TRUST AGREEMENT between LONG BEACH ACCEPTANCE RECEIVABLES CORP. and [NAME OF OWNER TRUSTEE] Owner Trustee Dated as of ____________, 20__
Exhibit
4.4
between
and
[NAME
OF
OWNER TRUSTEE]
Owner
Trustee
Dated
as
of ____________, 20__
TABLE
OF CONTENTS
Page
|
||
ARTICLE
I. DEFINITIONS
|
1
|
|
SECTION 1.1.
|
Capitalized
Terms
|
1
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SECTION 1.2.
|
Other
Definitional Provisions.
|
2
|
|
||
ARTICLE
II. ORGANIZATION
|
3
|
|
SECTION 2.1.
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Name
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3
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SECTION 2.2.
|
Office
|
3
|
SECTION 2.3.
|
Purposes
and Powers
|
3
|
SECTION 2.4.
|
Appointment
of Owner Trustee
|
6
|
SECTION 2.5.
|
Initial
Capital Contribution to the Trust
|
6
|
SECTION 2.6.
|
Declaration
of Trust
|
6
|
SECTION 2.7.
|
Title
to Owner Trust Estate
|
6
|
SECTION 2.8.
|
Situs
of Trust
|
7
|
SECTION 2.9.
|
Representations
and Warranties of the Transferor
|
7
|
SECTION 2.10.
|
Covenants
of the Certificateholder
|
9
|
SECTION 2.11.
|
Federal
Income Tax Treatment of the Trust.
|
9
|
ARTICLE
III. CERTIFICATES AND TRANSFER OF INTEREST
|
10
|
|
SECTION 3.1.
|
Initial
Ownership
|
10
|
SECTION 3.2.
|
The
Certificates
|
10
|
SECTION 3.3.
|
Authentication
of Certificates
|
10
|
SECTION 3.4.
|
Registration
of Certificates
|
11
|
SECTION 3.5.
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
12
|
SECTION 3.6.
|
Persons
Deemed Certificateholders
|
12
|
SECTION 3.7.
|
Transfer
of Certificates.
|
12
|
SECTION 3.8.
|
Disposition
In Whole But Not In Part
|
14
|
ARTICLE
IV. VOTING RIGHTS AND OTHER ACTIONS
|
14
|
|
SECTION 4.1.
|
Prior
Notice to Certificateholder with Respect to Certain
Matters
|
14
|
SECTION 4.2.
|
Action
by Certificateholder with Respect to Certain Matters
|
15
|
SECTION 4.3.
|
Restrictions
on Certificateholder's Power.
|
15
|
SECTION 4.4.
|
[Rights
of Note Insurer
|
16
|
16
|
||
SECTION 5.1.
|
General
Authority.
|
16
|
SECTION 5.2.
|
General
Duties
|
16
|
SECTION 5.3.
|
Action
upon Instruction.
|
17
|
SECTION 5.4.
|
No
Duties Except as Specified in this Agreement or in
Instructions
|
18
|
SECTION 5.5.
|
No
Action Except under Specified Documents or Instructions
|
18
|
SECTION 5.6.
|
Restrictions
|
18
|
i
Page
|
||
ARTICLE
VI. CONCERNING THE OWNER TRUSTEE
|
19
|
|
SECTION 6.1.
|
Acceptance
of Trusts and Duties
|
19
|
SECTION 6.2.
|
Furnishing
of Documents
|
20
|
SECTION 6.3.
|
Representations
and Warranties
|
20
|
SECTION 6.4.
|
Reliance;
Advice of Counsel.
|
21
|
SECTION 6.5.
|
Not
Acting in Individual Capacity
|
21
|
SECTION 6.6.
|
Owner
Trustee Not Liable for Certificates or Receivables
|
22
|
SECTION 6.7.
|
Owner
Trustee May Own Notes
|
22
|
SECTION 6.8.
|
Payments
from Owner Trust Estate
|
22
|
SECTION 6.9.
|
Doing
Business in Other Jurisdictions
|
22
|
ARTICLE
VII. COMPENSATION OF OWNER TRUSTEE
|
23
|
|
SECTION 7.1.
|
Owner
Trustee's Fees and Expenses
|
23
|
SECTION 7.2.
|
Indemnification
|
23
|
SECTION 7.3.
|
Payments
to the Owner Trustee
|
23
|
SECTION 7.4.
|
Non-recourse
Obligations
|
23
|
ARTICLE
VIII. TERMINATION OF TRUST AGREEMENT
|
24
|
|
SECTION 8.1.
|
Termination
of Trust Agreement.
|
24
|
ARTICLE
IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
25
|
|
SECTION 9.1.
|
Eligibility
Requirements for Owner Trustee
|
25
|
SECTION 9.2.
|
Resignation
or Removal of Owner Trustee
|
25
|
SECTION 9.3.
|
Successor
Owner Trustee
|
26
|
SECTION 9.4.
|
Merger
or Consolidation of Owner Trustee
|
27
|
SECTION 9.5.
|
Appointment
of Co-Indenture Trustee or Separate Indenture Trustee
|
27
|
ARTICLE
X. MISCELLANEOUS
|
28
|
|
SECTION 10.1.
|
Supplements
and Amendments.
|
28
|
SECTION 10.2.
|
No
Legal Title to Owner Trust Estate in Certificateholder
|
29
|
SECTION 10.3.
|
Limitations
on Rights of Others
|
29
|
SECTION 10.4.
|
Notices.
|
30
|
SECTION 10.5.
|
Severability
|
31
|
SECTION 10.6.
|
Separate
Counterparts
|
31
|
SECTION 10.7.
|
Assignments
|
31
|
SECTION 10.8.
|
No
Recourse
|
31
|
SECTION 10.9.
|
Headings
|
31
|
SECTION 10.10.
|
GOVERNING
LAW
|
31
|
ii
Page
|
||
SECTION 10.11.
|
Servicer
|
32
|
SECTION 10.12.
|
[Limitation
on Liability
|
32
|
SECTION 10.13.
|
No
Petition
|
32
|
SECTION 10.14.
|
Bankruptcy
Matters
|
32
|
SECTION 10.15.
|
[Effect
of Policy Expiration Date
|
33
|
|
EXHIBITS
EXHIBIT
A
- Form
of Certificate of Trust
EXHIBIT
B
- Form
of Certificate
EXHIBIT
C
- Form
of Transferee's Certificate for Qualified Institutional Buyers
EXHIBIT
D
- Form
of Transferee's Certificate for Institutional Accredited Investors
EXHIBIT
E
- Form
of Transferor’s Certificate
EXHIBIT
F
- Form
of ERISA Certificate
EXHIBIT
G
- Form
of Flow Through Entity Certificate
iii
TRUST
AGREEMENT dated as of __________, 20__ between LONG BEACH ACCEPTANCE RECEIVABLES
CORP., a Delaware corporation (the "Transferor"), and ______________________,
a
___________________, acting hereunder not in its individual capacity but solely
as Owner Trustee (in such capacity, the "Owner Trustee").
ARTICLE
I.
SECTION 1.1. Capitalized
Terms.
For all
purposes of this Agreement, the following terms shall have the meanings set
forth below, terms defined in the singular shall include the plural:
"Agreement"
shall mean this Trust Agreement, as the same may be amended and supplemented
from time to time.
"Business
Trust Statute" shall mean Chapter 38 of Title 12 of the Delaware Code, 12
Del.
Code§ 3801
et.
seq.
as the
same may be amended from time to time.
"Certificate"
means a trust certificate evidencing the entire beneficial interest in the
Trust, substantially in the form of Exhibit B attached hereto.
"Certificate
of Trust" shall mean the Certificate of Trust in the form of Exhibit A to be
filed for the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
"Certificate
Register" and "Certificate Registrar" shall mean the register mentioned and
the
registrar appointed pursuant to Section 3.4.
"Certificateholder"
or "Holder" shall mean the person in whose name a Certificate is registered
on
the Certificate Register.
"Instructing
Party" shall have the meaning assigned to such term in Section 5.3.
"Non-Registered
Trust Certificate" means a Certificate other than a Registered Trust
Certificate.
"Owner
Trust Estate" shall mean all right, title and interest of the Trust in and
to
the property and rights assigned to the Trust pursuant to Article II of the
Sale
and Servicing Agreement, all funds on deposit from time to time in Collection
Account or the Note Account and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement [and the Spread Account Agreement].
"Registered
Trust Certificate" means a Certificate that was sold pursuant to a registration
statement that has been filed and has become effective under the Securities
Act.
"Secretary
of State" means the Secretary of State of the State of Delaware.
"Transferee's
Certificate" means a certificate in the form of Exhibits C or D
hereto.
"Transferor's
Certificate" means a certificate in the form of Exhibit E hereto.
"Treasury
Regulations" means regulations, including proposed or temporary regulations,
promulgated under the Code. References herein to specific provisions of proposed
or temporary regulations shall include analogous provisions of final Treasury
Regulations or other successor Treasury Regulations.
"Trust"
means the trust established by this Agreement.
["___"
means [Name of owner trustee], a Delaware banking corporation, in its individual
capacity.]
SECTION
1.2. Other
Definitional Provisions.
(a) Capitalized
terms used herein and not otherwise defined herein have the meanings assigned
to
them in Annex A to the Sale and Servicing Agreement.
(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 as in effect on the date of this Agreement or
any
such certificate or other document, as applicable. 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 definitions contained in this Agreement
or
in any such certificate or other document 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.
2
ARTICLE
II.
Organization
SECTION
2.1. Name.
There
is hereby formed a trust to be known as "Long Beach Acceptance Auto Receivables
Trust 20__-__," in which name the Owner Trustee may conduct the business of
the
Trust, make and execute contracts and other instruments on behalf of the Trust
and xxx and be sued on behalf of the Trust.
SECTION
2.2. Office.
The
principal office of the Trust, and such additional offices as the
Certificateholder may direct the Owner Trustee to establish, shall be located
at
such place or places inside or outside the State of Delaware as the
Certificateholder may unanimously designate from time to time. The
Certificateholder hereby designates the office of the Owner Trustee at
_____________, ________________________, ___________, _____________ _________,
Attention: ________________ as the principal office of the Trust.
SECTION
2.3. Purposes
and Powers.
The
Trust and the parties to this Agreement shall be subject to the following
provisions regarding the purposes, powers and procedures of the
Trust:
(a) The
purpose of the Trust is to engage solely in the following
activities:
(i) to
acquire the Owner Trust Estate pursuant to Article II of the Sale and Servicing
Agreement;
(ii) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this
Agreement, to sell and exchange the Notes and to transfer the Certificate to
the
Transferor and to pay interest on and principal of the Notes and distributions
on the Certificates;
(iii) with
the
proceeds of the sale of the Notes, [to fund the Spread Account, and] to pay
the
balance to the Transferor pursuant to the Sale and Servicing Agreement;
(iv) to
assign, grant, transfer, pledge, mortgage and convey the Pledged Property to
the
Indenture Trustee pursuant to the Indenture for the benefit of [the Note Insurer
and] the Noteholders and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Sale and Servicing Agreement [and the Spread
Account Agreement] any portion of the Pledged Property released from the Lien
of
the Indenture;
(v) to
enter
into and perform its obligations under the Basic Documents to which it is a
party;
(vi) 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
3
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholder and the
Noteholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Agreement or the Basic
Documents.
