and (iii) the Indenture Trustee shall, upon receipt
of written notice of such Insolvency Event from the Owner Trustee or the
Sponsor, give prompt written notice to the Noteholders of the occurrence of such
event; provided, however, that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a termination of the Trust
pursuant to the first sentence of this Section 9.2. Upon a termination pursuant
to this Section, the Owner Trustee shall direct the Collateral Trustee promptly
to sell the assets of the Trust in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of the
Trust shall be treated as collections under the Servicing Agreement.
27
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Supplements and Amendments. (a) This Agreement may be
amended from time to time by the Owner Trustee and the Sponsor, without the
consent of any of the Certificateholders or Noteholders, to cure any ambiguity,
to correct or supplement any provisions herein or therein which may be
inconsistent with any other provisions herein or therein, as the case may be, or
to add any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
opinion of counsel for the Sponsor or the Servicer, adversely affect in any
material respect the interests of any Certificateholder or any Noteholder.
(b) This Agreement may also be amended from time to time by the
Sponsor and the Owner Trustee, with the consent of (x) Noteholders owning a
majority in principal amount of the Notes outstanding and (y) Certificateholders
with an aggregate Percentage Interest of [51%] or more, 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
Certificateholders; provided, however, that no such amendment shall (a) reduce
in any manner the amount of, or delay the timing of, collections of Receivables
or distributions which are required to be made on any Note or any Certificate or
(b) reduce the aforesaid percentage of Note principal balance or Certificate
Percentage Interest required to consent to any such amendment, without the
unanimous consent of the Noteholders and the Certificateholders.
(c) Promptly after the execution of any amendment or consent
pursuant to this Section 10.1, the Owner Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders
or Noteholders under this Section 10.1 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders or Noteholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(e) 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.
28
(f) Upon the execution of any amendment to this Agreement, this
Agreement shall be modified in accordance therewith, and such amendment shall
form a part of this Agreement for all purposes; and every holder of a
Certificate theretofore or thereafter executed and delivered hereunder shall be
bound thereby.
(g) In connection with any amendment pursuant to this Section 10.1
the Owner Trustee shall be entitled to receive an opinion of counsel to the
Sponsor or the Servicer acceptable to the Owner Trustee to the effect that such
amendment is authorized or permitted by the Agreement.
SECTION 10.2 Notices. All communications and notices pursuant hereto
to the Sponsor, the Servicer, the Owner Trustee or the Certificate Registrar or
the Indenture Trustee shall be in writing and delivered or mailed to it at the
following address:
If to the Sponsor:
Advanta Auto Finance Corporation
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention:
Telecopy Number:
If to the Servicer:
_____________________________
_____________________________
_____________________________
Attention:
Telecopy Number:
If to the Owner Trustee:
_____________________________
_____________________________
_____________________________
Attention:
Telecopy Number:
If to the Certificate Registrar:
_____________________________
_____________________________
_____________________________
Attention:
Telecopy Number:
29
If to the Indenture Trustee or to the Noteholders:
_____________________________
_____________________________
_____________________________
Attention:
Telecopy Number:
or at such other address as the party may designate by notice to the other
parties hereto, which shall be effective when received.
All communications and notices pursuant hereto to a
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Certificate Register.
SECTION 10.3 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 10.4 Headings. The headings of the various Articles and
Sections herein and the Table of Contents are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
SECTION 10.5 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of ___________.
SECTION 10.6 Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 10.7 No Legal Title to Trust Estate in Certificateholder.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest only in accordance with Section
3.9 and Article IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest
in the 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 Trust Estate.
30
SECTION 10.8 Limitation on Rights of Others. Except for the terms of
Section 2.7, nothing in this Agreement, whether express or implied, shall be
construed to give to any Person other than the Owner Trustee and the Sponsor any
legal or equitable right, remedy or claim under or in respect of this Trust
Agreement or any covenants, conditions or provisions contained herein. Such
covenants, conditions and provisions are, and shall be held to be, for the sole
and exclusive benefit of the Owner Trustee and the Sponsor.
SECTION 10.9 Severability. Any provision of this Agreement 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 of any provision in any other
Basic Document, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. The provisions of this Agreement shall remain valid and
enforceable notwithstanding the invalidity, unenforceability, impossibility or
illegality of performance of any Basic Document.
SECTION 10.10 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee, the Sponsor and each Certificateholder and their respective successors
and assigns. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind its successors and assigns.
SECTION 10.11 No Implied Waiver. No term or provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing entered into as provided in Section 10.1 hereof; and
any such waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 10.12 No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and the Indenture Trustee and
each Noteholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time institute against the Sponsor or the Trust,
or join in any institution against the Sponsor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law in connection
with any obligations relating to the Certificates, the Notes, this Agreement or
any of the Basic Documents.
31
SECTION 10.13 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 Sponsor, the Servicer, the Owner Trustee, the Indenture
Trustee, the Collateral 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 Basic Documents.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized this ____ day
of ____________, 199_.
