FORM OF ACCOUNT CONTROL AGREEMENT among VERIZON OWNER TRUST 20[__]-[_], as Grantor [______], as Secured Party and [______], as Financial Institution Dated as of [__] [__], 20[__]

Exhibit 10.6

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FORM OF ACCOUNT CONTROL AGREEMENT

among

VERIZON OWNER TRUST 20[__]-[_],
as Grantor

[______],
as Secured Party

and

[______],
as Financial Institution

Dated as of [__] [__], 20[__]

 

 

 

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ARTICLE I	USAGE AND DEFINITIONS	1
Section 1.1	Usage and Definitions	1
ARTICLE II	ESTABLISHMENT OF COLLATERAL ACCOUNTS	1
Section 2.1	Description of Accounts	1
Section 2.2	Account Changes	2
Section 2.3	Account Types..	2
Section 2.4	Securities Accounts.	2
Section 2.5	“Financial Assets” Election..	3
ARTICLE III	SECURED PARTY CONTROL	3
Section 3.1	Control of Collateral Accounts.	3
Section 3.2	Investment Instructions..	3
Section 3.3	Conflicting Orders or Instructions	4
ARTICLE IV	SUBORDINATION OF LIEN; WAIVER OF SET-OFF	4
Section 4.1	Subordination of Lien; Waiver of Set-Off..	4
ARTICLE V	REPRESENTATIONS, WARRANTIES AND COVENANTS	4
Section 5.1	Financial Institution’s Representations and Warranties	4
Section 5.2	Financial Institution’s Covenants.	5
Section 5.3	Hague Securities Convention	5
ARTICLE VI	OTHER AGREEMENTS	6
Section 6.1	Reliance by Financial Institution	6
Section 6.2	Termination.	6
Section 6.3	No Petition.	6
Section 6.4	Limitation of Liability.	6
Section 6.5	Conflict With Other Agreement	7
Section 6.6	[Reserved].	7
Section 6.7	Adverse Claims	7
Section 6.8	Maintenance of Collateral Accounts	7
ARTICLE VII	MISCELLANEOUS	8
Section 7.1	Amendment.	8
Section 7.2	Benefit of Agreement.	9
Section 7.3	Notices	9
Section 7.4	GOVERNING LAW.	10
Section 7.5	Submission to Jurisdiction	10
Section 7.6	WAIVER OF JURY TRIAL	10
Section 7.7	No Waiver; Remedies	10
Section 7.8	Severability	11
Section 7.9	Headings..	11
Section 7.10	Counterparts..	11

 

Exhibit A	Form of Notice of Sole Control	A-1
Exhibit B	Form of Termination of Securities Account Control Agreement	B-1

ACCOUNT CONTROL AGREEMENT, dated as of [__] [__], 20[__] (this “Agreement”), among VERIZON OWNER TRUST 20[__]-[_], a Delaware statutory trust, as grantor (the “Grantor”), [______], a national banking association, as Indenture Trustee for the benefit of the Noteholders (in this capacity, the “Secured Party”), and [______], a national banking association, in its capacity as both a “securities intermediary” as defined in Section 8-102 of the UCC and a “bank” as defined in Section 9-102 of the UCC (in these capacities, the “Financial Institution”).

BACKGROUND

The Grantor is engaging in a securitization transaction in which it will issue the Notes under an Indenture, and the Secured Party will hold funds in bank accounts for the benefit of the Noteholders.

The parties are entering into this Agreement to perfect the security interest in the bank accounts.

The parties agree as follows:

ARTICLE I
USAGE AND DEFINITIONS

Section 1.1      Usage and Definitions.  Capitalized terms used but not defined in this Agreement are defined in Appendix A to the Transfer and Servicing Agreement, dated as of [__] [__], 20[__], among Verizon Owner Trust 20[__]-[_], as Issuer, Verizon ABS LLC, as depositor (the “Depositor”), and Cellco Partnership d/b/a Verizon Wireless, as servicer (in such capacity, the “Servicer”), as marketing agent and as custodian.  Appendix A also contains usage rules that apply to this Agreement.  Appendix A is incorporated by reference into this Agreement.  References to the “UCC” mean the Uniform Commercial Code as in effect in the State of New York.