(b) The
Trust's only assets shall be the Owner Trust Estate. Other than the Notes,
the
Trust shall not secure any indebtedness with any of the Owner Trust
Estate.
(c) Other
than with respect to the transfer to the Trust of the Trust Assets, the Trust
shall not do any of the following: acquire any obligations of, make loans or
advances to, borrow funds from, assume or guarantee the obligations or
liabilities of, have its obligations or liabilities guaranteed by, or hold
itself out as responsible for the debts and obligations of the Owner Trustee,
the Certificateholder, LBAC, the Indenture Trustee or any other person or
entity.
(d) The
Owner
Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with
any part of the Owner Trust Estate except in accordance with the specific
limitations set forth in this Agreement and the other Basic Documents to which
the Trust is a party.
(e) The
Trust
shall, in all dealings with the public, identify itself under the name of the
Trust and as a separate and distinct entity from any other Person or entity.
All
transactions and agreements between the Trust and third parties shall be
conducted in the name of the Trust as an entity separate and independent from
the Owner Trustee, the Indenture Trustee, the Transferor, LBAC and the
Certificateholder.
(f) All
transactions and agreements between the Trust, on the one hand, and any of
the
Owner Trustee, the Indenture Trustee, the Trust Collateral Agent, the Custodian,
the Transferor, LBAC and the Certificateholder, on the other hand, shall reflect
the separate legal existence of each entity and will be formally documented
in
writing. The pricing and other material terms of all such transactions and
agreements shall be on terms substantially similar to those that would be
available on an arm's-length basis with unaffiliated third parties.
(g) The
Trust
shall not commingle its funds and other assets with those of any other Person
or
business entity and shall maintain its assets and liabilities in such a manner
that it shall not be costly or difficult to segregate, ascertain or identify
its
individual assets and liabilities from those of any other person or entity.
The
Owner Trustee shall hold the Owner Trust Estate on behalf of the
Trust.
(h) The
Trust
shall pay its liabilities and losses as they become due from the Owner Trust
Estate, provided,
however,
that
none of the Owner Trust Estate shall be used to pay the liabilities (including
liability in respect of guaranties) and losses of the Transferor, LBAC, the
Indenture Trustee, the Trust Collateral Agent, the Custodian or the
Certificateholder. The Trust has been structured to maintain capital in an
amount reasonably sufficient to meet the anticipated needs of the
Trust.
4
(i) The
Trust
shall not share any of the same officers or other employees with the Servicer,
the Transferor, LBAC, the Indenture Trustee, the Trust Collateral Agent, the
Custodian or the Certificateholder.
(j) The
Trust
shall not, jointly with the Servicer, the Transferor, LBAC, the Indenture
Trustee, the Trust Collateral Agent, the Custodian or the Certificateholder
contract or do business with vendors or service providers or share overhead
expenses.
(k) The
Trust
shall maintain its own bank accounts, books and records and annual financial
statements prepared in accordance with generally accepted accounting principles,
separate from those of the Owner Trustee, the Indenture Trustee, the Trust
Collateral Agent, the Custodian, the Transferor, LBAC and the Certificateholder.
The foregoing will reflect that the assets and liabilities of and all
transactions and transfers of funds involving the Trust shall be separate from
those of each such other entity, and the Trust shall pay or bear the cost of
the
preparation of its own financial statements and shall not pay or bear the cost
of the preparation of the financial statements of any such other entity. Neither
the accounting records nor the financial statements of the Trust will indicate
that the Owner Trust Estate is available to pay creditors of the Owner Trustee,
the Indenture Trustee, the Trust Collateral Agent, the Custodian, the
Transferor, LBAC or the Certificateholder or any other person or
entity.
(l) The
Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the
Certificateholder and the Transferor and the delivery to the Owner Trustee
by
each of the Certificateholder and the Transferor of a certificate stating that
such entity reasonably believes that the Trust is insolvent.
(m) Each
of
the Owner Trustee and the Transferor covenants and agrees that it will not
at
any time institute against any Certificateholder, or join in any institution
against any Certificateholder of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any United States
of America federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates or this Agreement. The Owner Trustee
and the Transferor each covenants and agrees that it will not, in any capacity,
seek the substantive consolidation of the assets of the Trust with any
Certificateholder.
(n) The
Certificates cannot be transferred other than pursuant to Section
3.7.
(o) The
Owner
Trustee may, pursuant to Section 5.2 of this Agreement, delegate certain
administrative duties relating to the Trust to specified entities (other than
the Certificateholder), which will be authorized to prepare on behalf of the
Trust all documents, reports, filings, instruments, certificates and opinions
as
it shall be the duty of the Trust to prepare, file and deliver. However, the
Owner Trustee may not delegate any such administrative duties to the
Certificateholder, and the Certificateholder may not perform any of the Trust's
duties or obligations.
(p) The
Certificates shall entitle the Certificateholder only to the benefits and
distributions as are expressly set forth in this Agreement.
5
(q) The
Trust
and this Agreement may not be revoked or terminated except in accordance with
Section 8.1 of this Agreement and in no event shall the Certificateholder have
the ability to terminate the Trust unilaterally.
(r) The
Trust
shall not consensually merge or consolidate with any of the Owner Trustee,
the
Transferor, LBAC or the Certificateholder.
(s) Neither
the Transferor nor the Certificateholder shall request or instruct 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 contrary to the limited purposes of the Trust, and the Owner
Trustee shall be under no obligation to comply with any such request or
instruction if given.
SECTION
2.4. Appointment
of Owner Trustee.
The
Transferor hereby appoints the Owner Trustee as trustee of the Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION
2.5. Initial
Capital Contribution to the Trust.
The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of
the
foregoing contribution, which shall constitute the initial property of the
Trust. The Transferor shall pay organizational expenses of the Trust as they
may
arise.
SECTION
2.6. Declaration
of Trust.
The
Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholder, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. Effective as of
the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and to the extent not inconsistent herewith, in the Business Trust
Statute with respect to accomplishing the purposes of the Trust. The Owner
Trustee shall file the Certificate of Trust with the Secretary of
State.
The
Certificateholder shall not have any personal liability for any liability or
obligation of the Trust.
SECTION
2.7. Title
to Owner Trust Estate
(a) Legal
title to all the Owner Trust Estate shall be vested at all times in the Trust
as
a separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee and/or a separate trustee, as the case may be.
(b) The
Certificateholder shall not have legal title to any part of the Owner Trust
Estate. The Certificateholder shall be entitled to receive distributions with
respect to its undivided ownership interest therein only in accordance with
the
Sale and Servicing Agreement and the Spread Account Agreement. No transfer,
by
operation of law or otherwise, of any right, title or interest by the
Certificateholder of its ownership interest in the Owner Trust Estate shall
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any
part
of the Owner Trust Estate.
6
SECTION
2.8. Situs
of Trust.
The
Trust shall be administered in the State of Delaware.
SECTION
2.9. Representations
and Warranties of the Transferor.
The
Transferor makes the following representations and warranties on which the
Owner
Trustee relies in accepting the Trust Assets in trust and issuing the
Certificates [and upon which the Note Insurer relies in issuing the Note
Policy]:
(a) Organization
and Good Standing.
The
Transferor is duly organized and validly existing as a Delaware corporation
with
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted and
is
proposed to be conducted pursuant to this Agreement and the Basic Documents
to
which it is a party.
(b) Due
Qualification.
The
Transferor is duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of its property, the conduct
of
its business and the performance of its obligations under this Agreement and
the
Basic Documents to which it is a party requires such qualification.
(c) Power;
Authority; Execution; Enforceability.
The
Transferor has the corporate power and authority to execute and deliver this
Agreement and to carry out its terms; the Transferor has full power and
authority to sell and assign the property to be conveyed and assigned to and
deposited with the Trust and the Transferor has duly authorized such conveyance
and assignment and deposit to the Trust by all necessary corporate action;
and
the execution, delivery and performance of this Agreement and the other Basic
Documents to which it is a party has been duly authorized by the Transferor
by
all necessary corporate action. The Transferor has duly executed this Agreement
and the other Basic Documents to which it is a party, and this Agreement and
the
other Basic Documents to which it is a party constitute the legal, valid and
binding obligations of the Transferor, enforceable against the Transferor in
accordance with their terms.
(d) No
Consent Required.
No
consent, license, approval or authorization or registration or declaration
with,
any Person or with any governmental authority, bureau or agency is required
to
be obtained by the Transferor in connection with the execution, delivery or
performance of this Agreement and the Basic Documents to which the Transferor
is
a party, except for such as have been obtained, effected or made.
(e) No
Violation.
The
consummation of the transactions contemplated by this Agreement and the other
Basic Documents and the fulfillment of the terms hereof and thereof do not
conflict with, result in any breach of any of the terms and provisions of,
or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Transferor, or any indenture,
agreement or other instrument to which the Transferor 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 Transferor's knowledge, any order, rule or regulation
applicable to the Transferor of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties.
7
(f) No
Proceedings.
There
are no proceedings or investigations pending or, to its knowledge threatened
against it before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over it or its
properties (A) asserting the invalidity of this Agreement or any of the Basic
Documents to which the Transferor is a party, (B) seeking to prevent the
issuance of the Certificates or the Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Basic Documents to
which the Transferor is a party, (C) seeking any determination or ruling that
might materially and adversely affect its performance of its obligations under,
or the validity or enforceability of, this Agreement or any of the Basic
Documents to which the Transferor is a party, or (D) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of the
Notes or the Certificates.
(g) No
Liens.
Upon
the conveyance, assignment or other transfer of any of the Trust Assets by
the
Transferor to the Trust pursuant to the Sale and Servicing Agreement, the
Transferor will have conveyed to the Trust good title, free and clear of any
lien, encumbrance or other interests of others (including without limitation,
any claim of any creditor of the Transferor or any of its Affiliates) of any
nature and the Trust will have the right to Grant and deliver the Pledged
Property to the Indenture Trustee in accordance with the Indenture and upon
the
Grant and delivery of the Pledged Property by the Trust to the Indenture Trustee
in the manner contemplated by the Indenture, and assuming the validity and
binding effect of the Indenture, the Indenture Trustee will have obtained a
valid first priority security interest therein, prior to all liens.
(h) Records.
Immediately upon the sale or other delivery of any Trust Assets to the Trust
pursuant to the Sale and Servicing Agreement, the Transferor will make any
appropriate notations on its records to indicate that the Trust Assets have
been
transferred to the Trust pursuant to the Sale and Servicing Agreement and,
to
the extent it constitutes Pledged Property, has been pledged by the Trust to
the
Indenture Trustee to secure payment of the Notes.
