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EXHIBIT 99.2
[ ] AUTO RECEIVABLES TRUST [ ]-[ ]
FORM OF TRUST AGREEMENT
between
▇▇▇▇▇▇ BROTHERS ASSET SECURITIZATION LLC
and
_________________________________,
as Owner Trustee
Dated as of ___________ __, 200_
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................................... 1
SECTION 1.1. Capitalized Terms.................................................................. 1
SECTION 1.2. Other Interpretive Provisions...................................................... 1
ARTICLE II ORGANIZATION.................................................................................. 1
SECTION 2.1. Name............................................................................... 1
SECTION 2.2. Office............................................................................. 2
SECTION 2.3. Purposes and Powers................................................................ 2
SECTION 2.4. Appointment of Owner Trustee....................................................... 2
SECTION 2.5. Initial Capital Contribution of Trust Estate....................................... 3
SECTION 2.6. Declaration of Trust............................................................... 3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders................................ 3
SECTION 2.8. Title to Issuer Property........................................................... 3
SECTION 2.9. Situs of Issuer.................................................................... 3
SECTION 2.10. [Reserved]......................................................................... 4
SECTION 2.11. Federal Income Tax Allocations.................................................... 4
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS........................................................ 5
SECTION 3.1. Initial Ownership.................................................................. 5
SECTION 3.2. The Certificates................................................................... 5
SECTION 3.3. Authentication of Certificates..................................................... 5
SECTION 3.4. Registration of Transfer and Exchange of Certificates.............................. 6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.................................. 7
SECTION 3.6. Persons Deemed Certificateholders.................................................. 7
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.......................... 7
SECTION 3.8. Maintenance of Office or Agency.................................................... 8
SECTION 3.9. Appointment of Paying Agent........................................................ 8
SECTION 3.10. [Reserved]........................................................................ 9
SECTION 3.11. Book-Entry Certificates........................................................... 9
SECTION 3.12. Notices to Clearing Agency........................................................ 10
SECTION 3.13. Definitive Certificates........................................................... 10
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................................................... 10
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters............................. 10
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters....................... 11
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy............................ 11
SECTION 4.4. Restrictions on Certificateholders' Power.......................................... 12
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SECTION 4.5. Majority Control................................................................... 12
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..................................................... 12
SECTION 5.1. Establishment of Certificate Distribution Account.................................. 12
SECTION 5.2. Application of Funds in Certificate Distribution Account........................... 12
SECTION 5.3. Method of Payment.................................................................. 13
SECTION 5.4. No Segregation of Monies; No Interest.............................................. 14
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholders,
the Internal Revenue Service and Others.......................................... 14
SECTION 5.6. Signature on Returns; Tax Matters Partner.......................................... 14
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................................................... 15
SECTION 6.1. General Authority.................................................................. 15
SECTION 6.2. General Duties..................................................................... 15
SECTION 6.3. Action upon Instruction............................................................ 15
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions................. 16
SECTION 6.5. No Action Except under Specified Documents or Instructions......................... 17
SECTION 6.6. Restrictions....................................................................... 17
ARTICLE VII CONCERNING OWNER TRUSTEE..................................................................... 17
SECTION 7.1. Acceptance of Trusts and Duties.................................................... 17
SECTION 7.2. Furnishing of Documents............................................................ 18
SECTION 7.3. Representations and Warranties..................................................... 19
SECTION 7.4. Reliance; Advice of Counsel........................................................ 19
SECTION 7.5. Not Acting in Individual Capacity.................................................. 20
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables........................... 20
SECTION 7.7. Owner Trustee May Own Certificates and Notes....................................... 21
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................................... 21
SECTION 8.1. Owner Trustee's Fees and Expenses.................................................. 21
SECTION 8.2. Indemnification.................................................................... 21
SECTION 8.3. Payments to Owner Trustee.......................................................... 22
ARTICLE IX TERMINATION OF TRUST AGREEMENT................................................................ 22
SECTION 9.1. Termination of Trust Agreement..................................................... 22
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.............................................................. 23
SECTION 10.1. Eligibility Requirements for Owner Trustee........................................ 23
SECTION 10.2. Resignation or Removal of Owner Trustee........................................... 23
SECTION 10.3. Successor Owner Trustee........................................................... 24
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SECTION 10.4. Merger or Consolidation of Owner Trustee.......................................... 25
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee..................................... 25
ARTICLE XI MISCELLANEOUS................................................................................. 26
SECTION 11.1. Supplements and Amendments........................................................ 26
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders........................ 29
SECTION 11.3. Limitations on Rights of Others................................................... 29
SECTION 11.4. Notices........................................................................... 29
SECTION 11.5. Severability...................................................................... 29
SECTION 11.6. Separate Counterparts............................................................. 29
SECTION 11.7. Successors and Assigns............................................................ 30
SECTION 11.8. No Petition....................................................................... 30
SECTION 11.9. No Recourse....................................................................... 30
SECTION 11.10. Headings......................................................................... 30
SECTION 11.11. GOVERNING LAW.................................................................... 30
SECTION 11.12. Certificate Transfer Restrictions................................................ 30
SECTION 11.13. Servicer......................................................................... 31
SECTION 11.14. Sale and Servicing Agreement..................................................... 31
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate Depository Agreement
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TRUST AGREEMENT dated as of __________ [ ], 200_ between ▇▇▇▇▇▇
Brothers Asset Securitization LLC, a Delaware limited liability company, as
Depositor, and [_____________________], a [______________], as Owner Trustee.
