EXHIBIT 4.2
[EXECUTION VERSION]
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AMENDED AND RESTATED TRUST AGREEMENT
between
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
and
WILMINGTON TRUST COMPANY
Owner Trustee
Dated as of October 1, 2003
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS.........................................................................................1
SECTION 1.1. Capitalized Terms...................................................................1
SECTION 1.2. Other Definitional Provisions.......................................................2
ARTICLE II. ORGANIZATION.......................................................................................3
SECTION 2.1. Name................................................................................3
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.........................................................7
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..........................................10
ARTICLE III. CERTIFICATE AND TRANSFER OF INTEREST.............................................................10
SECTION 3.1. Initial Ownership..................................................................10
SECTION 3.2. The Certificate....................................................................10
SECTION 3.3. Authentication of Certificate......................................................11
SECTION 3.4. Registration of Certificate........................................................11
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate...................................12
SECTION 3.6. Persons Deemed Certificateholders..................................................12
SECTION 3.7. Transfer of the Class R Certificate................................................13
SECTION 3.8. Disposition In Whole But Not In Part...............................................14
ARTICLE IV. VOTING RIGHTS AND OTHER ACTIONS...................................................................15
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain Matters..................15
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
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE..............................................................16
SECTION 5.1. General Authority..................................................................16
SECTION 5.2. General Duties.....................................................................17
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.......................................................................19
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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.....................................................21
SECTION 6.4. Reliance; Advice of Counsel........................................................21
SECTION 6.5. Not Acting in Individual Capacity..................................................22
SECTION 6.6. Owner Trustee Not Liable for Certificate or Receivables............................22
SECTION 6.7. Owner Trustee May Own Notes........................................................22
SECTION 6.8. Payments from Owner Trust Estate...................................................23
SECTION 6.9. Doing Business in Other Jurisdictions..............................................23
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....................................................30
SECTION 10.4. Notices............................................................................30
SECTION 10.5. Severability.......................................................................31
SECTION 10.6. Separate Counterparts..............................................................32
SECTION 10.7. Assignments........................................................................32
SECTION 10.8. No Recourse........................................................................32
SECTION 10.9. Headings...........................................................................32
SECTION 10.10. GOVERNING LAW......................................................................32
SECTION 10.11. Servicer...........................................................................32
SECTION 10.12. Limitation on Liability............................................................32
SECTION 10.13. No Petition........................................................................32
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SECTION 10.14. Bankruptcy Matters.................................................................33
SECTION 10.15. Effect of Policy Expiration Date...................................................33
SECTION 10.16. Termination of Demand Note and/or Demand Note Guarantee............................33
EXHIBITS
Exhibit A - Form of Certificate of Trust
Exhibit B - Form of Class R 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
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AMENDED AND RESTATED TRUST AGREEMENT dated as of October 1, 2003
between LONG BEACH ACCEPTANCE RECEIVABLES CORP., a Delaware corporation (the
"Transferor"), and Wilmington Trust Company, a Delaware banking corporation,
acting hereunder not in its individual capacity but solely as Owner Trustee (in
such capacity, the "Owner Trustee").
WHEREAS, the Transferor and the Owner Trustee have entered into a Trust
Agreement dated as of October 1, 2003 (the "Original Trust Agreement"); and
WHEREAS, the Transferor and the Owner Trustee wish to amend and restate
the Original Trust Agreement by entering into this Agreement.
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
ARTICLE I.
Definitions
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 Amended and Restated Trust Agreement, as
the same may be further amended and supplemented from time to time.
"Certificate" shall mean the Class R Certificate.
"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
Statutory Trust Act.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned and the registrar appointed pursuant to Section 3.4.
"Certificateholder," "Class R Certificateholder" or "Holder" shall mean
the person in whose name a Certificate is registered on the Certificate
Register.
"Class R Certificate" means a trust certificate evidencing the entire
beneficial interest in the Trust, substantially in the form of Exhibit B
attached hereto.
