Exhibit 99.2
FORM OF ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of __________, 200_ (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among USAA AUTO OWNER TRUST 200_-[ ], a Delaware
statutory trust (the "Issuer"), USAA FEDERAL SAVINGS BANK, a federally
chartered savings association, as administrator (in such capacity, the
"Administrator"), and __________, a __________, not in its individual capacity
but solely as Indenture Trustee (in such capacity, the "Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture
and the Certificates pursuant to the Trust Agreement and has entered into
certain agreements in connection therewith, including (i) the Sale and
Servicing Agreement, (ii) the Note Depository Agreement and (iii) the
Indenture (the Trust Agreement, the Sale and Servicing Agreement, the Note
Depository Agreement and the Indenture being referred to hereinafter
collectively as the "Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain duties of the Issuer and the Owner Trustee under
the Related Agreements and to provide such additional services consistent with
the terms of this Agreement and the Related Agreements as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions and Usage. Except as otherwise specified herein or as
the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as
to usage that shall be applicable herein.
2. Duties of the Administrator. (a) Duties with Respect to the
Indenture and the Note Depository Agreement. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer under the
Note Depository Agreement. In addition, the Administrator shall consult with
the Owner Trustee regarding the duties of the Issuer under the Indenture and
the Note Depository Agreement. The Administrator shall monitor the performance
of the Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's duties under the Indenture and the Note Depository
Agreement. The Administrator shall prepare for execution by the Issuer, or
shall cause the preparation by other
appropriate Persons of, all such documents, reports, filings, instruments,
notices, certificates and opinions that it shall be the duty of the Issuer to
prepare, file or deliver pursuant to the Indenture and the Note Depository
Agreement. In furtherance of the foregoing, the Administrator shall take, in
the name and on behalf of the Issuer, all appropriate action that is the duty
of the Issuer to take, pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to sections of the
Indenture):
(A) the preparation of or obtaining of the documents and
instruments required for execution of the Notes and delivery of the
same to the Indenture Trustee for authentication (Section 2.2);
(B) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Register and the determination as to whether the requirements of UCC
Section 8-401(a) are met and the preparation of an Issuer Request
requesting the Indenture Trustee to authenticate and deliver Notes in
connection with any transfer or exchange (Section 2.5);
(C) the determination as to whether the requirements of UCC
Section 8-405 are met and the preparation of an Issuer Request
requesting the Indenture Trustee to authenticate and deliver
replacement Notes in lieu of mutilated, destroyed, lost or stolen
Notes (Section 2.6);
(D) the determination of the expenses associated with the
issuance of replacement Notes (Section 2.6(b));
(E) the preparation, obtaining or filing of Issuer Requests,
instruments, opinions and certificates and other documents required
for the release of property from the lien of the Indenture (Section
2.10);
(F) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency and delivery of such to the
Indenture Trustee (Section 2.13);
(G) the maintenance and notice of location of the office in
the Borough of Manhattan, The City of New York, for registration of
transfer or exchange of Notes if the Indenture Trustee ceases to
maintain such an office (Section 3.2);
(H) the duty to cause newly appointed Note Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in
the Indenture regarding funds held in trust (Section 3.3(c));
(I) the delivery of the Issuer Order to the Indenture
Trustee to deposit monies with Note Paying Agents, if any, other than
the Indenture Trustee (Section 3.3(d));
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(J) the delivery of an Issuer Request for publication and
notification of unclaimed amounts (Section 3.3(e));
(K) the maintenance of the Issuer's status as a statutory
trust and the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument or agreement included in the Indenture Trust Estate
(Section 3.4);
(L) the preparation and filing, as applicable, of all
supplements and amendments to the Indenture and all financing
statements, continuation statements, instruments of further assurance
and other instruments and the taking of such other action as is
necessary or advisable to protect the Indenture Trust Estate
(Sections 3.5 and 3.7(c));
(M) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the
Indenture Trust Estate, and the annual delivery of the Officer's
Certificate and certain other statements as to compliance with the
Indenture (Sections 3.6 and 3.9);
(N) the identification to the Indenture Trustee in an
Officer's Certificate of any Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.7(b));
(O) the notification of the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination under the Sale and
Servicing Agreement and, if such Event of Servicing Termination
arises from the failure of the Servicer to perform any of its duties
under the Sale and Servicing Agreement with respect to the
Receivables, the taking of all reasonable steps available to remedy
such failure (Section 3.7(d));
(P) the appointment of the Successor Servicer and
preparation of the related servicing agreement (Section 3.7(e));
(Q) the notification of the termination of the Servicer and
appointment of the Successor Servicer (Section 3.7(f));
(R) the preparation and obtaining of any documents,
instruments and opinions required for the consolidation or merger of
the Issuer with another entity or the transfer by the Issuer of its
properties or assets (Section 3.10);
(S) the delivery of a letter for release (Section 3.11(b));
(T) the duty to cause the Servicer to comply with Sections
3.9, 3.10, 3.11, 3.12, 3.13 and 4.9 and Article VI of the Sale and
Servicing Agreement (Section 3.14);
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(U) upon the request of the Indenture Trustee, the execution
and delivery of any instruments and the undertaking of any actions
reasonably necessary to carry out more effectively the purpose of the
Indenture (Section 3.17);
(V) the delivery of written notice to the Indenture Trustee
and the Rating Agencies of each Event of Default under the Indenture
and each default by any party to the Sale and Servicing Agreement
(Section 3.19);
(W) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinions of Counsel
and the Independent Certificate relating thereto and the demand to
the Indenture Trustee for execution of certain instruments (Section
4.1);
(X) the monitoring of the Issuer's obligations as to the