ARTICLE I DEFINITIONS.
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement among the
trust established by this Agreement, ▇▇▇▇▇▇ Brothers Asset Securitization LLC,
as Seller, [ ], as Servicer, dated as of __________ [ ], 200_, as the same may
be amended and supplemented from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Agreement, and accounting terms partly defined in this Agreement to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) terms defined in Article 9 of the
UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (g) references to
any Person include that Person's successors and assigns; and (h) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II ORGANIZATION.
SECTION 2.1. Name. The trust created hereby shall be known as "[ ] Auto
Receivables Trust [ ]-[ ] (the "Trust"), in which name Owner Trustee may conduct
the business of such trust, make and execute contracts and other instruments on
behalf of such trust and ▇▇▇ and be sued.
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SECTION 2.2. Office. The office of Issuer shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address as Owner Trustee
may designate by written notice to the Certificateholders and Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Issuer is, and Issuer
shall have the power and authority, to engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and
principal of the Notes and distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from the Depositor pursuant to the terms
thereof, to make deposits to and withdrawals from the Reserve Account
and to pay the organizational, start-up and transactional expenses of
Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) 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
(f) 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 Certificateholders and the Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the other Basic
Documents.
SECTION 2.4. Appointment of Owner Trustee. Depositor hereby appoints
Owner Trustee as trustee of Issuer effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
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SECTION 2.5. Initial Capital Contribution of Trust Estate. Depositor
hereby sells, assigns, transfers, conveys and sets over to Owner Trustee, as of
the date hereof, the sum of $1. Owner Trustee hereby acknowledges receipt in
trust from Depositor, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Owner Trust Estate and shall be deposited in
the Certificate Distribution Account.
SECTION 2.6. Declaration of Trust. Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of Issuer under the Basic Documents. It is the intention of the
parties hereto that Issuer constitute a trust under the common law of the state
of [_______] and that this Agreement constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, solely for
income and franchise tax purposes, until the Certificates are held by other than
the Depositor, the Issuer will be disregarded as an entity separate from its
Owner and the Notes being debt of the Depositor. At such time that the
Certificates are held by more than one person, it is the intention of the
parties hereto that, solely for income and franchise tax purposes, the Issuer
shall be treated as a partnership, with the assets of the partnership being the
Receivables and other assets held by the Issuer, the partners of the partnership
being the Certificateholders, and the Notes being debt of the partnership. The
parties agree that, unless otherwise required by appropriate tax authorities,
until the Certificates are held by more than one person the Issuer will not file
or cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Issuer as an entity not separate
from its Owner.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders. (a)
Administrator shall pay organizational expenses of Issuer as they may arise or
shall, upon the request of Owner Trustee, promptly reimburse Owner Trustee for
any such expenses paid by Owner Trustee.
(b) No Holder or Owner shall have any personal liability for
any liability or obligation of the Trust.
SECTION 2.8. Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in Issuer 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 Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9. Situs of Issuer. Issuer will be located and administered
in the State of [________]. All bank accounts maintained by Owner Trustee on
behalf of Issuer shall be located in the State of [_______] or the State of New
York. Payments
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will be received by Issuer only in [________] or New York, and payments will be
made by Issuer only from [_________] or New York. The only office of Issuer will
be at the Corporate Trust Office in [__________].
SECTION 2.10. [Reserved].
SECTION 2.11. Federal Income Tax Allocations. If Certificates are held
by more than one person,
(a) amounts paid to Certificateholders pursuant to Section
5.2(a)(i) shall be treated as "guaranteed payments" within the meaning
of Section 707(c) of the Code;
(b) to the extent that the characterization provided for in
paragraph (a) of this Section is not respected, gross ordinary income
of Issuer for such month as determined for federal income tax purposes
shall be allocated among the Certificateholders as of the first Record
Date following the end of such month, in proportion to their ownership
of principal amount of the Certificates on such date, in an amount up
to the sum of (i) the Certificate holders' Monthly Interest
Distributable Amount for such month, (ii) interest on the excess, if
any, of the Certificateholders' Interest Distributable Amount for the
preceding Distribution Date over the amount in respect of interest at
the Certificate Rate that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, to the extent
permitted by law, at the Certificate Rate from such preceding
Distribution Date through the current Distribution Date, and (iii) the
portion of the market discount on the Receivables accrued during such
month that is allocable to the excess of the initial aggregate
principal amount of the Certificates over their initial aggregate issue
price; and
(c) thereafter all remaining net income of Issuer for such
month as determined for federal income tax purposes (and each item of
income, gain, credit, loss or deduction entering into the computation
thereof) shall be allocated to Depositor, to the extent thereof;
If the gross ordinary income of Issuer for any month is insufficient for the
allocations described in clause (b), subsequent gross ordinary income shall
first be allocated to make up such shortfall before being allocated as provided
in clause (c). Net losses of Issuer, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss, credit and
deduction entering into the computation thereof) shall be allocated to Depositor
to the extent Depositor is reasonably expected as determined by Servicer to bear
the economic burden of such net losses, then net losses shall be allocated among
the Certificateholders as of the first Record Date
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following the end of such month in proportion to their ownership of principal
amount of Certificates on such Record Date until the principal balance of the
Certificates is reduced to zero. Depositor is authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the economic income, gain or
loss to Depositor, the Certificateholders, or as otherwise required by the Code.