(i) No
Bankruptcy Petition.
The
Transferor has no present intent to cause a voluntary bankruptcy of the
Trust.
(j) Separate
Entity.
The
Transferor will hold itself out to the public under its own name as a separate
and distinct entity and conduct its business so as not to mislead others as
to
the identity of the entity under which those others are concerned. Without
limiting the generality of the foregoing, all oral and written communications,
including without limitation, all letters, invoices, contracts, statements
and
applications will be made solely in the name of the Trust if they are made
on
behalf of the Trust and solely in the name of the Transferor if they are made
on
behalf of the Transferor.
8
(k) Financial
Statements.
The
Transferor will disclose in all financial statements that the assets of the
Trust are not available to the Transferor's creditors.
SECTION
2.10. Covenants
of the Certificateholder.
The
Certificateholder, by its acceptance of a Certificate, agrees:
(a) to
be
bound by the terms and conditions of the Certificates of which the
Certificateholder is the beneficial owner and of this Agreement and the other
Basic Documents, including any supplements or amendments hereto and thereto
and
to perform the obligations of a Certificateholder as set forth therein or
herein, in all respects as if it were a signatory hereto. This undertaking
is
made for the benefit of the Trust, the Owner Trustee [and the Note Insurer];
and
(b) until
one
year and one day after the completion of the events specified in Section 8.1(d),
not to, for any reason, institute proceedings for the Trust to be adjudicated
a
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Trust, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating
to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a substantial
part of its property, or cause or permit the Trust to make any assignment for
the benefit of its creditors, or admit in writing its inability to pay its
debts
generally as they become due, or declare or effect a moratorium on its debt
or
take any action in furtherance of any such action.
SECTION
2.11. Federal
Income Tax Treatment of the Trust.
(a) For
so
long as the Trust has a single owner for federal income tax purposes, it will,
pursuant to Treasury Regulations promulgated under section 7701 of the Code,
be
disregarded as an entity distinct from the Certificateholder for all federal
income tax purposes. Accordingly, for federal income tax purposes, the
Certificateholder will be treated as (i) owning all assets owned by the Trust,
(ii) having incurred all liabilities incurred by the Trust, and (iii) all
transactions between the Trust and the Certificateholder will be disregarded.
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 foregoing
characterization.
(b) In
the
event that the Trust has two or more equity owners for federal income tax
purposes, the Trust will be treated as a partnership. At any such time that
the
Trust has two equity owners, this Agreement will be amended, in accordance
with
Section 10.1 herein, and appropriate provisions will be added so as to provide
for treatment of the Trust as a partnership. In no event, however, will the
Trust engage in any activity which would cause the Trust to become an
association or publicly traded partnership, taxable as a corporation for Federal
income tax purposes.
9
(c) Neither
the Owner Trustee nor any Certificateholder will, under any circumstances,
and
at any time, make an election on IRS From 8832 or otherwise, to classify the
Trust as an association taxable as a corporation for federal, state or any
other
applicable tax purpose.
ARTICLE
III.
Certificates
and Transfer of Interest
SECTION
3.1. Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Transferor pursuant to
Section 2.5 and until the issuance of the Certificates, the Transferor shall
be
the sole beneficiary of the Trust.
SECTION
3.2. The
Certificates.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee. A Certificate bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so
authorized prior to the authentication and delivery of such Certificate or
did
not hold such offices at the date of authentication and delivery of such
Certificate. A transferee of a Certificate shall become a Certificateholder,
and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in such
transferee's name pursuant to Section 3.4.
SECTION
3.3. Authentication
of Certificates.
Concurrently with the conveyance of the Receivables to the Trust pursuant to
the
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates
to
be executed on behalf of the Trust, authenticated and delivered to or upon
the
written order of the Transferor, signed by its chairman of the board, its
president or any vice president, its treasurer or any assistant treasurer
without further corporate action by the Transferor, in authorized denominations.
No Certificate shall entitle its holder to any benefit under this Agreement,
or
shall be valid for any purpose, unless there shall appear on such Certificate
a
certificate of authentication substantially in the form set forth in
Exhibit
B,
executed by the Owner Trustee or [___] as the Owner Trustee's authentication
agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. Each Certificate shall be dated the date of its
authentication.
SECTION
3.4. Registration
of Certificates
(a) The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 2.2, a Certificate Register in which, subject
to
such reasonable regulations as it may prescribe, the Owner Trustee shall provide
for the registration of the Certificates and of transfers and exchanges of
the
Certificates as herein provided. The Owner Trustee shall be the initial
Certificate Registrar.
(b) The
Certificate Registrar shall provide the Trust Collateral Agent with the name
and
address of the Certificateholder on the Closing Date. Upon any transfer of
a
Certificate, the Certificate Registrar shall notify the Trust Collateral Agent
of the name and address of the transferee in writing, by facsimile, on the
day
of such transfer.
10
(c) Upon
surrender for registration of transfer of a Certificate at the office or agency
maintained pursuant to Section 2.2, the Owner Trustee shall execute,
authenticate and deliver (or shall cause the Owner Trustee as its authenticating
agent to authenticate and deliver), in the name of the designated transferee,
a
new Certificate dated the date of authentication by the Owner Trustee or any
authenticating agent.
(d) A
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by the
Owner Trustee in accordance with its customary practice.
(e) No
service charge shall be made for any registration of transfer or exchange of
a
Certificate, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer or exchange of such
Certificate.
(f) [In
furtherance of and in limitation of the foregoing, the Certificateholder, by
acceptance of its Certificate, specifically acknowledges that it has no right
to
or interest in any monies at any time held pursuant to the Spread Account
Agreement prior to the release of such monies pursuant to Section 5.6(d) of
the
Sale and Servicing Agreement, such monies being held in trust for the benefit
of
the Noteholders and the Note Insurer. Notwithstanding the foregoing, in the
event that it is ever determined that provisions of the Sale and Servicing
Agreement and the Spread Account Agreement shall be considered to constitute
a
security agreement and the Transferor and the Certificateholder hereby grant
to
the Collateral Agent for the benefit of the Noteholders and the Note Insurer
a
first priority perfected security interest in such amounts, to be applied as
set
forth in Section 3.03 of the Spread Account Agreement. In addition the
Certificateholder, by acceptance of its Certificate, hereby appoints the
Transferor as its agent to pledge a first priority perfected security interest
in the Spread Account, and any amounts held therein from time to time to the
Collateral Agent pursuant to the Spread Account Agreement and agrees to execute
and deliver such instruments of conveyance, assignment, grant and confirmation,
as well as financing statements, in each case as [the Note Insurer] shall
consider reasonably necessary in order to perfect the Collateral Agent's
Security Interest in the Collateral (as such terms are defined in the Spread
Account Agreement).]
SECTION
3.5. Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar, the Owner Trustee [and (unless a Note Insurer
Default shall have occurred and be continuing) the Note Insurer,] such security
or indemnity as may be required by them to save each of them harmless, then
in
the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, the Owner Trustee on behalf of the Trust shall execute and
the
Owner Trustee, or [___], as the Owner Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like class, tenor
and denomination. In connection with the issuance of any new Certificate under
this Section, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
11
SECTION
3.6. Persons
Deemed Certificateholders.
Every
Person by virtue of becoming a Certificateholder in accordance with this
Agreement shall be deemed to be bound by the terms of this Agreement. Prior
to
due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar [and the Note Insurer] and any agent of
the
Owner Trustee, the Certificate Registrar [and the Note Insurer,] may treat
the
person in whose name any Certificate shall be registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
distributions pursuant to the Sale and Servicing Agreement and the Spread
Account Agreement and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar [or the Note Insurer] nor any agent of the
Owner Trustee, the Certificate Registrar [or the Note Insurer] shall be bound
by
any notice to the contrary.
SECTION
3.7. Transfer
of Certificates.
(a) No
transfer of a Certificate shall be made unless (I) such transfer (x) is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or (y) is exempt from the registration
requirements under the Securities Act and such state securities laws and (II)
such transfer is to a Person that satisfies the requirements of paragraph
(a)(2)(i) or (a)(2)(ii) of Rule 3a-7 as then in effect or any successor rule
("Rule 3a-7") under the Investment Company Act.
(b) Each
prospective purchaser of a Non-Registered Certificate not held in book-entry
form shall deliver a completed and duly executed Transferee's Certificate (in
the form of Exhibit
C
hereto
for "qualified institutional buyers" as defined in Rule 144A of the Securities
Act ("Rule 144A") or Exhibit
D
hereto
for "accredited investors" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act) to the Owner Trustee and
to
the Transferor for inspection prior to effecting any requested transfer. Each
prospective seller of a Non-Registered Certificate (other than with respect
to
the initial transfer of any such Certificate by the Transferor shall deliver
a
completed and duly executed Transferor's Certificate (in the form of
Exhibit
E
hereto)
to the Owner Trustee for inspection prior to effecting any requested transfer.
The Transferor and the Owner Trustee may conclusively rely upon the information
contained in any such Transferee's Certificate or Transferor's Certificate
in
the absence of actual knowledge to the contrary.
12
(c) In
connection with any transfer, the Owner Trustee may (except in the case of
(x)
the initial transfer of any such Certificate by the Transferor, (y) a transfer
to a "qualified institutional buyer" who delivers a Transferee's Certificate
in
the form of Exhibit C hereto, or (z) a transfer to a "accredited investor"
who
delivers a Transferee's Certificate in the form of Exhibit D hereto) require
an
opinion of counsel satisfactory to the Owner Trustee and the Transferor to
the
effect that such transfer may be effected without registration under the
Securities Act, which opinion of counsel, if so required, shall be addressed
to
the Transferor and the Owner Trustee and shall be secured at the expense of
the
holder of a Certificate. The Owner Trustee may conclusively rely upon the
representation of any purchaser made to the Owner Trustee, and upon such opinion
of counsel, and shall be fully protected in so doing.
(d) No
transfer of a Certificate shall be made to any Person unless the Owner Trustee
has received a certificate (substantially in the form of Exhibit
F
hereto)
from such transferee to the effect that such transferee is not a Plan, and
is
not acting on behalf of or investing the assets of a Plan. The preparation
and
delivery of the certificate referred to above shall not be an expense of the
Trust, the Owner Trustee or the Transferor but shall be borne by the transferee.
Each transferee of a beneficial ownership interest in a book-entry Certificate
shall be deemed to represent that it is not a Plan and is not acting on behalf
of or investing the assets of a Plan.
(e) No
transfer of a Certificate shall be made to any Person unless the Owner Trustee
and Transferor have received a certificate (substantially in the form of Exhibit
G hereto) from such transferee to the effect that (i) such transferee is
acquiring such certificate for its own behalf and is not acting as agent or
custodian for any other Person or entity in connection with such acquisition,
(ii) if the transferee is a partnership, grantor trust or S corporation for
federal income tax purposes (a "Flow Through Entity"), any certificate (and
interest in the Trust in the aggregate) owned by such Flow Through Entity will
represent less than 50% of the value of the assets owned by such Flow Through
Entity and no special allocation of income, gain, loss, deduction or credit
from
such certificate will be made among the beneficial owners of such Flow Through
Entity, and (iii) the transferee is a United States Person within the meaning
of
the Code.