"Instructing Party" shall have the meaning assigned to such term in
Section 5.3.
"Master Loan Agreement" means the Master Loan Agreement, dated as of
October 30, 2003, among LBARC-WI, as borrower, LBAC and CIGPF I Inc., as lender,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof.
"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.
"Statutory Trust Act" shall mean Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et. seq. as the same may be amended from time to
time.
"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.
"WTC" means Wilmington Trust Company, 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.
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(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
Organization
SECTION 2.1. Name. There is hereby formed a trust to be known as "Long
Beach Acceptance Auto Receivables Trust 2003-C," 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 ▇▇▇ and be sued on behalf of the Trust.
SECTION 2.2. Office. The principal office of the Trust, and such
additional offices as the Class R 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 Class R Certificateholder may unanimously designate
from time to time. The Class R Certificateholder hereby designates the office of
the Owner Trustee at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration 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 Class R Certificate pursuant to this Agreement, to sell
and exchange the Notes and to transfer the Class R Certificate
to the Transferor and to pay interest on and principal of the
Notes and distributions on the Certificate;
(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;
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(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
(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, LBARC-WI, 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 WTC, the Owner Trustee, the Indenture Trustee, the Trust Collateral
Agent, the Custodian, the Transferor, LBAC, the Class R 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.
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(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 WTC, 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.
(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 WTC, the Owner Trustee, the
Indenture Trustee, the Trust Collateral Agent, the Custodian, the Transferor,
LBAC, LBARC-WI 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 WTC, the Indenture Trustee, the Trust Collateral
Agent, the Custodian, the Transferor, LBAC, LBARC-WI 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 the Certificateholder, or join in
any institution against the 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 Certificate 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 the Certificateholder.
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(n) The Class R Certificate 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 Class R 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 Class R Certificateholder, and the Class R Certificateholder may
not perform any of the Trust's duties or obligations.
(p) The Class R Certificate shall entitle the Class R Certificateholder
only to the benefits and distributions as are expressly set forth in this
Agreement.
(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
WTC, the Owner Trustee, the Transferor, LBAC, LBARC-WI 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 for the use and benefit of the
Certificateholder in trust upon and subject to the conditions set forth herein,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a statutory trust
under the Statutory Trust Act and that this Agreement constitute the governing
instrument of such statutory 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 Statutory Trust Act with respect to
accomplishing the purposes of the Trust. The Owner Trustee shall file the
Certificate of Trust with the Secretary of State.
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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 Class R 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 Class R 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.
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
Certificate and upon which the Note Insurer relies in issuing the 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.
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(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.
(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 Certificate 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 Certificate.
(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.
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(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.
(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 Certificate 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;
(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; and
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(c) to execute and deliver such instruments of conveyance, assignment,
grant, confirmation, as well as any financing statements, in each case, as the
Note Insurer shall consider reasonably necessary in order to perfect the
security interests of the Collateral Agent in the collateral pledged under the
Spread Account Agreement.
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.
(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.
Certificate 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 Certificate the Transferor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificate. The Certificate 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.
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SECTION 3.3. Authentication of Certificate. Concurrently with the
conveyance of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Class R Certificate 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 Class R
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Class R
Certificate a certificate of authentication substantially in the form set forth
in Exhibit B, executed by the Owner Trustee or WTC as the Owner Trustee's
authentication agent, by manual signature; such authentication shall constitute
conclusive evidence that such Class R Certificate shall have been duly
authenticated and delivered hereunder. The Class R Certificate shall be dated
the date of its authentication.
SECTION 3.4. Registration of Certificate
(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 Certificate and of transfers
and exchanges of the Certificate as herein provided. WTC 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.
(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 WTC 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.
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(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 in the Spread
Account 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 and Section
5.6 of the Sale and Servicing Agreement. In addition, the Class R
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 Certificate. 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 WTC, 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.
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.
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SECTION 3.7. Transfer of the Class R Certificate.
(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 (other than with respect to the initial transfer of the
Certificate by the Transferor) 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.
(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.