Notwithstanding anything provided in this Section 2.11, if the Certificates are
held solely by the Depositor, the application of this Section 2.11 shall be
disregarded.
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.
SECTION 3.1. Initial Ownership. Upon the formation of Issuer by the
contribution by Depositor pursuant to Section 2.5 and until the issuance of the
Certificates to the Depositor, Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.2. The Certificates. The Certificates shall be issued in
denominations of $10,000 and integral multiples thereof; provided that one
Certificate may be issued that includes any residual portion of the initial
Certificate Balance in a denomination other than an integral multiple of $1,000.
The Certificates shall be executed on behalf of Issuer by manual or facsimile
signature of an authorized officer of Owner Trustee. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of Issuer,
shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of authentication and delivery of such
Certificates. A transferee of a Certificate shall become a Certificateholder,
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in such
transferee's name pursuant to Section 3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to Issuer pursuant to the Sale and Servicing
Agreement, Owner Trustee shall cause the Certificates in an aggregate principal
amount equal to the initial Certificate Balance to be executed on behalf of
Issuer, authenticated and delivered to or upon the written order of Depositor,
signed by its chairman of the board, its president, its chief financial officer,
its chief accounting officer, any vice president, its secretary, any assistant
secretary, its treasurer or any assistant treasurer, without further corporate
action by Depositor, in authorized denominations. No Certificate shall entitle
its Holder to any benefit under this Agreement, or be valid for any purpose,
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by Owner Trustee or
[_________________], as Owner Trustee's authentication agent, by
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manual signature; such authentication shall constitute conclusive evidence that
such Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates. (a)
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.8, a Certificate Register in which, subject to
such reasonable regulations as it may prescribe, Owner Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided. [______________________] shall be the initial Certificate
Registrar.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8, Owner Trustee shall
execute, authenticate and deliver (or shall cause [___________________] as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like class and aggregate face amount dated the date of
authentication by Owner Trustee or any authenticating agent. At the option of a
Holder, Certificates may be exchanged for other Certificates of the same class
in authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to Owner Trustee and Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by a member firm of the New York Stock Exchange, a
commercial bank or trust company or an "eligible guarantor institution" with
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by Certificate Registrar in addition to, or 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 Owner Trustee or Certificate Registrar in accordance
with its customary practice.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but Owner Trustee or Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(e) The preceding provisions of this Section 3.4 notwithstanding, Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days preceding
any Distribution Date for any payment with respect to the Certificates.
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SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to Certificate Registrar, or if
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to Certificate Registrar and Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Certificate shall have been acquired by a bona fide purchaser, Owner
Trustee on behalf of Issuer shall execute and Owner Trustee, or
[_____________________], as 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, Owner Trustee or Certificate Registrar may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section 3.5 shall constitute conclusive evidence of an ownership interest
in Issuer, 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 or Owner 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, Owner Trustee, Certificate
Registrar or any agent of Owner Trustee or Certificate Registrar 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 Section 5.2 and for all other purposes whatsoever, and
none of Owner Trustee, Certificate Registrar or any agent of Owner Trustee or
Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
Owner Trustee shall furnish or cause to be furnished to Servicer, Depositor or
Indenture Trustee, within 15 days after receipt by Owner Trustee of a request
therefor from Servicer, Depositor or Indenture Trustee in writing, a list, in
such form as Servicer, Depositor or Indenture Trustee may reasonably require, of
the names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Holders of Certificates, or one or more Holders of
Certificates evidencing not less than 25% of the Certificate Balance, apply in
writing to Owner Trustee, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then Owner
Trustee shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Each Holder,
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by receiving and holding a Certificate, shall be deemed to have agreed not to
hold Depositor, Certificate Registrar or Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8. Maintenance of Office or Agency. Owner Trustee shall
maintain in the [Borough of Manhattan, The City of New York], an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
Owner Trustee in respect of the Certificates and the Basic Documents may be
served. Owner Trustee initially designates [___________________, _____________,
New York, New York _____], as its principal corporate trust office for such
purposes. Owner Trustee shall give prompt written notice to Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
Owner Trustee. Any Paying Agent shall have the revocable power to withdraw funds
from the Certificate Distribution Account for the purpose of making the
distributions referred to above. Owner Trustee may revoke such power and remove
Paying Agent if Owner Trustee determines in its sole discretion that Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect. Paying Agent shall initially be [________________________],
and any co-paying agent chosen by [________________________], and acceptable to
Owner Trustee. Paying Agent shall be permitted to resign upon 30 days' written
notice to Owner Trustee and Servicer. In the event that
[________________________] shall no longer be Paying Agent, Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by Owner Trustee to execute and deliver to
Owner Trustee an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with Owner Trustee that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. Paying Agent shall return all unclaimed funds to Owner
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to Owner Trustee. The provisions of Sections 7.1,
7.3, 7.4 and 8.1 shall apply to Owner Trustee also in its role as Paying Agent,
for so long as Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to Paying Agent shall include any co-paying agent unless the context
requires otherwise.