(f) No
transfer, pledge or encumbrance of the Certificate shall be made to any Person
unless (A) such Person is a Rated Entity, a Bankruptcy Remote Entity or a
business trust established under Chapter 38 of Title 12 of the Delaware Code,
12
Del. C. § 3801 et seq. that is a Bankruptcy Remote Entity, or (B) such pledge is
made to GCFP pursuant to the Credit and Security Agreement; provided,
however,
that in
the event GCFP forecloses on its security interest in the Certificate, the
Certificate may be registered in the name of a Person that is not a Bankruptcy
Remote Entity for a period not to exceed two (2) Business Days. The Certificate
shall at all times be registered in the name of a single holder.
(g) The
Certificates shall bear legends stating that they have not been registered
under
the Securities Act and are subject to the restrictions on transfer described
herein. By purchasing a Certificate, each purchaser shall be deemed to have
agreed to these restrictions on transfer.
(h) In
order
to preserve the exemption for resales and transfers provided by Rule 144A,
the
Transferor shall provide to any Holder of a Non-Registered Certificate and
any
prospective purchaser designated by such Holder, upon request of such Holder
or
such prospective purchaser, such information required by Rule 144A as will
enable the resale of such Non-Registered Certificate to be made pursuant to
Rule
144A. The Owner Trustee shall cooperate with the Transferor in providing the
Transferor such information regarding the Non-Registered Certificates, the
Trust
Assets and other matters regarding the Trust as the Transferor shall reasonably
request to meet its obligations under the preceding sentence.
13
(i) Notwithstanding
any provision of this Agreement to the contrary, any transfer of Certificates
that causes the total number of beneficial owners of Certificates to exceed
ninety-nine (99) shall be null and void and the Certificate Register shall
be
amended to reflect such voided transfer.
SECTION
3.8. Disposition
In Whole But Not In Part.
A
Certificate may be transferred in whole but not in part. Any attempted transfer
of the Certificate that would divide the beneficial ownership in the Trust
shall
be void.
ARTICLE
IV.
Voting
Rights and Other Actions
SECTION
4.1. Prior
Notice to Certificateholder with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least thirty (30) days before the taking of such action, the Owner Trustee
shall have notified the Certificateholder [and the Note Insurer] in writing
of
the proposed action and the Certificateholder shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that the
Certificateholder has withheld consent or provided alternative direction:
(a) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Business Trust Statute or
unless such amendment would not materially and adversely affect the interests
of
the Certificateholder);
(b) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(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 Certificateholder; or
(d) except
pursuant to Section 13.1 of the Sale and Servicing Agreement, the amendment,
change or modification of the Sale and Servicing Agreement, except to cure
any
ambiguity or defect or to amend or supplement any provision in a manner that
would not materially adversely affect the interests of the
Certificateholder.
The
Owner
Trustee shall notify the Certificateholder in writing of any appointment of
a
successor Note Registrar or Trust Collateral Agent within five Business Days
after receipt of notice thereof.
14
SECTION
4.2. Action
by Certificateholder with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Controlling Party or, after the Notes and Reimbursement Obligations have been
paid and full and the expiration of the Note Policy in accordance with its
terms, the Certificateholder in accordance with the Basic Documents, to (a)
remove the Servicer under the Sale and Servicing Agreement pursuant to Section
9.1 thereof or (b) except as expressly provided in the Basic Documents, sell
the
Receivables after the termination of the Indenture. The Owner Trustee shall
take
the actions referred to in the preceding sentence only upon written instructions
signed by the Controlling Party or the Certificateholder, as applicable and
the
furnishing of indemnification satisfactory to the Owner Trustee by the
Certificateholder. To the fullest extent permitted by applicable law, the Owner
Trustee shall not have the power to, and shall not, commence any proceeding
or
other actions contemplated by Section 2.10 (b).
SECTION
4.3. Restrictions
on Certificateholder's Power.
(a) The
Certificateholder 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) The
Certificateholder shall not 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 or any Basic
Document, unless the Certificateholder is the Instructing Party pursuant to
Section 5.3 and unless the Certificateholder previously shall have given to
the
Owner Trustee a written notice of default and of the continuance thereof, as
provided in this Agreement, and also unless Certificateholder shall have made
written request upon the Owner Trustee to institute such action, suit or
proceeding in its own name as Owner Trustee under this Agreement 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 thirty (30) days after its receipt of such notice, request,
and offer of indemnity, shall have neglected or refused to institute any such
action, suit, or proceeding, and during such 30-day period no request or waiver
inconsistent with such written request has been given to the Owner Trustee
pursuant to and in compliance with this Section or Section 5.3. For the
protection and enforcement of the provisions of this Section, the
Certificateholder and the Owner Trustee shall be entitled to such relief as
can
be given either at law or in equity.
SECTION
4.4. [Rights
of Note Insurer.
Notwithstanding anything to the contrary in the Basic Documents, without
the
prior written consent of the Note Insurer (so long as no Note Insurer Default
shall have occurred and be continuing), the Owner Trustee shall not (i) remove
the Servicer, (ii) initiate any claim, suit or proceeding by the Trust or
compromise any claim, suit or proceeding brought by or against the Trust, other
than with respect to the enforcement of any Receivable or any rights of the
Trust thereunder, (iii) authorize the merger or consolidation of the Trust
with
or into any other business trust or other entity (other than in accordance
with
Section 3.10 of the Indenture) or (iv) amend the Certificate of Trust (except
as
may be required by the Business Trust Statute).]
15
ARTICLE
V.
Authority
and Duties of Owner Trustee
SECTION
5.1. General
Authority.
(a) The
Owner
Trustee is authorized and directed to execute and deliver the Basic Documents
to
which the Trust is named as a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is named as a party and any amendment thereto, in each case, in such
form
as the Transferor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof, and on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver the Class A Notes in the aggregate principal amount
of $__________. In addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required of the Trust pursuant
to the Basic Documents. The Owner Trustee is further authorized from time to
time to take such action as the Instructing Party recommends with respect to
the
Basic Documents so long as such activities are consistent with the terms of
the
Basic Documents.
(b) The
Owner
Trustee shall sign on behalf of the Trust any applicable tax returns of the
Trust, unless applicable law requires a Certificateholder to sign such
documents.
SECTION
5.2. General
Duties.
It
shall be the duty of the Owner Trustee:
(i) to
discharge (or cause to be discharged) all of its responsibilities pursuant
to
the terms of this Agreement and to administer the Trust in the interest of
the
Certificateholder, subject to the Basic Documents and in accordance with the
provisions of this Agreement; and
(ii) to
execute on behalf of the Trust any license, approval, authorization or
registration required by any governmental authority, bureau or agency, as
notified by the Servicer and presented to the Owner Trustee in final execution
form, with respect to which the failure to maintain any such license, approval,
authorization or registration would have an adverse effect on the validity
and
enforceability of the Indenture, the Notes or the Owner Trust Estate.
Notwithstanding
the foregoing, the Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Basic Documents to the extent
the
Servicer has agreed in the Sale and Servicing Agreement to perform any act
or to
discharge any duty of the Trust or the Owner Trustee hereunder or under any
Basic Document, and the Owner Trustee shall not be liable for the default or
failure of the Servicer to carry out its obligations under the Sale and
Servicing Agreement.
SECTION
5.3. Action
upon Instruction.
(a) [Subject
to Article IV and the terms of the Spread Account Agreement], [the Note Insurer
(so long as a Note Insurer Default shall not have occurred and be continuing)
or] the Certificateholder [(if a Note Insurer Default shall have occurred and
be
continuing)] (the "Instructing Party") shall have the exclusive right to direct
the actions of the Owner Trustee in the management of the Trust, so long as
such
instructions are not inconsistent with the express terms set forth herein or
in
any Basic Document. The Instructing Party shall not instruct the Owner Trustee
in a manner inconsistent with this Agreement or the Basic
Documents.
16
(b) The
Owner
Trustee shall not be required to take any action hereunder or under any Basic
Document if the Owner Trustee shall have reasonably determined, or shall have
been advised by counsel, that such action is likely to result in liability
on
the part of the Owner Trustee or is contrary to the terms hereof or of any
Basic
Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is unable to decide between alternative courses of action
permitted or required by the terms of this Agreement or any Basic Document,
the
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Instructing Party 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 Instructing Party
received, the Owner Trustee shall not be liable on account of such action to
any
Person. If the Owner Trustee shall not have received appropriate instruction
within ten 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 Certificateholder, and
shall
have no liability to any Person for such action or inaction.
(d) In
the
event that the Owner Trustee is unsure as to the application of any provision
of
this Agreement or any Basic Document or any such provision is ambiguous as
to
its application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by
the
Owner Trustee or is silent or is incomplete as to the course of action that
the
Owner Trustee is required to take with respect to a particular set of facts,
the
Owner Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Instructing Party requesting instruction and, to the
extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Owner Trustee shall not
be
liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within 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 Certificateholder, 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 obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee 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 prepare or file any Commission filing for the Trust or to record
this 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 Trust Estate that
result from actions by, or claims against, the Owner Trustee and that are not
related to the ownership or the administration of the Owner Trust
Estate.
17
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 Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) in accordance with the 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 (a) that is inconsistent with the
purposes of the Trust set forth in Section 2.3 or (b) that, to the actual
knowledge of the Owner Trustee, would result in the Trust's becoming taxable
as
a corporation for Federal income tax purposes. The Instructing Party shall
not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
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 terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner 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, bad faith or negligence, (ii) in
the
case of the inaccuracy of any representation or warranty contained in Section
6.3 expressly made by the Owner Trustee, (iii) for liabilities arising from
the
failure of the Owner Trustee to perform obligations expressly undertaken by
it
in the last sentence of Section 5.4 hereof, (iv) for any investments issued
by
the Owner Trustee or any branch or Affiliate thereof in its commercial capacity
or (v) for taxes, fees or other charges on, based on or measured by, any fees,
commissions or compensation received 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 in good faith by
a
Responsible Officer of the Owner Trustee;
(b) the
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Instructing Party, the
Servicer or the Certificateholder;
18
(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;
(e) the
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Transferor
or for the form, character, genuineness, sufficiency, value or validity of
any
of the Owner Trust Estate or for or in respect of the validity or sufficiency
of
the Basic Documents, other than the certificate of authentication on a
Certificate, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to the [Note Insurer,] Indenture Trustee, Trust
Collateral Agent, the Collateral Agent, any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
(f) the
Owner
Trustee shall not be liable for the default or misconduct of [the Note Insurer,]
the Indenture Trustee, the Trust Collateral Agent or the Servicer under any
of
the Basic Documents or otherwise and the Owner Trustee shall have no obligation
or liability to perform the obligations under this Agreement or the Basic
Documents that are required to be performed by the Indenture Trustee under
the
Indenture or the Trust Collateral Agent or the Servicer under the Sale and
Servicing Agreement; and
(g) the
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement
or
any Basic Document, at the request, order or direction of the Instructing Party
or the Certificateholder, unless such Instructing Party or Certificateholder
has
offered to the Owner Trustee security or indemnity reasonably 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, bad faith or willful misconduct in the performance
of
any such act.