ADVANTA AUTO FINANCE CORPORATION
By:________________________________
Name:
Title:
___________________,
not in its individual capacity
but solely as Owner Trustee of
[ADVANTA AUTO RECEIVABLES TRUST
199 - ]
By:_______________________________________
Name:
Title:
__________________________________________,
as Servicer
By:_______________________________________
Name:
Title:
33
EXHIBIT A
[Form of Face Certificate]
FORM OF CERTIFICATE
[ADVANTA AUTO RECEIVABLES TRUST 199 - ]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST
IN ADVANTA AUTO FINANCE CORPORATION, [TRUSTEE] OR ANY AFFILIATES THEREOF, AND
NEITHER THIS CERTIFICATE NOR THE CONTRACTS NOR THE RECEIVABLES ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
No. R _________ ____% Percentage Interest
This certifies that ___________________________ is the registered
owner of an undivided _____ Percentage Interest in the [Advanta Auto Receivables
Trust 199_-_] (the "Trust"). The Trust Estate held by the Trust includes among
its assets a pool of installment sale contracts for new and used automobiles and
light duty trucks (the "Contracts") [and a security interest in the related
vehicles (the "Vehicles")], including, without limitation, and any and all
rights to receive payments thereunder after the close of business on _______,
199_. The Trust has been created pursuant to a Trust Agreement dated as of
_______, 199_ among Advanta Auto Finance Corporation, a Nevada corporation (the
"Sponsor"), __________, a ____________ banking corporation, not in its
individual capacity but solely as Owner Trustee (herein, together with its
permitted successors in the trusts hereunder, called the "Owner Trustee") of the
Trust, ____________________, a __________ corporation, as servicer (the
"Servicer") and the holders (the "Certificateholders") of undivided percentage
interests in the Trust, as amended and restated as of __________, 199_ (the
"Agreement").
This Certificate is one of the Certificates described in the
Agreement and is issued pursuant and subject to the Agreement. By acceptance of
this Certificate, the holder assents to and becomes bound by the Agreement. To
the extent not defined herein, all capitalized terms have the meanings assigned
to them in the Agreement.
THE RIGHTS TO RECEIVE PAYMENTS WITH RESPECT TO THIS CERTIFICATE ARE
SUBORDINATED TO THE PRIOR PAYMENT IN FULL OF ALL AMOUNTS OF PRINCIPAL AND
INTEREST ON THE NOTES.
A-1
Distributions on this Certificate will be made in accordance with
the terms of the Servicing Agreement by wire transfer to a bank account
previously identified by each Certificateholder of record and appearing on the
Certificate Register, without the presentation or surrender of this Certificate
or the making of any notation hereon. Except as otherwise provided in the
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 of the Collateral Trustee maintained for that purpose
at __________________________________________.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall have
the same effect as if set forth at this place.
The holder hereof, by its acceptance of this Certificate, agrees
that it will look solely to the funds in the Trust Estate to the extent
available for distribution to the holder hereof as provided in the Servicing
Agreement for payment hereunder and that the Owner Trustee in its individual
capacity is not personally liable to the holder hereof for any amounts payable
under this Certificate, the Agreement or the Servicing Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement or any Basic Document.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Owner Trustee. Copies of the
Agreement and all amendments thereto will be provided to any Certificateholder
free of charge upon a written request to the Owner Trustee.
A-2
IN WITNESS WHEREOF, [Advanta Auto Receivables Trust 199_-_] has
caused this Certificate to be duly executed by an authorized officer of the
Owner Trustee and attested by one of the Owner Trustee's authorized officers and
has caused the Owner Trustee's corporate seal to be impressed thereon.
Date: _____________ [ADVANTA AUTO RECEIVABLES TRUST
199_-_]
By: [Trustee], not in its individual
capacity but solely as Owner Trustee
[Seal] By:___________________________
Authorized Officer
Attest:
_______________________
Authorized Officer
A-3
[Form of Reverse of Certificate]
This Certificate represents a fractional undivided interest in the
Trust. This Certificate is limited in right of payment to certain collections
respecting the Contracts, all as more specifically set forth herein and in the
Agreement. This Certificate is not insured or guaranteed by any person or
governmental agency.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Certificateholders under the Agreement at any time by the Sponsor and the Owner
Trustee with the consent of the holders of Certificates evidencing [51%] of the
aggregate Percentage Interests and Noteholders owning a majority in principal
amount of the Notes outstanding. Any such consent by the holder of this
Certificate shall be conclusive and binding on such holder and upon all future
holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of any of the
Certificateholders or Noteholders.
As provided in the Agreement and subject to the limitations set
forth in the following paragraph, the transfer of this Certificate is
registerable in the Certificate Register of the Certificate Registrar upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Owner Trustee at ________________, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder thereof or his or her attorney
duly authorized in writing, and thereupon one or more new Certificates
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same Percentage Interest as requested by
the holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
A-4
The Owner Trustee and 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 neither
the Owner Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement (other
than Article VII) and the Trust created thereby shall terminate on the Payment
Date next succeeding the Due Period during which the last Contract shall have
been liquidated (but not later than six months after completion of all
collection efforts).
ASSIGNMENT
For value received, the undersigned, subject to the provisions of
Sections 3.2 and 3.8 of the Agreement, sells, assigns and transfers unto (name
and address, including zip code and taxpayer I.D. or social security number of
assignee) _____________________________________ the within Certificate and does
hereby irrevocably constitute and appoint _______________________ attorney to
transfer the said Certificate on the books kept for registration thereof with
full power of subscription on the premises.
Dated: ______________________
Signature Guaranteed:
NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever. Such
signature must be guaranteed by a member of the New York Stock Exchange or a
commercial bank or trust company.
A-5