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(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 Class R Certificate shall
be made to any Person unless (A) such Person is a Rated Entity, a Bankruptcy
Remote Entity or a statutory trust established under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801 et seq. that is a Bankruptcy Remote
Entity, or (B) such pledge is made to CIGPF I Corp Inc. ("CIGPF") pursuant to
the Master Loan Agreement; provided, however, that in the event CIGPF forecloses
on its security interest in the Class R Certificate, the Class R 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 Certificate shall bear a legend stating that it has 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 Certificate, the Trust Assets and other matters
regarding the Trust as the Transferor shall reasonably request to meet its
obligations under the preceding sentence.
(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. The Class R
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.
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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 Statutory
Trust Act 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.
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 Class A Notes and Reimbursement
Obligations have been paid and full and the expiration of the 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.
15
(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 the
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
statutory 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 Statutory Trust Act).
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-1
Notes in the aggregate principal amount of $170,000,000 and the Class A-2 Notes
in the aggregate principal amount of $80,000,000. 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.
16
(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(a) . 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 Certificate, 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 Class R 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.
(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.
17
(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. WTC 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, WTC and that are not related to the ownership or
the administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the 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.
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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 WTC 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;
(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 the
Certificateholder, other than as expressly provided for herein and in the Basic
Documents;
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(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;
(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 the
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;
(h) with respect to the Note Insurer or Instructing Party, 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 or
Instructing Party 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 or Instructing Party, and shall not be liable
to any such person for the failure of the Trust to perform its obligations to
such persons other than in accordance with Section 10.12 of this Agreement in
the performance of its express obligations under this Agreement; and
(i) notwithstanding anything to the contrary herein or in any other
document, the Owner Trustee shall not be required to execute, deliver or certify
on behalf of the Trust, the Servicer, the Transferor or any other Person any
filings, certificates, affidavits or other instruments required by the SEC or
required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. Notwithstanding any Person's
right to instruct the Owner Trustee, neither the Owner Trustee nor any agent,
employee, director or officer of the Owner Trustee shall have any obligation to
execute any certificates or other documents required by the SEC or required
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the rules and regulations
promulgated thereunder, and the refusal to comply with any such instructions
shall not constitute a default or breach under this Agreement or any other
document in connection herewith.
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.
20
SECTION 6.3. Representations and Warranties. The Owner Trustee and WTC
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 Policy), that:
(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.
21
(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 WTC 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 Certificate or Receivables.
The recitals contained herein and in the Certificate (other than the signature
and countersignature of the Owner Trustee on the Certificate) 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
Certificate (other than the signature and countersignature of the Owner Trustee
on the Certificate) 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 the 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.
22
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. WTC, 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.
SECTION 6.9. Doing Business in Other Jurisdictions. Notwithstanding
anything contained to the contrary, neither WTC 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 WTC (or any successor thereto); or (iii) subject WTC (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 WTC (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 WTC 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.
23
ARTICLE VIII.
Termination of Trust Agreement
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 Sale and Servicing 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 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
Certificate shall be made upon presentation and surrender of the Certificate 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 Certificate at the office of the Trust Collateral Agent therein
specified and (iv) interest will cease to accrue on the Certificate. 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
Certificate, 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.
24
In the event that the Certificateholder shall not surrender its
Certificate 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 its Certificate for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice the Certificate 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 Certificate, 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 Transferor.
(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 Statutory Trust Act.
ARTICLE IX.
Successor Owner Trustees and Additional Owner Trustees
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 Statutory Trust Act; (ii)
authorized to exercise corporate trust powers; (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 Class R 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 Class R 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.
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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 Class R 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 Class R 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 Class R
Certificateholder shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Class R 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.
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 Class R 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.
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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;
27
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the 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.