SECTION
6.2. Furnishing
of Documents.
The
Owner Trustee shall furnish to the Certificateholder promptly upon receipt
of a
written request therefor, duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION
6.3. Representations
and Warranties.
The
Owner Trustee and [___] hereby represent and warrant to the Transferor, the
Certificateholder [and the Note Insurer (which shall have relied on such
representations and warranties in issuing the Note Policy)], that:
19
(a) It
is a
Delaware banking corporation, duly organized and validly existing in good
standing under the laws of the State of Delaware and it holds all grants,
authorizations, consents, orders and approvals from all governmental authorities
necessary under the laws of the State of Delaware to carry on its true business
as now conducted. It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Agreement, and this Agreement will be executed and delivered by
one
of its officers who is duly authorized to execute and deliver this Agreement
on
its behalf.
(c) Neither
the execution nor the delivery by it of this Agreement, nor the consummation
by
it of the transactions contemplated hereby nor compliance by it with any of
the
terms or provisions hereof will contravene any Delaware state or federal law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound, or result in the creation or imposition of any lien, charge or
encumbrance on the Trust Assets resulting from actions by or claims against
the
Owner Trustee in its individual capacity except as expressly contemplated by
this Agreement or Indenture.
(d) No
consent, approval, authorization or order of, or filing with, any court or
regulatory, supervisory or government agency or body is required by the Owner
Trustee under Delaware law in connection with the execution, delivery and
performance by the Owner Trustee of this Agreement or the consummation by the
Owner Trustee of the transactions contemplated hereby (except for the filing
of
the Certificate of Trust with the Secretary of State).
(e) The
Owner
Trustee has no present intent to cause a voluntary bankruptcy of the
Trust.
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, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
20
(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 according to such opinion not contrary to this Agreement or
any
Basic Document.
SECTION
6.5. Not
Acting in Individual Capacity.
Except
as provided in Article II and this Article VI, in accepting the trusts hereby
created [___] acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason
of
the transactions contemplated by this Agreement or any Basic Document shall
look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION
6.6. Owner
Trustee Not Liable for Certificates or Receivables.
The
recitals contained herein and in the Certificates (other than the signature
and
countersignature of the Owner Trustee on the Certificates) shall be taken as
the
statements of the Transferor and the Owner Trustee assumes no responsibility
for
the correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, of any Basic Document or of the
Certificates (other than the signature and countersignature of the Owner Trustee
on the Certificates) or the Notes, or of any Receivable or related documents.
The Owner Trustee shall at no time have any responsibility or liability for
or
with respect to the legality, validity and enforceability of any Receivable,
or
the perfection and priority of any security interest created by any Receivable
in any Financed Vehicle or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholder under
this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Vehicle;
the
existence and enforceability of any insurance thereon; the existence and
contents of any Receivable on any computer or other record thereof; the validity
of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; the performance or enforcement
of any Receivable; the compliance by the Transferor, the Servicer or any other
Person with any warranty or representation made under any Basic Document or
in
any related document or the accuracy of any such warranty or representation
or
any action of the Indenture Trustee or the Servicer or any subservicer taken
in
the name of the Owner Trustee.
SECTION
6.7. Owner
Trustee May Own Notes.
The
Owner Trustee in its individual capacity may become the owner or pledgee of
the
Notes and may deal with the Certificateholder, the Transferor, the Indenture
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
SECTION
6.8. Payments
from Owner Trust Estate.
All
payments to be made by the Owner Trustee under this Agreement or any of the
Basic Documents to which the Trust or the Owner Trustee is a party shall be
made
only from the income and proceeds of the Owner Trust Estate and only to the
extent that the Owner Trust shall have received income or proceeds from the
Owner Trust Estate to make such payments in accordance with the terms hereof.
[Name of Owner Trustee], or any successor thereto, in its individual capacity,
shall not be liable for any amounts payable under this Agreement or any of
the
Basic Documents to which the Trust or the Owner Trustee is a party.
21
SECTION
6.9. Doing
Business in Other Jurisdictions.
Notwithstanding anything contained to the contrary, neither [Name of Owner
Trustee] or any successor thereto, nor the Owner Trustee shall be required
to
take any action in any jurisdiction other than in the State of Delaware if
the
taking of such action will, even after the appointment of a co-trustee or
separate trustee in accordance with Section 9.5 hereof, (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state
or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under
the
laws of the State of Delaware becoming payable by [Name of Owner Trustee] (or
any successor thereto); or (iii) subject [Name of Owner Trustee] (or any
successor thereto) to personal jurisdiction in any jurisdiction other than
the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by [Name of Owner Trustee] (or any successor
thereto) or the Owner Trustee, as the case may be, contemplated
hereby.
ARTICLE
VII.
Compensation
of Owner Trustee
SECTION
7.1. Owner
Trustee's Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder such
fees
as have been separately agreed upon before the date hereof between LBAC and
the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
LBAC
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder and under the
Basic Documents.
SECTION
7.2. Indemnification.
Each of
the Owner Trustee and [Name of Owner Trustee] and its officers, directors,
successors, assigns, agents and servants shall be indemnified by the Servicer
in
and to the extent set forth in Section 8.2(a)(v) of the Sale and Servicing
Agreement.
SECTION
7.3. Payments
to the Owner Trustee.
Any
amounts paid to the Owner Trustee pursuant to this Article VII shall be deemed
not to be a part of the Owner Trust Estate immediately after such
payment.
SECTION
7.4. Non-recourse
Obligations.
Notwithstanding anything in this Agreement or any Basic Document, the Owner
Trustee agrees in its individual capacity and in its capacity as Owner Trustee
for the Trust that all obligations of the Trust to the Owner Trustee
individually or as Owner Trustee for the Trust shall be recourse to the Owner
Trust Estate only and specifically shall not be recourse to the assets of the
Certificateholder.
22
ARTICLE
VIII.
SECTION
8.1. Termination
of Trust Agreement.
(a) This
Agreement shall terminate and the Trust shall wind up and dissolve and be of
no
further force or effect upon the latest of (i) the maturity or other liquidation
of the last Receivable and the subsequent distribution of amounts in respect
of
such Receivables as provided in the Basic Documents, (ii) the payment to the
Certificateholder of all amounts required to be paid to it pursuant to this
Agreement [and the payment to the Note Insurer of all amounts payable or
reimbursable to it pursuant to the Sale and Servicing Agreement, (iii) the
expiration of the Note Policy in accordance with its terms; or (iv) payment
to
the Note Insurer in full of all Reimbursement Obligations]; provided,
however,
that
the rights to indemnification under Section 7.2 and the rights under Section
7.1
shall survive the termination of the Trust. The Servicer shall promptly notify
the Owner Trustee [and the Note Insurer] of any prospective termination pursuant
to this Section. The bankruptcy, liquidation, dissolution, death or incapacity
of the Certificateholder, shall not (x) operate to terminate this Agreement
or
the Trust, nor (y) entitle the Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of
the
parties hereto.
(b) Neither
the Transferor nor the 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
Certificateholder shall surrender the Certificate to the Trust Collateral Agent
for payment of the final distribution and cancellation, shall be given by the
Owner Trustee by letter to the Certificateholder mailed within five Business
Days of receipt of notice of such termination from the Servicer given pursuant
to Section 10.1(c) of the Sale and Servicing Agreement, stating (i) the Payment
Date upon or with respect to which final payment of the Certificates shall
be
made upon presentation and surrender of the Certificates at the office of the
Trust Collateral Agent therein designated, (ii) the amount of any such final
payment, (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 Trust Collateral Agent therein specified
and
(iv) interest will cease to accrue on the Certificates. The Owner Trustee shall
give such notice to the Trust Collateral Agent at the time such notice is given
to the Certificateholder. Upon presentation and surrender of the Certificates,
the Trust Collateral Agent shall cause to be distributed to the
Certificateholder amounts distributable on such Payment Date pursuant to Section
5.6 of the Sale and Servicing Agreement.
In
the
event that the Certificateholder shall not surrender the Certificates for
cancellation within six months after the date specified in the above mentioned
written notice, the Trust Collateral Agent shall give a second written notice
to
the Certificateholder to surrender the 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 Trust Collateral Agent may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the Certificateholder concerning surrender
of the 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, subject to
applicable escheat laws, by the Trust Collateral Agent to the
Certificateholder.
23
(d) Upon
the
winding up of the Trust and its dissolution, the Owner Trustee shall cause
the
Certificate of Trust to be canceled by filing a certificate of cancellation
with
the Secretary of State in accordance with the provisions of Section 3810 of
the
Business Trust Statute.
ARTICLE
IX.
SECTION
9.1. Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation or national banking
association (i) satisfying the provisions of Section 3807(a) of the Business
Trust Statute; (ii) authorized to exercise corporate trust powers; [and] (iii)
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authorities[; and (iv) acceptable
to the Note Insurer in its sole discretion, so long as a Note Insurer Default
shall not have occurred and be continuing.] If such entity shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such entity shall be deemed to
be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to
be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
9.2.
SECTION
9.2. Resignation
or Removal of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving sixty days' written notice thereof to the Transferor, the
Certificateholder[, the Note Insurer] and the Servicer. Upon receiving such
notice of resignation, the Certificateholder shall[, with the prior written
consent of the Note Insurer,] promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee[, provided that the Certificateholder shall have received written
confirmation from each of the Rating Agencies that the proposed appointment
will
not result in an increased capital charge to the Note Insurer by either of
the
Rating Agencies.] If no successor Owner Trustee shall have been so appointed
and
have accepted appointment within thirty (30) days after the giving of such
notice of resignation, the resigning Owner Trustee [or the Note Insurer] 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 9.1 and shall fail to resign after written request
therefor by the Certificateholder, or if at any time the Owner Trustee shall
be
legally unable to act, or shall be adjudged 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
Certificateholder [with the consent of the Note Insurer (so long as a Note
Insurer Default shall not have occurred and be continuing)] may remove the
Owner
Trustee. If the Certificateholder shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Certificateholder shall[,
with the prior written consent of the Note Insurer,] promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed[, one
copy to the Note Insurer] and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
24
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Certificateholder shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating
Agencies.