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SECTION 3.10. [Reserved]
SECTION 3.11. Book-Entry Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by or on behalf of
Issuer. Such Book-Entry Certificate or Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no beneficial owner will receive a Definitive
Certificate representing such beneficial owner's interest in such Certificate,
except as provided in Section 3.13. Unless and until Definitive Certificates
have been issued to beneficial owners pursuant to Section 3.13:
(a) the provisions of this Section shall be in full force and
effect;
(b) Certificate Registrar, each Paying Agent and Owner Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Agreement relating to the Book-Entry Certificates (including the
payment of principal of and interest on the Book-Entry Certificates and
the giving of instructions or directions to Owners of Book-Entry
Certificates) as the sole Holder of Book-Entry Certificates and shall
have no obligations to Owners thereof;
(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of Owners of the Book-Entry Certificates shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Owners and the
Clearing Agency and/or Clearing Agency Participants or Persons acting
through Clearing Agency Participants. Pursuant to the Certificate
Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 3.13, the initial Clearing Agency will make
book-entry transfers among Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Book-Entry
Certificates to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Certificate Balance, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Owners
and/or Clearing Agency Participants
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or Persons acting through Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Book-Entry Certificates and has delivered such
instructions to Owner Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to Owners is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Owners pursuant to Section
3.13, Owner Trustee and each Paying Agent shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to Owners.
SECTION 3.13. Definitive Certificates. If (a) Servicer advises Owner
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Certificates, and
Servicer is unable to locate a qualified successor, (b) Servicer at its option
advises Owner Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (c) after the occurrence of an Event of
Default, Owners of Certificates representing beneficial interests aggregating at
least a majority of the Certificate Balance advise the Clearing Agency and Owner
Trustee in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of Owners of Certificates,
then the Clearing Agency shall notify all Owners and Owner Trustee of the
occurrence of any such event and of the availability of the Definitive
Certificates to Owners requesting the same. Upon surrender to Owner Trustee of
the typewritten Certificate or Certificates representing the Book Entry
Certificates by the Clearing Agency, accompanied by registration instructions,
Owner Trustee shall execute and authenticate, or cause to be authenticated, the
Definitive Certificates in accordance with the instructions of the Clearing
Agency. Neither Certificate Registrar nor Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, Owner Trustee and each Paying Agent shall recognize the Holders of
the Definitive Certificates as Certificateholders. The Definitive Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to Owner Trustee, as evidenced by its
execution thereof.
ARTICLE IV ACTIONS BY OWNER TRUSTEE.
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters, Owner Trustee shall not take action
unless at least 30 days before the taking of such action, Owner Trustee shall
have notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified Owner Trustee in writing prior to the
30th day after such notice is
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given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any material claim or lawsuit by Issuer
(except claims or lawsuits brought in connection with the collection of
the Receivables) and the compromise of any material action, claim or
lawsuit brought by or against Issuer (except with respect to the
aforementioned claims or lawsuits brought in connection with the
collection of the Receivables);
(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
Certificateholders;
(d) the amendment, change or modification of the Sale and
Servicing Agreement or the Administration 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
Certificateholders; or
(e) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this Agreement, as
applicable.
Owner Trustee shall notify the Certificateholders in writing of any appointment
of a successor Paying Agent or Certificate Registrar within five Business Days
thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. Owner Trustee shall not have the power, except upon the direction of
the Certificateholders, to (a) remove Servicer under the Sale and Servicing
Agreement pursuant to Section 8.1 thereof, (b) except as expressly provided in
the Basic Documents, sell the Receivables after the termination of the
Indenture, (c) remove the Administrator under the Administration Agreement
pursuant to Section 9 thereof or (d) appoint a successor Administrator pursuant
to Section 9 of the Administration Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to Issuer until the Outstanding Amount of all the Notes has
been
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reduced to zero and without the unanimous prior approval of all
Certificateholders and the delivery to Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct Owner Trustee to take or refrain from taking
any action if such action or inaction would be contrary to any obligation of
Issuer or Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Section 2.3 nor shall Owner Trustee be obligated to follow
any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Holders of Certificates evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.
SECTION 5.1. Establishment of Certificate Distribution Account. Owner
Trustee, for the benefit of the Certificateholders, shall establish and maintain
in the name of Issuer an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders. Except as otherwise
provided herein, the Certificate Distribution Account shall be under the sole
dominion and control of Owner Trustee for the benefit of the Certificateholders.
SECTION 5.2. Application of Funds in Certificate Distribution Account.
(a) On each Distribution Date, Owner Trustee will, or will cause Paying Agent
to, based on the information contained in Servicer's Report delivered on the
related Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement, distribute to Certificateholders, to the extent of the funds
available, amounts deposited in the Certificate Distribution Account pursuant to
the Sale and Servicing Agreement on such Distribution Date in the following
order of priority:
(i) first, to the Certificateholders, on a pro rata
basis, an amount equal to the Certificateholders' Interest
Distributable Amount; and
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(ii) second, to the Certificateholders, on a pro rata
basis, an amount equal to the Certificateholders' Principal
Distributable Amount.