Miscellaneous
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 Demand Note Provider, the Demand Note Guarantor and the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholder (so long as the Certificate is outstanding), (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, the
Demand Note Provider, the Demand Note Guarantor or the 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 interest of the Demand Note
Provider or the Demand Note Guarantor, with the prior written consent of such
Person, to the extent such amendment materially and adversely affects the
interests of the Class A Noteholders, with the consent of the Class A
Noteholders evidencing not less than 50% of the outstanding Class A Note Balance
and, the consent of the Class R Certificateholder (which consent of the Class R
Certificateholder given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Class R
Certificateholder and any future Class R 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 Class A Note
Balance or the Certificateholder required to consent to any such amendment,
without the consent of the Noteholders of all the outstanding Class A Notes or
the Class R Certificateholder, as the case may be.
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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, the Demand
Note Provider, the Demand Note Guarantor 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 the 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 this Agreement and 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.
29
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, the Noteholders, the Demand Note
Provider and the Demand Note Guarantor, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 10.4. Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
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:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
(Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇)
(ii) if to the Transferor, addressed to:
Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
(Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇)
(iii) if to the Note Insurer, addressed to
Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Transaction Oversight
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
Telex No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy Nos.: (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇
(in each case in which notice or other communication to Financial
Security refers to an Event of Default, a claim on the Policy or
with respect to which failure on the part of Financial Security
to respond shall be deemed to constitute consent or acceptance,
then a copy of such notice or other communication should also be
sent to the attention of the General Counsel and the
Head-Financial Guaranty Group "URGENT MATERIAL ENCLOSED").
30
(iv) if to the Demand Note Provider, addressed to:
CIGPF I Corp
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer - Principal Finance and
▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(v) if to the Demand Note Guarantor, addressed to:
Citigroup Global Markets Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer - Principal Finance and
▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vi) in the case of the Rating Agencies, addressed to:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
and
Standard & Poor's Ratings Service
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance Department
(b) Any notice required or permitted to be given to a Class R
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of the Class R 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 Class R
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.
31
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 Class R Certificateholder by accepting a
Class R Certificate acknowledges that such Class R 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 Class R 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, AND THIS AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING
IN ANY WAY TO THIS AGREEMENT SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
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.
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 its 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.
32
SECTION 10.14. Bankruptcy Matters. To the fullest extent permitted by
law, no Certificateholder nor any party to this Agreement shall 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.
SECTION 10.16. Termination of Demand Note and/or Demand Note Guarantee.
All rights to notice, consent or waiver of the Demand Note Provider or the
Demand Note Guarantor, as applicable, under this Agreement shall cease to be
effective upon payment in full of all amounts due and owing to the Demand Note
Provider and the Demand Note Guarantor under the Sale and Servicing Agreement
and termination of the Demand Note or Demand Note Guarantee, as applicable, in
accordance with its terms.
33
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.
WILMINGTON TRUST COMPANY, as Owner Trustee
By:
--------------------------------------------
Name:
Title:
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By:
--------------------------------------------
Name:
Title:
[Trust Agreement]
EXHIBIT A
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST
OF
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2003-C
This Certificate of Trust of LONG BEACH ACCEPTANCE AUTO RECEIVABLES
TRUST 2003-C (the "Trust") is being duly executed and filed by the undersigned,
as trustee, to form a statutory trust under the Statutory Trust Act (12 Del.
C.ss.3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is LONG BEACH
ACCEPTANCE AUTO RECEIVABLES TRUST 2003-C.
2. Owner Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration.
3. Effective Date. This Certificate of Trust will be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust in accordance with Section 3811(a)
of the Act.
WILMINGTON TRUST COMPANY, as Owner Trustee
By:
--------------------------------------------
Name:
Title:
EXHIBIT B
[FORM OF CLASS R CERTIFICATE]
THIS CLASS R 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 CLASS R CERTIFICATE IS SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN SECTION 3.7 OF THE TRUST AGREEMENT. BY ITS
ACCEPTANCE OF THIS CLASS R CERTIFICATE THE HOLDER OF THIS CLASS R 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 CLASS R
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 CLASS R
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 CLASS R 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 CLASS R 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 CLASS R CERTIFICATE 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 CLASS R CERTIFICATE
WITH A FACE AMOUNT OF LESS THAN $100,000 FOR EACH SUCH THIRD PARTY.