satisfaction, discharge and defeasance of the Notes and the
preparation of an Officer's Certificate and the obtaining of an
opinion of a nationally recognized firm of independent certified
public accountants, a written certification thereof and the Opinions
of Counsel relating thereto (Section 4.1);
(Y) the demand to remit monies (Section 4.3);
(Z) the preparation of an Officer's Certificate to the
Indenture Trustee after the occurrence of any event which with the
giving of notice and the lapse of time would become an Event of
Default under Section 5.1(iii) of the Indenture, its status and what
action the Issuer is taking or proposes to take with respect thereto
(Section 5.1);
(AA) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Indenture Trust
Estate at one or more public or private sales called and conducted in
any manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(AB) the undertaking of actions set forth in Section 5.16 as
requested by the Indenture Trustee (Section 5.16);
(AC) the payment of expenses, costs and indemnities to the
Indenture Trustee (Section 6.7);
(AD) the removal of the Indenture Trustee upon the
occurrence of certain events, the preparation and delivery of notice
to Noteholders of the removal of the Indenture Trustee, the
appointment of a successor Indenture Trustee, the payment of any
expenses incurred in changing an indenture trustee, and, if
necessary, the petition of a court of competent jurisdiction for the
appointment of a successor Indenture Trustee (Section 6.8);
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(AE) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.1);
(AF) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic
basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable state
agencies and the transmission of such summaries, as necessary, to the
Noteholders (Section 7.3(a)); it being understood by the parties
hereto that the Indenture Trustee shall have no duty or obligation to
sign or file any report required to be filed with the Commission or
any other state agency or provide any certification to any such
Person or to the Administrator or any other Person that is obligated
to sign and file any such report;
(AG) the notification to the Indenture Trustee of the
listing of the Notes on any stock exchange (Section 7.4);
(AH) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Indenture Trust Estate (Sections 8.4 and 8.5);
(AI) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect
to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(AJ) the determination to execute and deliver new Notes
conforming to any supplemental indenture (Section 9.6);
(AK) the notice and deposit of money for prepayment of the
Notes (Section 10.1);
(AL) the notice to the Indenture Trustee and the duty to
cause the Indenture Trustee to provide notification to Noteholders of
prepayment of the Notes (Section 10.2);
(AM) the preparation of all Officer's Certificates, Issuer
Requests and Issuer Orders and the obtaining of Opinions of Counsel
and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(AN) the preparation of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release
of property from the lien of the Indenture (Section 11.1(b));
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(AO) the notification of the Rating Agencies pursuant to
Section 11.4 of the Indenture (Section 11.4);
(AP) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.6); and
(AQ) the recording of the Indenture and payment of related
expenses, if applicable (Section 11.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under
the Indenture (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and disbursements of
its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its willful misconduct, negligence
or bad faith;
(C) indemnify the Indenture Trustee and its officers,
directors, employees and agents for, and hold them harmless against,
any losses, liability or expense incurred without willful misconduct,
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Indenture, including the reasonable costs and
expenses (including reasonable attorneys' fees) of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the
Indenture; and
(D) indemnify, defend and hold harmless the Issuer, the
Owner Trustee, the Indenture Trustee and any of their respective
officers, directors, employees and agents from and against any loss,
liability or expense incurred by reason of (i) the Depositor's or the
Issuer's violation of federal or state securities laws in connection
with the offering and sale of the Notes and the Certificates or (ii)
any breach of the Depositor of any term, provision or covenant
contained in the Sale and Servicing Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Indenture Trustee and the termination of this Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any such amount from others, such Person
shall promptly repay such amounts to the Administrator, without interest.
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(b) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such
calculations and shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the Issuer or the Owner
Trustee, all such documents, reports, filings, instruments, certificates and
opinions that it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements, and at the
request of the Owner Trustee shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to the Related
Agreements. Subject to Section 6 of this Agreement, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability of the
Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax required to be
withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Issuer, the Depositor, or the Owner Trustee
set forth in Sections 5.5(a), (b), (c) and (d) and the penultimate sentence of
Section 5.5 of the Trust Agreement with respect to, among other things,
accounting and reports to Certificateholders.
(iv) The Administrator shall provide prior to ________________ a
certificate of an Authorized Officer in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply with
the requirements of the Code. The Administrator shall be required to update
the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no
longer be required.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 9.2 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee and any other
duties expressly required to be performed by the Administrator pursuant to the
Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance
with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action
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unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial
matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Note Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar,
Note Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any payments
to the Noteholders under the Related Agreements, (y) sell the Indenture Trust
Estate pursuant to Section 5.4 of the Indenture or (z) take any other action
that the Issuer directs the Administrator not to take on its behalf.