ARTICLE II
ESTABLISHMENT OF COLLATERAL ACCOUNTS

Section 2.1      Description of Accounts.  Pursuant to this Agreement and the Transfer and Servicing Agreement, the Servicer and the Financial Institution have established the following accounts, each in the name of “[______], as Note Paying Agent for the benefit of the Indenture Trustee, as secured party for Verizon Owner Trust 20[__]-[_]”, subject to the lien of the Indenture Trustee (each, a “Collateral Account”):

“Collection Account – [______], as Note Paying Agent for the benefit of the Indenture Trustee, as secured party for Verizon Owner Trust 20[__]-[_]” with account number [_________].

“Reserve Account – [______], as Note Paying Agent for the benefit of the Indenture Trustee, as secured party for Verizon Owner Trust 20[__]-[_]” with account number [_________].

“Negative Carry Account – [______], as Note Paying Agent for the benefit of the Indenture Trustee, as secured party for Verizon Owner Trust 20[__]-[_]” with account number [_________].

“Acquisition Account – [______], as Note Paying Agent for the benefit of the Indenture Trustee, as secured party for Verizon Owner Trust 20[__]-[_]” with account number [_________].

[ADD ANY ADDITIONAL ACCOUNTS]

Section 2.2      Account Changes.  Neither the Financial Institution nor the Grantor will change the name or account number of a Collateral Account without the consent of the Secured Party.  The Financial Institution will promptly notify the Servicer of any changes.  This Agreement will apply to each successor account to a Collateral Account, which will also be a Collateral Account.

Section 2.3      Account Types.  The Grantor, the Financial Institution and the Secured Party hereby confirm and agree that each Collateral Account is either a “securities account” (as defined in Section 8-501 of the UCC) or a “deposit account” (as defined in Section 9-102(a)(29) of the UCC).  The Grantor, the Financial Institution and the Secured Party acknowledge and agree that each Collateral Account is intended to be a “securities account.”  Notwithstanding such intention, (x) if a Collateral Account constitutes a “deposit account” under the UCC, the provisions of this Agreement governing a “deposit account” shall apply to such Collateral Account and (y) as used herein “deposit account” shall mean a Collateral Account to the extent that it is determined to be a “deposit account” (within the meaning of Section 9-102(a)(29) of the UCC) and “ securities account ” shall mean a Collateral Account to the extent that it is determined to be a “securities account” (within the meaning of Section 8-501 of the UCC).

Section 2.4      Securities Accounts.  If a Collateral Account is a securities account, the Financial Institution agrees that:

Section 2.5      “Financial Assets” Election.  The Financial Institution hereby agrees that each item of property (whether investment property, financial asset, security, instrument, general intangible or cash) credited to a Collateral Account to the extent that it constitutes a securities account shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.

ARTICLE III
SECURED PARTY CONTROL

Section 3.1      Control of Collateral Accounts.

Section 3.2      Investment Instructions.  If (a) the Financial Institution has not received an order or instruction from the Secured Party directing the deposit, withdrawal, transfer or redemption of the cash or other financial assets credited to a Collateral Account (a “Secured Party Order”) for the investment of funds in the Collection Account , the Acquisition Account or the Reserve Account by 11:00 a.m. New York time (or another time agreed to by the Financial Institution) on the Business Day before a Payment Date or (b) the Financial Institution receives notice from the Indenture Trustee that a Default or Event of Default has occurred and is continuing, the Financial Institution will invest and reinvest funds in the Collection Account , the  Acquisition Account or the Reserve Account , as applicable, according to the last investment instruction received, if any; provided, that, if on any Payment Date, the amount on deposit in the Acquisition Account (after giving effect to the acquisition of any Additional Receivables on such date) is greater than 25% of the aggregate Note Balance (after giving effect to any payments made on the Notes on such date), the Secured Party (upon receipt of direction from the Servicer) shall instruct the Financial Institution to invest any amounts in the Acquisition Account in excess of such amount in any Permitted Investments, other than (x) any investments set forth in clauses (b) or (c) of the definition of Permitted Investments that are held by or at the Indenture Trustee or (y) any investments set forth in clause (e) of the definition thereof.  If no prior investment instructions have been received or if the

instructed investments are no longer available or permitted, the Indenture Trustee will notify the Servicer and request new investment instructions, and the funds will remain uninvested until new investment instructions are received.  Funds on deposit in the Negative Carry Account will remain uninvested.  For the avoidance of doubt, the Financial Institution shall have no investment discretion.