NO TRANSFER OF THIS CLASS R 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
CLASS R 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 CLASS R 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 CLASS R CERTIFICATE REPRESENTS, BY VIRTUE OF ITS ACCEPTANCE
HEREOF, (I) THAT IT IS ACQUIRING THIS CLASS R 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 CLASS
R 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 CLASS R
CERTIFICATE 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.
B-1-2
TRANSFER OF THIS CLASS R CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET
FORTH IN SECTION 3.7 OF THE AGREEMENT.
B-1-3
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2003-C
UNDER AMENDED AND RESTATED TRUST AGREEMENT
DATED AS OF OCTOBER 1, 2003
Certificate Number:
Wilmington Trust Company, a Delaware banking corporation, not in its
individual capacity but solely as trustee (the "Owner Trustee") under an Amended
and Restated Trust Agreement, dated as of October 1, 2003, between Long Beach
Acceptance Receivables Corp., a Delaware corporation (the "Transferor") and the
Owner Trustee (the "Trust Agreement"), hereby certifies that LONG BEACH
ACCEPTANCE RECEIVABLES CORP. is the Holder of this Class R Certificate
representing the entire beneficial interest in the Long Beach Acceptance Auto
Receivables Trust (the "Trust") created by the Trust Agreement. This Class R
Certificate is issued pursuant to and is entitled to the benefits of the Trust
Agreement, and the Class R 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 Class R
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 Class R 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 Class R Certificateholder hereof, by its acceptance of this Class R
Certificate, warrants and represents to, and agrees with, the Owner Trustee that
it shall not transfer this Class R Certificate except in accordance with the
Trust Agreement.
The Class R Certificateholder, by acceptance of its Class R
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 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 Class R 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 Class R Certificateholder, by acceptance of its Class R
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-1-4
This Class R 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-1-5
IN WITNESS WHEREOF, the Trust, pursuant to the Trust
Agreement, has caused this Class R Certificate to be issued as of the date
hereof.
LONG BEACH ACCEPTANCE AUTO
RECEIVABLES TRUST 2003-C
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:
-------------------------------------------
Name:
Title:
Dated: October 30, 2003
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: Wilmington Trust Company,
Authenticating Agent
By:
--------------------------------------------
Name:
Title:
Dated: October 30, 2003
B-1-6
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 Class R Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________ Attorney to transfer said Class R
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 Class R Certificate in every particular,
without alteration, enlargement or any change whatever.
B-1-7
EXHIBIT C
[FORM OF "QUALIFIED INSTITUTIONAL BUYER"
TRANSFEREE'S CERTIFICATE]
[Date]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
Ladies and Gentlemen:
In connection with the proposed purchase by the buyer listed below (the
"Buyer") of the Class R Certificate (as defined below) issued pursuant to the
Amended and Restated Trust Agreement, dated as of October 1, 2003 (the "Trust
Agreement"), between Long Beach Acceptance Receivables Corp., as Transferor (the
"Transferor") and Wilmington Trust Company, as trustee (the "Owner Trustee"),
relating to Long Beach Acceptance Auto Receivables Trust 2003-C (the "Class R
Certificate"), 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 Class R Certificate 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 Class R Certificate has 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 Class R
Certificate and has received such information (whether from the Transferor, the
Owner Trustee, the transferor from which it proposes to purchase the Class R
Certificate, 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 Class R
Certificate. In the normal course of its business, the Buyer invests in or
purchases securities similar to the Class R Certificate. The Buyer is aware that
it may be required to bear the economic risk of an investment in the Class R
Certificate 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 Class R 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.
/ / 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.
/ / 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.
/ / 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.
/ / 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
/ / 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.
/ / 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.
/ / ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
/ / Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisers Act of 1940.
/ / 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.
/ / Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
/ / 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 (▇▇▇▇▇) 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 Class R
Certificate 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.
/ / 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).