SECTION
9.3. Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.2 shall execute,
acknowledge and deliver to the Transferor, the Certificateholder, the Servicer[,
the Note Insurer] and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, 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 under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver
to
the successor Owner Trustee all documents and statements and monies held by
it
under this Agreement; and the Transferor, the Certificateholder and the
predecessor Owner Trustee shall execute and deliver such instruments and do
such
other things as may reasonably be required for fully and certainly vesting
and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Owner Trustee shall be
eligible pursuant to Section 9.1.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
(i) the Servicer shall mail notice of the successor of such Owner Trustee to
the
Certificateholder, the Indenture Trustee, the Noteholders and the Rating
Agencies and (ii) the successor Owner Trustee shall file an amendment to the
Certificate of Trust with the secretary of State identifying its name and
principal place of business in the State of Delaware. If the Servicer shall
fail
to mail such notice within ten (10) days after acceptance of appointment by
the
successor Owner Trustee, the successor Owner Trustee shall cause such notice
to
be mailed at the expense of the Servicer.
25
SECTION
9.4. Merger
or Consolidation of Owner Trustee.
Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
9.1,
without the execution or filing of any instrument or any further act on the
part
of any of the parties hereto, anything herein to the contrary notwithstanding;
provided further that the Owner Trustee (i) shall mail notice of such merger
or
consolidation to the Rating Agencies and (ii) shall file an amendment to the
Certificate of Trust as required under Section 9.3, above.
SECTION
9.5. Appointment
of Co-Indenture Trustee or Separate Indenture 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 Owner Trust Estate or any Financed Vehicle may at the time be located,
the Servicer 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 [and the Note Insurer] to act as co-trustee, jointly with
the
Owner Trustee, or separate trustee or separate trustees, of all or any part
of
the Owner Trust Estate, and to vest in such Person, in such capacity, such
title
to the Trust, or any part thereof, and, subject to the other provisions of
this
Section, such powers, duties, obligations, rights and trusts as the Servicer
and
the Owner Trustee may consider necessary or desirable. If the Servicer shall
not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee [subject, unless a Note Insurer Default
shall have occurred and be continuing, to the approval of the Note Insurer
(which approval shall not be unreasonably withheld)] shall have the power to
make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor trustee
pursuant to Section 9.1 and no notice of the appointment of any co-trustee
or
separate trustee shall be required pursuant to Section 9.3.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no
trustee under this Agreement shall be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
26
(iii) the
Servicer 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 Servicer [and the Note Insurer.]
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor trustee.
ARTICLE
X.
SECTION
10.1. Supplements
and Amendments.
(a) This
Agreement may be amended by the Transferor and the Owner Trustee, [with the
prior written consent of the Note Insurer (so long as a Note Insurer Default
shall not have occurred and be continuing) and] with prior written notice to
the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholder, (i) to cure any ambiguity or defect or (ii) to correct,
supplement or modify any provisions in this Agreement; provided,
however,
that
such action shall not, as evidenced by an Opinion of Counsel which may be based
upon a certificate of the Servicer, delivered to the Owner Trustee, the Rating
Agencies [and the Note Insurer,] adversely affect in any material respect the
interests of any Noteholder or Certificateholder.
(b) This
Agreement may also be amended from time to time[, with the prior written consent
of the Note Insurer (so long as a Note Insurer Default shall not have occurred
and be continuing)] by the Transferor and the Owner Trustee, with prior written
notice to the Rating Agencies, to the extent such amendment materially and
adversely affects the interests of the Noteholders, with the consent of the
Noteholders evidencing not less than 50% of the outstanding Note Balance and,
the consent of the Certificateholder (which consent of any Certificateholder
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Certificateholder and any
future Certificateholder) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Noteholders or the
Certificateholder; provided,
however,
that[,
subject to the express rights of the Note Insurer under the Basic Documents,]
no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholder or (b) reduce the aforesaid percentage
of
the Note Balance or the Certificateholders required to consent to any such
amendment, without the consent of the Noteholders of all the outstanding Notes
and the Certificateholder.
27
Promptly
after the execution of any such amendment or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment or consent
to
the Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It
shall
not be necessary for the consent of Certificateholder, the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of
any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Certificateholder provided for in this Agreement or in
any
other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholder shall be subject to such reasonable requirements
as
the Owner Trustee may prescribe. Promptly after the execution of any amendment
to the Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
Prior
to
the execution of any amendment to this Agreement or the Certificate of Trust,
the Owner Trustee [and the Note Insurer] shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to
the execution and delivery of such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
SECTION
10.2. No
Legal Title to Owner Trust Estate in Certificateholder.
The
Certificateholder shall not have legal title to any part of the Owner Trust
Estate. The Certificateholder shall be entitled to receive distributions in
accordance with the Sale and Servicing Agreement. No transfer, by operation
of
law or otherwise, of any right, title or interest of the Certificateholder
to
and in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION
10.3. Limitations
on Rights of Others.
The
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Transferor, the Certificateholder, the Servicer and, to the extent expressly
provided herein, [the Note Insurer,] the Indenture Trustee and the Noteholders,
and nothing in this Agreement, whether express or implied, shall be construed
to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
28
SECTION
10.4. Notices.
(a) Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt personally delivered,
sent by facsimile transmission (with appropriate confirmation) delivered by
overnight courier or mailed first class mail or certified mail, in each case
return receipt requested, and shall be deemed to have been duly given upon
receipt:
(i)
if
to the
Owner Trustee, addressed to:
___________________
___________________
___________________
__________,
________ ________
Attention:
___________________
(Telecopy
Number: ___________)
(ii) if
to the
Transferor, addressed to:
Xxx
Xxxx
Xxxxxx Xxxxx
Xxxxxxx,
Xxx Xxxxxx 00000
Attention:
General Counsel
(Telecopy
Number: (000) 000-0000)
(iii) [if
to
the Note Insurer, addressed to
___________________
___________________
Attention:
___________________
Re:
Long
Beach Acceptance Auto Receivables Trust 20__-__
Telex
No.: ___________________
Confirmation:
________________
Telecopy
Nos.: -_______________
(iv) in
the
case of the Rating Agencies, addressed to:
Xxxxx'x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ABS Monitoring Department
and
Standard
& Poor's Ratings Service
00
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Asset Backed Surveillance Department
29
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of the Certificateholder
in
the register maintained by the Owner Trustee. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such
notice.
SECTION
10.5. 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
SECTION
10.6. Separate
Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
SECTION
10.7. Assignments.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
SECTION
10.8. No
Recourse.
The
Certificateholder by accepting a Certificate acknowledges that the Certificate
represents a beneficial interest in the Trust only and does not represent
interests in or obligations of the Transferor, the Servicer, the Owner Trustee,
the Indenture Trustee, [the Note Insurer 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 Certificate or the
Basic Documents.
SECTION
10.9. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION
10.10. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
SECTION
10.11. Servicer.
The
Servicer is authorized to prepare, or cause to be prepared, execute and deliver
on behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Trust or Owner Trustee
to prepare, file or deliver pursuant to the Basic Documents. Upon written
request, the Owner Trustee shall execute and deliver to the Servicer a limited
power of attorney appointing the Servicer the Trust's agent and attorney-in-fact
to prepare, or cause to be prepared, execute and deliver all such documents,
reports, filings, instruments, certificates and opinions.
SECTION
10.12. [Limitation
on Liability.
With respect to the Note Insurer, the Owner Trustee undertakes to perform or
observe only such of the covenants and obligations of the Owner Trustee as
are
expressly set forth in this Agreement, and no implied covenants or obligations
with respect to the Note Insurer shall be read into this Agreement or the other
Basic Documents against the Owner Trustee. The Owner Trustee shall not be deemed
to owe any fiduciary duty to the Note Insurer, and shall not be liable to any
such person for the failure of the Trust to perform its obligations to such
persons other than as a result of the gross negligence or willful misconduct
of
the Owner Trustee in the performance of its express obligations under this
Agreement.]
30
SECTION
10.13. No
Petition.
The
Owner Trustee (not in its individual capacity but solely as Owner Trustee),
by
entering into this Agreement, the Certificateholder, by accepting the
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 Transferor, or join in any institution against the
Transferor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or
state bankruptcy or similar law in connection with any obligations relating
to
the Certificate, the Notes, this Agreement or any other Basic
Documents.
SECTION
10.14. Bankruptcy
Matters.
To the
fullest extent permitted by law, the Certificateholder or any party to this
Agreement shall not take any action to cause the Trust to dissolve in whole
or
in part or file a voluntary petition or otherwise initiate proceedings to have
the Trust adjudicated bankrupt or insolvent, or consent to the institution
of
bankruptcy or insolvency proceedings against the Trust as debtor under any
applicable federal or state law relating to bankruptcy, insolvency or other
relief for debts with respect to the Trust; or seek or consent to the
appointment of any trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of the Trust or of all or
any
substantial part of the properties and assets of the Trust, or cause the Trust
to make any general assignment for the benefit or creditors of the Trust or
take
any action in furtherance of any of the above actions unless the
Certificateholder and the Indenture Trustee shall have provided their written
consent.
SECTION
10.15. [Effect
of Policy Expiration Date.
Notwithstanding anything to the contrary set forth herein, all references to
any
right of the Note Insurer to direct, appoint, consent to, accept, approve of,
take or omit to take any action under this Agreement or any other Basic Document
shall be inapplicable at all times after the Policy Expiration Date, and if
such
reference provides for another party or parties to take or omit to take any
such
action following a Note Insurer Default, such party or parties shall also be
entitled to take or omit to take such action following the Policy Expiration
Date and (ii) if such reference does not provide for another party or parties
to
take or omit to take any such action following a Note Insurer Default, then
the
Indenture Trustee acting at the direction of the Majorityholders shall have
the
right to take or omit to take any such action following the Policy Expiration
Date. In addition, any other provision of this Agreement or any other Basic
Document which is operative based in whole or in part on whether a Note Insurer
Default has or has not occurred shall, at all times on or after the Policy
Expiration Date, be deemed to refer to whether or not the Policy Expiration
Date
has occurred.]
31
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed by their respective officers hereunto duly authorized as of the day
and
year first above written.
________________________,
as Owner Trustee
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
32
EXHIBIT
A
[FORM
OF
CERTIFICATE OF TRUST]
CERTIFICATE
OF TRUST
OF
LONG
BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-__
This
Certificate of Trust of LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-__
(the "Trust") is being duly executed and filed by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. C.
§3801
et
seq.)
(the
"Act").
1. Name.
The
name of the business trust formed hereby is LONG BEACH ACCEPTANCE AUTO
RECEIVABLES TRUST 20__-__.
2. Owner
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is [Name of owner trustee], _______________, ___________________, __________,
__________ ________, Attention: ___________________.
3. Effective
Date.
This
Certificate of Trust will be effective upon filing.
[NAME
OF OWNER
TRUSTEE], as Owner Trustee
By:___________________________________
Name:
Title:
EXHIBIT
B
[FORM
OF
CERTIFICATE]
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE APPLICABLE SECURITIES LAWS OF ANY STATE. ACCORDINGLY,
ANY TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH
IN
SECTION 3.7 OF THE TRUST AGREEMENT. BY ITS ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED TO REPRESENT TO THE TRANSFEROR AND THE
OWNER TRUSTEE (I) THAT IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
PROMULGATED UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")
AND THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR
THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO
ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK ACTING IN ITS
FIDUCIARY CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE
IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT
AND IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT
OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QUALIFIED INSTITUTIONAL BUYERS).