(b) On each Distribution Date, Owner Trustee shall send, or
cause to be sent, to each Certificateholder the statement provided to
Owner Trustee by Servicer pursuant to Section 5.6 of the Sale and
Servicing Agreement on such Distribution Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a Certificateholder, such
tax shall reduce the amount otherwise distributable to the
Certificateholder in accordance with this Section 5.2. Owner Trustee is
hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by Issuer (but such
authorization shall not prevent Owner Trustee from contesting any such
tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount
of any withholding tax imposed with respect to a Certificateholder
shall be treated as cash distributed to such Certificateholder at the
time it is withheld by Issuer and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-United
States Certificateholder), Owner Trustee may in its sole discretion
withhold such amounts in accordance with this clause (c). In the event
that an Owner wishes to apply for a refund of any such withholding tax,
Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse
Owner Trustee for any out- of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities, if (a) such
Certificateholder shall have provided to Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and such Holder's Certificates in the aggregate evidence an amount of not less
than $1,000,000 or (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, (y) by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register; provided that,
unless Definitive Certificates have been issued pursuant to Section 3.13, with
respect to Certificates registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be
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Cede & Co.), distributions will be made by wire transfer in immediately
available funds to the account designated by such nominee. Notwithstanding the
foregoing, the final distribution in respect of any Certificate (whether on the
Final Scheduled Distribution Date or otherwise) will be payable only upon
presentation and surrender of such Certificate at the office or agency
maintained for that purpose by Owner Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by Owner Trustee or any Paying Agent hereunder need
not be segregated in any manner except to the extent required by law, the
Indenture or the Sale and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and neither Owner Trustee nor
any Paying Agent shall be liable for any interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Owner Trustee shall
(a) maintain (or cause to be maintained) the books of Issuer on a calendar year
basis on the accrual method of accounting, (b) deliver (or cause to be
delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificateholder to prepare its federal and state
income tax returns, (c) prepare and file such tax returns relating to Issuer
(including a partnership information return, Form 1065, if applicable), and make
such elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Issuer's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.2(c) with respect to income or distributions to
Certificateholders. Owner Trustee shall cooperate with the Depositor in making
all elections pursuant to this Section 5.5 as directed in writing by the
Depositor. Owner Trustee shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Receivables and shall elect under Section 171 of the Code to amortize any bond
premium with respect to the Receivables. Owner Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.5, Depositor shall sign on behalf of
Issuer the tax returns of Issuer, unless applicable law requires Owner Trustee
to sign such documents, in which case such documents shall be signed by Owner
Trustee at the written direction of Depositor.
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(b) Depositor shall be the "tax matters partner" of Issuer
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.
SECTION 6.1. General Authority. Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which Issuer is named as
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which Issuer is named as a party and any
amendment thereto, in each case, in such form as Administrator shall approve, as
evidenced conclusively by Owner Trustee's execution thereof, and on behalf of
Issuer at the written direction of Administrator, to direct Indenture Trustee to
authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$[____________], and Class A-2 Notes in the aggregate principal amount of
$[____________]. In addition to the foregoing, Owner Trustee is authorized, but
shall not be obligated, to take all actions required of Issuer pursuant to the
Basic Documents. Owner Trustee is further authorized from time to time to take
such action as Servicer or Administrator recommends or directs in writing with
respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer
Issuer in the interest of Owners, subject to the Basic Documents and in
accordance with the provisions of this Agreement. Notwithstanding the foregoing,
Owner Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent Administrator has agreed
in the Administration Agreement to perform any act or to discharge any duty of
Owner Trustee or Issuer hereunder or under any Basic Document, and Owner Trustee
shall not be liable for the default or failure of Administrator to carry out its
obligations under the Administration Agreement. Except as expressly provided in
the Basic Documents, the Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct Owner Trustee in the
management of Issuer. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if Owner Trustee shall have
reasonably determined or been advised by counsel that such action is
likely to result in
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21
liability on the part of Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law and a
copy of such opinion has been provided to Seller and Servicer.
(c) Whenever Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or any Basic Document or 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 Owner Trustee or is silent
or is incomplete as to the course of action that Owner Trustee is
required to take with respect to a particular set of facts, Owner
Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted or
application of such provision, and to the extent Owner Trustee acts or
refrains from acting in good faith in accordance with any written
instruction of the Certificateholders received, Owner Trustee shall not
be liable on account of such action or inaction to any Person. If 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
Certificate holders, and shall have no liability to any Person for such
action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. 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 Owner Trustee is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by Owner
Trustee pursuant to Section 6.3; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against Owner Trustee. 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 Issuer or to record this Agreement or
any Basic Document. Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Owner Trust Estate that result from actions by, or
claims against, Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
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SECTION 6.5. No Action Except under Specified Documents or
Instructions. 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 Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to Owner Trustee
pursuant to Section 6.3.
SECTION 6.6. Restrictions. Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of Issuer set forth in Section 2.3 or (b)
that, to the actual knowledge of Owner Trustee, would (i) affect the treatment
of the Notes as indebtedness for federal income, state and local income and
franchise tax purposes, (ii) be deemed to cause a taxable exchange of the Notes
for federal income or state income or franchise tax purposes or (iii) cause
Issuer or any portion thereof to be treated as an association or publicly traded
partnership taxable as a corporation for federal income, state and local income
or franchise tax purposes. The Certificateholders shall not direct Owner Trustee
to take action that would violate the provisions of this Section 6.6.
ARTICLE VII CONCERNING OWNER TRUSTEE.