(d) Exchange Act. If requested by the Depositor for purposes of
compliance with its reporting obligations under the Exchange Act, the
Administrator will provide to the Depositor and the Servicer on or before
March 31 of each year beginning March 31, 20___, the servicing criteria
assessment required to be filed in respect of the Trust under the Exchange Act
under Item 1122 of Regulation AB if periodic reports under Section 15(d) of
the Exchange Act, or any successor provision thereto, were required to be
filed in respect of the Trust and shall cause a firm of independent certified
public accountants, who may also render other services to the Administrator,
the Servicer, the Seller or the Depositor, to deliver to the Depositor and the
Servicer the attestation report that would be required to be filed in respect
of the Trust under the Exchange Act if periodic reports under Section 15(d) of
the Exchange Act, or any successor provision thereto, were required to be
filed in respect of the Trust. Such attestation shall be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the Exchange Act, including, without limitation that in the event that an
overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion.
3. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be
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accessible for inspection by the Issuer and the Depositor at any time during
normal business hours.
4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,000
annually which shall be solely an obligation of the Depositor.
5. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Owner Trustee with respect
to the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in
any way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
8. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
9. Term of Agreement; Resignation and Removal of Administrator. (a)
This Agreement shall continue in force until the termination of the Issuer in
accordance with Section 8.1 of the Trust Agreement, upon which event this
Agreement shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign
its duties hereunder by providing the Issuer with at least sixty (60) days'
prior written notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
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(i) the Administrator shall default in any material respect in the
performance of any of its duties under this Agreement and, after notice of
such default, shall not cure such default within ten (10) days (or, if such
default cannot be cured in such time, such longer period acceptable to the
Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to
the taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in
clauses (ii) or (iii) of this Section 9(d) shall occur, it shall give written
notice thereof to the Issuer and the Indenture Trustee within seven days after
the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder. The Issuer shall provide
written notice of any such resignation or removal to the Indenture Trustee,
with a copy to the Rating Agencies.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign. The Indenture
Trustee shall assist the Issuer to find a successor Administrator.
10. Action upon Termination, Resignation or Removal. Promptly upon
the effective date of termination of this Agreement pursuant to Section 9(a)
or the resignation or removal of the Administrator pursuant to Section 9(b),
(c) or (d), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 9(a) deliver to the Issuer all property and
documents of or relating to the
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Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 9(b), (c) or
(d), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
11. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
USAA Auto Owner Trust 200_-[ ]
c/o Owner Trustee
[----------]
if to the Administrator, to:
USAA Federal Savings Bank
00000 XxXxxxxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Indenture Trustee, to:
[----------]
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
12. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, 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 Certificateholders; provided that such amendment
shall not, as set forth in an Opinion of Counsel satisfactory to the Indenture
Trustee and the Owner Trustee, materially and adversely affect the interest of
any Noteholder or Certificateholder. This Agreement may also be amended by the
Issuer, the Administrator and the Indenture Trustee with the written consent
of the Owner Trustee and the Noteholders of Notes evidencing not less than a
majority of the [Controlling Class] [Notes] Outstanding and the
Certificateholders of Certificates evidencing not less than a majority of the
[Percentage Interests] [Certificate Balance] for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or
the
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Certificateholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to
be made for the benefit of the Noteholders or Certificateholders or (ii)
reduce the aforesaid percentage of the Noteholders and Certificateholders
which are required to consent to any such amendment, without the consent of
the Noteholders of all the Notes Outstanding and Certificateholders of
Certificates evidencing the [Percentage Interests] [Certificate Balance].
Promptly after the execution of any such amendment, the Administrator shall
furnish written notification of such amendment to each Rating Agency.
13. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization
executes and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement in which such corporation or other organization agrees to
be bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF
LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall 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.
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18. Not Applicable to the Bank in Other Capacities. Nothing in this
Agreement shall affect any right or obligation the Bank may have in any
capacity other than as Administrator.
19. Limitation of Liability of Owner Trustee and Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this instrument
has been signed on behalf of the Issuer by __________, not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall __________ in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by __________ not in its individual capacity
but solely as Indenture Trustee and in no event shall __________ have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Indenture Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Article VI of the Indenture.
20. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
21. Nonpetition Covenants. Notwithstanding any prior termination of
this Agreement, the Administrator and the Indenture Trustee shall not, prior
to the date which is one year and one day after the termination of this
Agreement with respect to the Issuer, acquiesce, petition or otherwise invoke
or cause the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Issuer under
any federal or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
USAA AUTO OWNER TRUST 200_-[ ]
By: __________,
not in its individual capacity
but solely as Owner Trustee
By:
---------------------------
Name:
Title:
__________, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------
Name:
Title:
USAA FEDERAL SAVINGS BANK, as
Administrator
By:
--------------------------
Name:
Title:
14
APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1