NO
SALE,
PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS
EITHER (I) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE TRANSFEROR, (II)
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN
THE
TRUST AGREEMENT, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY), (III) SO LONG
AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHO
THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO
ARE
QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE
OR
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (IV) SUCH SALE, PLEDGE
OR
OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN WHICH CASE (A) THE OWNER TRUSTEE SHALL
REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE TRANSFEROR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND THE TRANSFEROR, AND (B) THE OWNER TRUSTEE MAY REQUIRE
A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE TRUST,
THE
TRANSFEROR OR THE OWNER TRUSTEE) SATISFACTORY TO THE TRANSFEROR AND THE OWNER
TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT.
NO
SALE, PLEDGE OR OTHER TRANSFER MAY BE MADE TO ANY ONE PERSON FOR CERTIFICATES
WITH A FACE AMOUNT OF LESS THAN $100,000 AND, IN THE CASE OF ANY PERSON ACTING
ON BEHALF OF ONE OR MORE THIRD PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION
3(A)(2) OF THE SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY), FOR
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN $100,000 FOR EACH SUCH THIRD
PARTY.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE PERMITTED TO BE MADE TO ANY PERSON UNLESS
THE OWNER TRUSTEE HAS RECEIVED A CERTIFICATE FROM SUCH TRANSFEREE TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA OR (B) A PLAN
(AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE")) THAT IS SUBJECT TO SECTION 4975 OF THE CODE (EACH, A
"BENEFIT PLAN"), AND IS NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF
A
BENEFIT PLAN. EACH TRANSFEREE OF A BENEFICIAL OWNERSHIP INTEREST IN THIS
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A BENEFIT PLAN AND
IS
NOT ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A BENEFIT PLAN.
NO
TRANSFER OR SALE OF THIS CERTIFICATE SHALL BE PERMITTED TO BE MADE IF THE
TRANSFER OR SALE INCREASES THE NUMBER OF CERTIFICATEHOLDERS TO MORE THAN
NINETY-NINE (99).
THE
HOLDER OF THIS CERTIFICATE REPRESENTS, BY VIRTUE OF ITS ACCEPTANCE HEREOF,
(I)
THAT IT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN BEHALF AND IS NOT ACTING
AS
AGENT OR CUSTODIAN FOR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH SUCH
ACQUISITION, (II) IF THE HOLDER IS A PARTNERSHIP, GRANTOR TRUST OR S CORPORATION
FOR FEDERAL INCOME TAX PURPOSES (A "FLOW-THROUGH ENTITY"), ANY CERTIFICATES
OR
CLASS B NOTES OWNED BY SUCH FLOW-THROUGH ENTITY WILL REPRESENT LESS THAN 50%
OF
THE VALUE OF ALL THE ASSETS OWNED BY SUCH FLOW-THROUGH ENTITY AND NO SPECIAL
ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION OR CREDIT FROM SUCH CERTIFICATES
WILL BE MADE AMONG THE BENEFICIAL OWNERS OF SUCH FLOW-THROUGH ENTITY, AND (III)
THE HOLDER IS A UNITED STATES PERSON WITHIN THE MEANING OF THE
CODE.
TRANSFER
OF THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION
3.7
OF THE AGREEMENT.
B-2
LONG
BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-__
UNDER
TRUST AGREEMENT
DATED
AS
OF ___________, 20__-__
Certificate
Number:
[NAME
OF
OWNER TRUSTEE],
a
Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Owner Trustee") under a Trust Agreement, dated as of
_____________, 20__-__, between Long Beach Acceptance Receivables Corp., a
Delaware corporation (the "Transferor") and the Owner Trustee (the "Trust
Agreement"), hereby certifies that ___________________________________________
is the Holder of this Certificate representing the entire beneficial interest
in
the Long Beach Acceptance Auto Receivables Trust (the "Trust") created by the
Trust Agreement. This Certificate is issued pursuant to and is entitled to
the
benefits of the Trust Agreement, and the Certificateholder by acceptance hereof
agrees to be bound by the terms of the Trust Agreement. Reference is hereby
made
to the Trust Agreement for a statement of the rights and obligations of the
Certificateholder hereof. The Owner Trustee may treat the person shown on the
register maintained by the Owner Trustee pursuant to the Trust Agreement as
the
absolute Certificateholder hereof for all purposes.
Capitalized
terms used herein without definition have the meanings ascribed to them in
or by
reference to the Trust Agreement.
The
Certificateholder hereof, by its acceptance of this Certificate, warrants and
represents to, and agrees with, the Owner Trustee that it shall not transfer
this Certificate except in accordance with the Trust Agreement.
[The
Certificateholder, by acceptance of its Certificate, specifically acknowledges
that it has no right to or interest in any monies at any time held pursuant
to
the Spread Account Agreement prior to the release of such monies pursuant to
Section 5.6(d) of the Sale and Servicing Agreement, such monies being held
in
trust for the benefit of the Class A Noteholders [and the Note Insurer].
Notwithstanding the foregoing, in the event that it is ever determined that
provisions of the Sale and Servicing Agreement and the Spread Account Agreement
shall be considered to constitute a security agreement and the Transferor and
the Certificateholder hereby grant to the Collateral Agent for the benefit
of
the Class A Noteholders and the Note Insurer a first priority perfected security
interest in such amounts, to be applied as set forth in Section 3.03 of the
Spread Account Agreement. In addition the Certificateholder, by acceptance
of
its Certificate, hereby appoints the Transferor as its agent to pledge a first
priority perfected security interest in the Spread Account, and any amounts
held
therein from time to time to the Collateral Agent pursuant to the Spread Account
Agreement and agrees to execute and deliver such instruments of conveyance,
assignment, grant and confirmation, as well as financing statements, in each
case as the Note Insurer shall consider reasonably necessary in order to perfect
the Collateral Agent's Security Interest in the Collateral (as such terms are
defined in the Spread Account Agreement).]
B-3
This
Certificate and the Trust Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to conflict-of-law principles.
B-4
LONG
BEACH ACCEPTANCE
AUTO RECEIVABLES TRUST 20__-__
By:
[Name
of
Owner Trustee],
not
in its individual capacity
but
solely as Owner
Trustee
By:_____________________________________
Name:
Title:
Dated:
____________, 20__-__
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
[NAME
OF OWNER
TRUSTEE],
not
in its individual
capacity
; but
solely as Owner
Trustee
By: [Name
of
Owner Trustee],
Authenticating
Agent
By:_____________________________________
Name:
Title:
Dated:
_____________, 20__-__
B-5
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY
OR
OTHER
IDENTIFYING NUMBER
OF
ASSIGNEE
_______________________________________________________________________________
(Please
print or typewrite name and address, including postal zip code, of
assignee)
_______________________________________________________________________________
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing_____________________________________
Attorney to transfer said Certificate
on
the
books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
_________________________________________________________*
_________________________________________________________*
* NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever.
B-6
EXHIBIT
C
[FORM
OF
"QUALIFIED INSTITUTIONAL BUYER"
TRANSFEREE'S
CERTIFICATE]
[Date]
[Name
of
Owner Trustee]
___________________
___________________
_________,
__ _______
Attn:
___________________
Xxx
Xxxx
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attn:
President
Re: Long
Beach Acceptance Auto Receivables Trust 20__-__
Ladies
and Gentlemen:
In
connection with the proposed purchase by the buyer listed below (the "Buyer")
of
the Certificates (as defined below) issued pursuant to the Trust Agreement,
dated as of ______________, 20__-__ (the "Trust Agreement"), between Long Beach
Acceptance Receivables Corp., as Transferor (the "Transferor") and [Name of
owner trustee], as trustee (the "Owner Trustee"), relating to Long Beach
Acceptance Auto Receivables Trust 20__-__ (the "Certificates"), the Buyer
advises you as follows: (i) the Buyer is a "qualified institutional buyer"
as
that term is defined in Rule 144A under the Securities Act of 1933, as amended
(the "1933 Act") and is acquiring beneficial ownership of the Certificates
for
its own account or for the account of not more than _ persons, each of which
is
a "qualified institutional buyer"; and (ii) the Buyer satisfies the requirements
of paragraph (a)(2)(ii) of Rule 3a-7 under the Investment Company Act of 1940,
as amended (the "1940 Act"). In addition to the foregoing, you may rely on
the
information provided in Annex 1 or 2, as applicable, attached hereto and
incorporated herein.
The
Buyer
understands that the Certificates have not been registered under the 1933 Act
or
the securities laws of any state. The Buyer acknowledges that it has
independently conducted such investigation and evaluation of the merits and
the
risks involved in an investment in the Certificates and has received such
information (whether from the Transferor, the Owner Trustee, the transferor
from
which it proposes to purchase Certificates, or from any other source) as the
Buyer has deemed necessary and advisable in order to make its investment
decision. The Buyer has had any questions arising from such investigation and
evaluation answered by the Transferor to the satisfaction of the Buyer. The
Buyer is a sophisticated institutional investor, having such knowledge and
experience in financial and business matters generally, and with respect to
asset-backed securities and investments in "non-prime" automobile loans
specifically, that it is capable of independently evaluating the merits and
risks of investment in the Certificates. In the normal course of its business,
the Buyer invests in or purchases securities similar to the Certificates. The
Buyer is aware that it may be required to bear the economic risk of an
investment in the Certificates for an indefinite period of time, and it is
able
to bear such risk for an indefinite period.
Very
truly
yours,
[BUYER]
By:___________________________________________
Name:
Title:
Taxpayer
ID:
___________________________________
Name
in which
Certificate is to be Registered:
___________________________________________
Address
for
Notices:
___________________________________________
Payment
Instructions:
___________________________________________
C-2
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows to the parties listed in the "Qualified
Institutional Buyer" Transferee's Certificate to which this certification
relates with respect to the Rule 144A Securities described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act of 1933
("Rule 144A") because (i) the Buyer owned and/or invested on a discretionary
basis $_________________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
o Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
o Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
o Savings
and
Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
o Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
______________________________
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
C-3
o Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
o State
or Local
Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
o ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974.
o Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisers Act
of
1940.
o Small
Business
Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
o Business
Development
Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
o Trust
Fund.
The
Buyer is a trust fund whose trustee is a bank or trust company and whose
participants are exclusively State or Local Plans or ERISA Plans as defined
above, and no participant of the Buyer is an individual retirement account
or an
H.R. 10 (Xxxxx) plan.