SECTION 7.1. Acceptance of Trusts and Duties. 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. 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. 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 or (ii) in the case of the inaccuracy of any representation
or warranty contained in Section 7.3 expressly made by Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) Owner Trustee shall not be liable for any error of
judgment made by a Responsible Officer of Owner Trustee;
(b) 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 Depositor, Servicer, Administrator or any
Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require 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 Owner Trustee shall have
reasonable
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23
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 Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) 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 Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificates, and
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Basic Documents;
(f) Owner Trustee shall not be liable for the default or
misconduct of Indenture Trustee, Servicer, Custodian or Administrator
under any of the Basic Documents or otherwise and Owner Trustee shall
have no obligation or liability to perform the obligations of Issuer
under this Agreement or the Basic Documents that are required to be
performed by Indenture Trustee under the Indenture, Servicer or
Custodian under the Sale and Servicing Agreement or Administrator under
the Administration Agreement; and
(g) 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 any of the Certificateholders,
unless such Certificateholders have offered to Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by Owner Trustee therein or thereby.
The right of Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and Owner Trustee shall not be answerable for other than its
negligence, bad faith or willful misconduct in the performance of any
such act.
SECTION 7.2. Furnishing of Documents. Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to Owner Trustee under the Basic
Documents.
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SECTION 7.3. Representations and Warranties. Owner Trustee hereby
represents and warrants to Depositor, for the benefit of the Certificateholders,
that:
(a) It is a [national] banking corporation [duly organized and
validly existing in good standing under the laws of the State of
[________] and having an office within the State of [_________]. 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) This Agreement constitutes a legal, valid and binding
obligation of Owner Trustee, enforceable against Owner Trustee in
accordance with its respective terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(d) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of 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.
SECTION 7.4. Reliance; Advice of Counsel. (a) 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. 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,
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 Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
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25
(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, Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into
with any of them, but Owner Trustee shall not be liable for the conduct
or misconduct of such agents or attorneys selected with reasonable care
and (ii) may consult with counsel, accountants and other skilled
persons knowledgeable in the relevant area to be selected with
reasonable care and employed by it. Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel,
accountants or other such persons and not contrary to this Agreement or
any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created,
[________________________] acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against 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.
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of Owner Trustee on the Certificates) shall be taken as the
statements of Depositor, and Owner Trustee assumes no responsibility for the
correctness thereof. Owner Trustee makes no representations as to the validity
or sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including: 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 Issuer or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of Indenture
Trustee, Administrator or Servicer or any subservicer taken in the name of Owner
Trustee.
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SECTION 7.7. Owner Trustee May Own Certificates and Notes. Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, Indenture Trustee,
Administrator and Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.
SECTION 8.1. Owner Trustee's Fees and Expenses. Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon in writing before the date hereof between the
Administrator and Owner Trustee, and Owner Trustee shall be entitled to be
reimbursed by the Administrator for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.2. Indemnification. The Administrator shall be liable as
primary obligor for, and shall indemnify Owner Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against Owner Trustee or any Indemnified Party in any way relating to
or arising out of this Agreement, the Basic Documents, the Owner Trust Estate,
the administration of the Owner Trust Estate or the action or inaction of Owner
Trustee hereunder, except only that the Administrator shall not be liable for or
required to indemnify Owner Trustee from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
7.1. The indemnities contained in this Section 8.2 shall survive the resignation
or termination of Owner Trustee or the termination of this Agreement. If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
Indemnified Party in respect of which indemnity may be sought pursuant to this
Section 8.2, such Indemnified Party shall promptly notify the Administrator in
writing, and the Administrator upon request of the Indemnified Party, shall
retain counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party and any others the Administrator may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. The Administrator shall not be liable for any
settlement of any claim or proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the Administrator agrees to indemnify any Indemnified Party from and against any
loss or liability by reason of such settlement
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27
or judgment. The Administrator shall not, without the prior written consent of
the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such
proceeding.
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX TERMINATION OF TRUST AGREEMENT.
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and Issuer shall terminate and be of no further force or
effect, upon the final distribution by Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and Article V. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder or Owner
shall not (x) operate to terminate this Agreement or Issuer, nor (y) entitle
such Certificateholder's or Owner'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 Issuer or Owner Trust Estate nor (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither Depositor nor
any Certificateholder shall be entitled to revoke or terminate the
Issuer.
(c) Notice of any termination of Issuer, specifying the
Distribution Date upon which the Certificateholders shall surrender
their Certificates to Paying Agent for payment of the final
distribution and cancellation, shall be given by Owner Trustee by
letter to Certificateholders mailed within five Business Days of
receipt of notice of such termination from Servicer given pursuant to
Section 9.1(c) of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of Paying Agent therein designated, (ii) the
amount of any such final payment (per $1,000 of Certificate Balance)
and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of Paying
Agent therein specified. Owner Trustee shall give such notice to
Certificate Registrar (if other than Owner Trustee) and Paying Agent at
the time such notice is given to Certificateholders. Upon
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presentation and surrender of the Certificates, Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on
such Distribution Date pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, Owner Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, Owner Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in Issuer after exhaustion of
such remedies shall be distributed, subject to applicable escheat laws, by Owner
Trustee to the Depositor.
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.