/ / 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:
-----------------------------------------------
Print Name of Buyer
Date:
C-7
EXHIBIT D
[FORM OF "ACCREDITED INVESTOR" TRANSFEREE'S CERTIFICATE]
[Date]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
Dear Sirs:
In connection with the proposed purchase by the buyer listed below (the
"Buyer") of the Class R Certificate (as defined below) issued pursuant to the
Amended and Restated Trust Agreement, dated as of October 1, 2003 (the "Trust
Agreement"), between Long Beach Acceptance Receivables Corp., as Transferor (the
"Transferor"), and Wilmington Trust Company, as trustee (the "Owner Trustee"),
relating to Long Beach Acceptance Auto Receivables Trust 2003-C (the "Class R
Certificate"), the Buyer confirms that:
1. The Buyer understands that the Class R Certificate has 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 Class R Certificate may be resold, pledged or
transferred only: (i) so long as such Class R Certificate is 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 Class R Certificate 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 Class R
Certificate from it of the above resale restrictions. The Buyer further
understands that in connection with any transfer of the Class R Certificate 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 Class R Certificate is 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 Class R Certificate.
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 Class R Certificate and has received such information (whether
from the Transferor, the Servicer, the transferor from which it proposes to
purchase the Class R Certificate, 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
Class R Certificate. In the normal course of its business, the Buyer invests in
or purchases securities similar to the Class R Certificate. The Buyer is aware
that it (or any investor account) may be required to bear the economic risk of
an investment in the Class R Certificate 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]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
Ladies and Gentlemen:
In connection with the disposition by the transferor listed below (the
"Transferor") of the Class R Certificate (as defined below) issued pursuant to
the Amended and Restated Trust Agreement, dated as of October 1, 2003 (the
"Trust Agreement") between Long Beach Acceptance Receivables Corp., as
Transferor (the "Transferor"), and Wilmington Trust Company, as trustee (the
"Owner Trustee"), relating to Long Beach Acceptance Auto Receivables Trust
2003-C (the "Class R Certificate"), the Transferor certifies that:
(a) the Transferor understands that the Class R Certificate has 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 the Class R Certificate to,
or solicited offers to buy the Class R Certificate 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]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
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 Class R 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
Class R Certificate issued pursuant to the Trust Agreement (the "Agreement")
between Long Beach Acceptance Receivables Corp., as Transferor (the
"Transferor"), and Wilmington Trust Company, as trustee (the "Owner Trustee"),
dated as of October 1, 2003, the Transferee hereby acknowledges that under the
terms of the Agreement no transfer of any Class R 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 Class R Certificate shall be registered in the name of
_______________________ as nominee for the Transferee.]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] _______________, this__ day of ____________.
[Name of Transferee]
By:
--------------------------------------------
Name:
Title:
The undersigned hereby acknowledges
that it is holding and will hold the Class R
Certificate at the exclusive direction of and
as nominee of the Investor named above.
[Name of Nominee]
By:
--------------------------
Name:
Title:
F-2
EXHIBIT G
[FORM OF FLOW THROUGH ENTITY CERTIFICATE]
[Date]
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Administration
Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Re: Long Beach Acceptance Auto Receivables Trust 2003-C
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 Class R 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 Class R 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 Class R 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
Amended and Restated Trust Agreement (the "Agreement") between Long Beach
Acceptance Receivables Corp., as Transferor (the "Transferor"), and Wilmington
Trust Company, as trustee (the "Owner Trustee"), dated as of October 1, 2003 no
transfer of any Class R 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 Class R 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 Class R 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 Class R 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 Class R Certificate shall be registered in the name of as
nominee for the Transferee.]
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer) _____________________________, this ___ day of
-----------.
[NAME OF TRANSFEREE]
By:
-----------------------------------
Name:
Title:
The undersigned hereby acknowledges
that it is holding and will hold the Class R
Certificate at the exclusive direction of and
as nominee of the Investor named above.
[NAME OF NOMINEE]
By:
-------------------------------------
Name:
Title:
G-2