3. The
term
"securities"
as used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to
a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
C-4
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer's purchase of
Rule
144A Securities will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a Bank or Savings and Loan
as provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
; _____________________________________________
Print
Name of
Buyer
By:___________________________________________
Name:
Title:
Date:
C-5
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers that are Registered Investment Companies]
The
undersigned hereby certifies as follows to the parties listed in the "Qualified
Institutional Buyer" Transferee's Certificate to which this certification
relates with respect to the Rule 144A Securities described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a "qualified institutional
buyer" as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer's Family of Investment Companies, owned
at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used, except (i) where
the
Buyer or the Buyer's Family of Investment Companies reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market.
o
The
Buyer
owned $__________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
o
The
Buyer is part of a Family of Investment
Companies which owned in the aggregate $__________ in securities (other than
the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The
term
"Family
of Investment Companies"
as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
"securities"
as used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer's Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps.
C-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Qualified Institutional Buyer Transferee's Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own
account.
6. Until
the
date of purchase of the Rule 144A Securities, the undersigned will notify each
of the parties to which this certification is made of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of Rule 144A Securities will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
_____________________________________________
Print
Name of Buyer
or Adviser
By:___________________________________________
Name:
Title:
IF
AN
ADVISER:

60; _____________________________________________
Print
Name of Buyer
Date:
C-7
EXHIBIT
D
[FORM
OF
"ACCREDITED INVESTOR" TRANSFEREE'S CERTIFICATE]
[Date]
[Name
of
Owner Trustee]
___________________
___________________
_________,
__________ _________
Attn:
_______________________
Xxx
Xxxx
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attn:
President
Re:
Long
Beach Acceptance Auto Receivables Trust 20__-__
Dear
Sirs:
In
connection with the proposed purchase by the buyer listed below (the "Buyer")
of
Certificates (as defined below) issued pursuant to the Trust Agreement, dated
as
of ______________, 20__-__ (the "Trust Agreement"), between Long Beach
Acceptance Receivables Corp., as Transferor (the "Transferor"), and [Name of
owner trustee], as trustee (the "Owner Trustee"), relating to Long Beach
Acceptance Auto Receivables Trust 20__-__ (the "Certificates"), the Buyer
confirms that:
1. The
Buyer
understands that the Certificates have not been registered under the Securities
Act of 1933, as amended (the "1933 Act"), and may not be sold except as
permitted in the following sentence. The Buyer agrees, on its own behalf and
on
behalf of any accounts for which it is acting as hereinafter stated, that such
Certificates may be resold, pledged or transferred only: (i) so long as such
Certificates are eligible for resale pursuant to Rule 144A under the 1933 Act
("Rule 144A"), to a person who the Buyer reasonably believes is a "qualified
institutional buyer" as defined in Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB, to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, (ii) pursuant
to an exemption from registration under the 1933 Act provided by Rule 144 (if
applicable) under the 1933 Act or (iii) to an institution that is an "Accredited
Investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the 1933 Act
(an
"Accredited Investor") that is acquiring the Certificates for investment
purposes and not for distribution, in each case in accordance with any
applicable securities laws of any state of the United States, and the Buyer
will
notify any purchaser of the Certificates from it of the above resale
restrictions. The Buyer further understands that in connection with any transfer
of the Certificates to an Accredited Investor by it that the Transferor or
Owner
Trustee may request, and if so requested the Buyer will furnish, such
certificates and other information as they may reasonably require to confirm
any
such transfer with the foregoing restrictions.
2. The
Buyer
is an institutional investor which is an Accredited Investor or, if the
Certificates are to be purchased for one or more institutional accounts
("investor accounts") for which it is acting as fiduciary or agent (except
if it
is a bank as defined in Section 3(a)(2) of the 1933 Act, or a savings and loan
association or other institution as described in Section 3(a)(5)(A) of the
1933
Act, whether acting in its individual or in a fiduciary capacity), each such
investor account is an institutional investor and an Accredited Investor on
a
like basis. In the normal course of its business, the Buyer invests in or
purchases securities similar to the Certificates.
3. The
Buyer
satisfies the requirements of paragraph (a)(2)(i) of Rule 3a-7 of the Investment
Company Act of 1940, as amended.
4. The
Buyer
acknowledges that it has independently conducted such investigation and
evaluation of the merits and the risks involved in an investment in the
Certificates and has received such information (whether from the Transferor,
the
Servicer, the transferor from which it proposes to purchase Certificates, or
from any other source) as the Buyer has deemed necessary and advisable in order
to make its investment decision. The Buyer has had any questions arising from
such investigation and evaluation answered by the Transferor to the satisfaction
of the Buyer. The Buyer is a sophisticated institutional investor, having such
knowledge and experience in financial and business matters generally, and with
respect to asset-backed securities and investments in "non-prime" automobile
loans specifically, that it is capable of independently evaluating the merits
and risks of investment in the Certificates. In the normal course of its
business, the Buyer invests in or purchases securities similar to the
Certificates. The Buyer is aware that it (or any investor account) may be
required to bear the economic risk of an investment in the Certificates for
an
indefinite period of time, and it (or such account) is able to bear such risk
for an indefinite period.
Very
truly yours,
[BUYER]
By:___________________________________________
Name:
Title:
D-2
EXHIBIT
E
[FORM
OF
TRANSFEROR'S CERTIFICATE]
[Date]
[Name
of
Owner Trustee]
___________________
___________________
__________,
________ _________
Attn:
________________________
Re:
Long
Beach Acceptance Auto Receivables Trust 20__-__
Ladies
and Gentlemen:
In
connection with the disposition by the transferor listed below (the
"Transferor") of Certificates (as defined below) issued pursuant to the Trust
Agreement, dated as of _______________, 20__-__ (the "Trust Agreement") between
Long Beach Acceptance Receivables Corp., as Transferor (the "Transferor"),
and
[Name of owner trustee], as trustee (the "Owner Trustee"), relating to Long
Beach Acceptance Auto Receivables Trust 20__-__ (the "Certificates"), the
Transferor certifies that:
(a) the
Transferor understands that the Certificates have not been registered under
the
Securities Act of 1933, as amended (the "1933 Act"), and are being disposed
of
by the Transferor in a transaction that is exempt from the registration
requirements of the 1933 Act; and
(b) the
Transferor has not offered or sold any Certificates to, or solicited offers
to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or
taken
any other action which would result in, a violation of Section 5 of the 1933
Act.
Very
truly yours,
[NAME
OF
TRANSFEROR]
By:___________________________________________
Name:
Title:
EXHIBIT
F
[FORM
OF
ERISA CERTIFICATE]
[Date]
[Name
of
Owner Trustee]
___________________
___________________
__________,
________ ________
Attn:
_______________________
Long
Beach Acceptance Receivables Corp.
Xxx
Xxxx
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attn:
President
Re: Long
Beach Acceptance Auto Receivables Trust 20__-__
Ladies
and Gentlemen:
[NAME
OF
OFFICER] hereby certifies that:
1. That
he
[she] is [Title of Officer] ____________________ of [Name of Transferee]
___________________________________________ (the "Transferee"), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of ________] [the United States], on behalf of which he [she] makes this
affidavit.
2. The
Transferee (1) is not, and on _______________ [insert date of transfer of
Certificate to Transferee] will not be, and on such date will not be acting
on
behalf of or investing the assets of (a) an "employee benefit plan" (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA or
(b)
a "plan" (as defined in Section 4975(e)(1) of the Internal Revenue Code of
1986,
as amended (the "Code")) that is subject to Section 4975 of the Code (each,
a
"Benefit Plan").
3. In
connection with the proposed purchase by the Transferee of the Certificate
issued pursuant to the Trust Agreement (the "Agreement") between Long Beach
Acceptance Receivables Corp., as Transferor (the "Transferor"), and [Name of
owner trustee], as trustee (the "Owner Trustee"), dated as of ___________,
20__-__, the Transferee hereby acknowledges that under the terms of the
Agreement no transfer of any Certificate (as defined in the Agreement) shall
be
permitted to be made to any person unless the Owner Trustee has received a
certificate from such transferee to the effect that such transferee is not
a
Benefit Plan and is not acting on behalf of or investing the assets of a Benefit
Plan.
[4. The
Certificates shall be registered in the name of _______________________ as
nominee for the Transferee.]
F-2
The
undersigned hereby acknowledges
that
it
is holding and will hold the Trust
Certificates
at the exclusive direction of and
as
nominee of the Investor named above.
[NAME
OF
NOMINEE]
By:______________________________
Name:
Title:
EXHIBIT
G
[FORM
OF
FLOW THROUGH ENTITY CERTIFICATE]
[Date]
[Name
of
Owner Trustee]
___________________
___________________
___________,
__________ _________
Attn:
_________________________
Long
Beach Acceptance Receivables Corp.
Xxx
Xxxx
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attn:
President
Re: Long
Beach Acceptance Auto Receivables Trust 20__-__
Ladies
and Gentlemen:
[NAME
OF
OFFICER] hereby certifies that:
1. That
he
[she] is [Title of Officer] ____________ of [Name of Transferee]
_______________________________ (the "Transferee"), a [savings institution]
[corporation] duly organized and existing under the laws of [the State of
____________] [the United States], on behalf of which he [she] makes this
affidavit.
2. The
Transferee (a) is acquiring the Certificate (as defined below) for its own
behalf and is not acting as agent or custodian for any other person or entity
in
connection with such acquisition, (b) if the Transferee is a partnership,
grantor trust or S corporation for federal income tax purposes (a "Flow Through
Entity"), any Certificate owned by such Flow Through Entity will represent
less
than 50% of the value of all the assets owned by such Flow Through Entity and
no
special allocation of income, gain, loss, deduction or credit from such
Certificate will be made among the beneficial owners of such Flow Through
Entity, and (c) the Transferee is a United States person within the meaning
of
the Internal Revenue Code of 1986, as amended.
3. The
Transferee hereby acknowledges that under the terms of the Trust Agreement
(the
"Agreement") between Long Beach Acceptance Receivables Corp., as Transferor
(the
"Transferor"), and [Name of owner trustee], as trustee (the "Owner Trustee"),
dated as of _____________, 20__-__ no transfer of any Certificate (as defined
in
the Agreement) shall be permitted to be made to any person unless the Owner
Trustee has received a certificate from such transferee to the effect that
such
transferee (a) is acquiring the Certificate for its own behalf and is not acting
as agent or custodian for any other person or entity in connection with such
acquisition, (b) if the transferee is a partnership, grantor trust or S
corporation for federal income tax purposes (a "Flow Through Entity"), any
Certificate owned by such Flow Through Entity will represent less than 50%
of
the value of all the assets owned by such Flow Through Entity and no special
allocation of income, gain, loss, deduction or credit from such Certificate
will
be made among the beneficial owners of such Flow Through Entity, and (c) the
transferee is a United States person within the meaning of the Internal Revenue
Code of 1986 as amended.
[4. The
Certificates shall be registered in the name of as nominee for the
Transferee.]
[NAME
OF
TRANSFEROR]
By:___________________________________________
Name:
Title:
The
undersigned hereby acknowledges
that
it
is holding and will hold the Trust
Certificates
at the exclusive direction of and
as
nominee of the Investor named above.
[NAME
OF
NOMINEE]
By:______________________________
Name:
Title:
G-2