SECTION 10.1. Eligibility Requirements for Owner Trustee. Owner Trustee
shall at all times be a bank (i) authorized to exercise corporate trust powers,
(ii) having a combined capital and surplus of at least $50,000,000 and (iii)
subject to supervision or examination by Federal or state authorities. If such
bank 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 10.1, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time Owner
Trustee shall cease to be eligible in accordance with the provisions of this
Section 10.1, Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee. (a) Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to Administrator. Upon receiving such notice of
resignation, Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise imposed on it
23 TRUST AGREEMENT
29
under the Basic Documents until such successor has in fact assumed such
appointment.
(b) If at any time Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by Administrator, or if at any time Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
Administrator may remove Owner Trustee. If Administrator shall remove Owner
Trustee under the authority of the immediately preceding sentence, Administrator
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and payment of
all fees owed to the outgoing Owner Trustee.
(c) Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 10.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses owed
to the outgoing Owner Trustee. Administrator shall provide notice of such
resignation or removal of Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. (a) Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to
Administrator 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 Administrator and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and conferring in the successor
Owner Trustee all such rights, powers, duties and obligations.
(b) No successor Owner Trustee shall accept appointment as provided in
this Section 10.3 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
24 TRUST AGREEMENT
30
(c) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 10.3, Administrator shall mail notice of the successor
of such Owner Trustee to all Certificateholders, Indenture Trustee, the
Noteholders and the Rating Agencies. If Administrator shall fail to mail such
notice within 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 Administrator.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any corporation
into which 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 Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of Owner
Trustee, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of Owner Trustee hereunder; provided that such
corporation shall be eligible pursuant to Section 10.1; and provided further
that Owner Trustee shall mail notice of such merger, conversion or consolidation
to the Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
Administrator and Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
Owner Trustee to act as co-trustee, jointly with 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 Issuer, or any part
thereof, and, subject to the other provisions of this Section 10.5, such powers,
duties, obligations, rights and trusts as Administrator and Owner Trustee may
consider necessary or desirable. If Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon Owner Trustee shall be conferred
upon and exercised or performed by Owner Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-
25 TRUST AGREEMENT
31
trustee is not authorized to act separately without 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, 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 Issuer 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
Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) Administrator and Owner Trustee acting jointly
may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to 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 X. 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 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, Owner
Trustee. Each such instrument shall be filed with Owner Trustee and a copy
thereof given to Administrator.
(d) Any separate trustee or co-trustee may at any time appoint 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 become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by Owner
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by Depositor and Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholders:
26 TRUST AGREEMENT
32
(i) to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions
as may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to
be made to cause all or a portion of Issuer to be treated as,
a "financial asset securitization investment trust" as
described in the provisions of the Small Business Job
Protection Act of 1996, or to enable all or a portion of the
Issuer to qualify and an election to be made for similar
treatment under such comparable subsequent federal income tax
provisions as may ultimately be enacted into law, and (B) in
connection with any such election, to modify or eliminate
existing provisions set forth in this Agreement relating to
the intended federal income tax treatment of the Notes or
Certificates and Issuer in the absence of the election; it
being a condition to any such amendment that each Rating
Agency shall have notified the Depositor, the Servicer,
Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the
rating of any outstanding Notes or Certificates with respect
to which it is a Rating Agency; and
(iii) to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable (a) the
transfer to Issuer of all or any portion of the Receivables to
be derecognized under GAAP by Depositor to Issuer, (b) Issuer
to avoid becoming a member of Seller's consolidated group
under GAAP or (c) the Depositor, any Seller Affiliate or any
of their Affiliates to otherwise comply with or obtain more
favorable treatment under any law or regulation or any
accounting rule or principle; it being a condition to any such
amendment that each Rating Agency shall have notified the
Depositor, the Servicer, Indenture Trustee and the Owner
Trustee in writing that the amendment will not result in a
reduction or withdrawal of the rating of any outstanding Notes
or Certificates with respect to which it is a Rating Agency.
(b) This Agreement may also be amended from time to time by Depositor
and Owner Trustee, with prior written notice to the Rating Agencies, with the
27 TRUST AGREEMENT
33
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and, to the extent affected thereby, the consent
of the Holders of Certificates evidencing not less than a majority of the
Certificate Balance for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
provided that 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 Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Notes and the Certificate Balance
required to consent to any such amendment, without the consent of the Holders of
all the outstanding Notes and Holders of all outstanding Certificates.
(c) Promptly after the execution of any such amendment or consent,
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, Indenture Trustee and each of
the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or Indenture Trustee pursuant to this Section 11.1 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent, where required, shall approve the substance thereof.
The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as Owner
Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, Owner Trustee shall cause the filing of such amendment with the Secretary
of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, Owner Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied. Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the
28 TRUST AGREEMENT
34
Certificateholders to and in their 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 11.3. Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of Owner Trustee,
Issuer, Depositor, Administrator, Certificateholders, Servicer and, to the
extent expressly provided herein, Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4. 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, delivered by overnight courier
or mailed certified mail, return receipt requested, if to Owner Trustee,
addressed to the Corporate Trust Office; if to Depositor, addressed to
[_________________], Attention: [___________]; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6. 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 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Depositor,
Owner
29 TRUST AGREEMENT
35
Trustee and its [their] successors and each Certificateholder and its successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 11.8. No Petition. Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder or Certificate Owner, by accepting a Certificate, and Trustee
and each Noteholder or Note Owner by accepting the benefits of this Agreement,
hereby covenant and agree that they will not at any time institute against
Depositor, or join in any institution against Depositor of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, this
Agreement or any of the Basic Documents.
SECTION 11.9. No Recourse. Each Certificateholder or Certificate Owner
by accepting a Certificate acknowledges that such Certificateholder's or
Certificate Owner's Certificates represent beneficial interests in Issuer only
and do not represent interests in or obligations of the Depositor, Seller,
Servicer, Administrator, Depositor, Owner Trustee, Indenture Trustee or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as expressly set forth or contemplated in this Agreement, the
Certificates or the Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Certificate Transfer Restrictions. The Certificates may
not be acquired by or for the account of or with assets of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA")) that is subject to the provisions of Title 1 of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding a
Certificate, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing Certificates on
behalf of a Benefit Plan.
30 TRUST AGREEMENT
36
SECTION 11.13. Servicer. Servicer is authorized to execute on behalf of
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Issuer to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, Owner Trustee shall execute and
deliver to Servicer a power of attorney appointing Servicer as Issuer's agent
and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
SECTION 11.14. Sale and Servicing Agreement. Owner Trustee is hereby
authorized and directed to perform the duties and obligations of the Owner
Trustee set forth in Sections 4.4(b), 4.7, 5.1(c), 8.4 and 10.15 of the Sale and
Servicing Agreement.
31 TRUST AGREEMENT
37
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
--------------------------------------------,
as Owner Trustee
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇ Brothers Asset Securitization LLC, as
Depositor
By:
-----------------------------------------
Name:
Title:
32 TRUST AGREEMENT
38
EXHIBIT A
NUMBER $
R- CUSIP NO. _________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS
SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
[ ] AUTO RECEIVABLES TRUST [ ]-[ ]
[______]% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of Issuer,
as defined below, the property of which includes a pool of Motor Vehicle Loans
sold to Issuer by Special Purpose Entity.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF SPECIAL
PURPOSE ENTITY OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT DESCRIBED BELOW.)
THIS CERTIFIES THAT is the registered owner of
DOLLARS fully-paid, beneficial ownership interest in certain distributions of
[ ] AUTO RECEIVABLES TRUST [ ]-[ ] ("Issuer") formed by ▇▇▇▇▇▇ Brothers
Asset Securitization LLC, a Delaware limited liability company ("Seller"). This
Certificate has a Certificate Rate of ____% per annum.
Exhibit A, Page 1 TRUST AGREEMENT
39
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
_________________________ __________________________
or
as Owner Trustee as Owner Trustee
By _______________________
Authenticating Agent
By________________________ By _______________________
Authorized Signatory Authorized Signatory
Issuer was created pursuant to a Trust Agreement dated as of _________
[ ], 200_ (the "Trust Agreement"), between Seller and
[________________________], as owner trustee ("Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in Appendix X to the Sale and Servicing Agreement
among Issuer, Special Purpose Entity, as Seller, and [ ] as Servicer,
dated as of ___________ [ ], 200_, as the same may be amended or supplemented
from time to time.
This Certificate is one of the duly authorized Certificates designated
as "____% Asset Backed Certificates" (herein called the "Certificates"). Also
issued under the Indenture dated as of ___________ [ ], 199_, between Issuer and
[_______________] as indenture trustee, are [four] classes of Notes designated
as "Class A-1 _____% Asset Backed Notes" (the "Class A-1 Notes"), and "Class A-2
____% Asset Backed Notes" (the "Class A-2 Notes" and, together with the Class ▇-
▇ Notes, the "Notes"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
It is the intent of the Seller, Servicer and the Certificateholders that, for
purposes of federal income, state and local income and franchise tax, until the
Trust Certificates
Exhibit A, Page 2 TRUST AGREEMENT
40
are held by other than the Seller, the Issuer will be disregarded as an entity
separate from its owner. At such time that the Trust Certificates are held by
more than one person, it is the intent of the Seller, Servicer and the
Certificateholders that, for purposes of federal income, state and local income
and franchise tax, the Issuer will be treated as a partnership, the assets of
which are the assets held by the Issuer, and the Certificateholders will be
treated as partners in that partnership. The Depositor and the other
Certificateholders, by acceptance of a Trust Certificate, agree to treat, and to
take no action inconsistent with the treatment of, the Trust Certificates as
such for tax purposes.
Each Certificateholder and Certificate Owner, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder and Certificate
Owner will not at any time institute against Depositor, or join in any
institution against Depositor of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, the Trust Agreement or any
of the Basic Documents.
The Certificates do not represent an obligation of, or an interest in,
Depositor, Seller, Servicer, Administrator, Depositor, Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the Basic Documents.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Exhibit A, Page 3 TRUST AGREEMENT
41
IN WITNESS WHEREOF, Owner Trustee, on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
[ ] AUTO RECEIVABLES TRUST [ ]-[ ]
By: _______________________,
not in its individual
capacity, but solely as Owner Trustee
Dated: By:___________________________________________
Exhibit A, Page 4 TRUST AGREEMENT
42
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________________________________
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
___________________________________
Signature Guaranteed:
*
___________________________________
----------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or trust company.
Exhibit A, Page 5 TRUST AGREEMENT
43
EXHIBIT B
CERTIFICATE DEPOSITORY AGREEMENT
TRUST AGREEMENT