Section 3.3      Conflicting Orders or Instructions.  If the Financial Institution receives conflicting orders or instructions from the Secured Party and the Grantor or any other Person, the Financial Institution will follow the orders or instructions of the Secured Party and not the Grantor or such other Person and shall incur no liability in connection therewith.

ARTICLE IV
SUBORDINATION OF LIEN; WAIVER OF SET-OFF

Section 4.1      Subordination of Lien; Waiver of Set-Off.  In the event that the Financial Institution has or subsequently obtains by agreement, by operation of Law or otherwise a security interest in a Collateral Account or any “security entitlement” or other property credited thereto, the Financial Institution hereby agrees that such security interest shall be subordinate to the security interest of the Secured Party.  The financial assets, money and other items credited to any Collateral Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Secured Party (except that the Financial Institution may set off (i) all amounts due to the Financial Institution in respect of customary fees and expenses for the routine maintenance and operation of the Collateral Accounts and (ii) the face amount of any checks which have been credited to any such Collateral Account but are subsequently returned unpaid because of uncollected or insufficient funds).

ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 5.1      Financial Institution’s Representations and Warranties.  The Financial Institution represents and warrants to the Grantor and the Secured Party as follows:

Section 5.2      Financial Institution’s Covenants.

Section 5.3      Hague Securities Convention.  The parties to this Agreement represent that there are no agreements (other than this Agreement, the Indenture and the Transfer and Servicing Agreement) that govern the Collateral Accounts.

ARTICLE VI
OTHER AGREEMENTS

Section 6.1      Reliance by Financial Institution.  The Financial Institution is not obligated to investigate or inquire whether the Secured Party may deliver a Secured Party Order.  The Financial Institution may rely on communications (including Secured Party Orders) believed by it in good faith to be genuine and given by the proper party.

Section 6.2      Termination.

Section 6.3      No Petition.  Each party agrees that, before the date that is one year and one day (or, if longer, any applicable preference period) after payment in full of (a) all securities issued by the Depositor or by a trust for which the Depositor was a depositor or (b) the Notes, it will not start or pursue against, or join any other Person in starting or pursuing against, (i) the Depositor or (ii) the Grantor, respectively, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar Law.  This Section 6.3 will survive the termination of this Agreement.

Section 6.4      Limitation of Liability.

Section 6.5      Conflict With Other Agreement.

Section 6.6      [Reserved].

Section 6.7      Adverse Claims.  If the Financial Institution receives written notice that any person is asserting any lien, encumbrance or Adverse Claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Collateral Account or any financial asset or other property credited thereto, the Financial Institution will promptly notify the Secured Party and the Grantor thereof.

Section 6.8      Maintenance of Collateral Accounts.  In addition to, and not in lieu of, the obligation of the Financial Institution to honor entitlement orders and instructions as set forth in Section 3.2 hereof, the Financial Institution, the Grantor and the Secured Party agree that the Collateral Accounts shall be maintained as follows:

ARTICLE VII
MISCELLANEOUS

Section 7.1      Amendment.

are materially and adversely affected, with the consent of the Certificateholders evidencing a majority of the Percentage Interest, to add any provisions to, or change in any manner or eliminate any provisions of, this Agreement or for the purpose of modifying in any manner the rights of the Noteholders or Certificateholders under this Agreement.

It shall not be necessary for the consent of the Certificateholders, the Noteholders or the Indenture Trustee pursuant to this Section 7.1 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof.  For the avoidance of doubt, any Noteholder consenting to any amendment shall be deemed to agree that such amendment does not have a material adverse effect on such Noteholder.  The manner of obtaining such consents (and any other consents of Certificateholders provided for in this Agreement or in any other Transaction Document) and of evidencing the authorization of the execution thereof by the Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe.

Section 7.2      Benefit of Agreement.  This Agreement is for the benefit of and will be binding on the parties and their permitted successors and assigns.  No other Person will have any right or obligation under this Agreement.

Section 7.3      Notices.

Section 7.4      GOVERNING LAW.  BOTH THIS AGREEMENT AND THE COLLATERAL ACCOUNTS (AS WELL AS THE “SECURITIES ENTITLEMENTS” RELATING THERETO), INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).  REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, NEW YORK SHALL BE DEEMED TO BE THE “BANK’S JURISDICTION” (WITHIN THE MEANING OF SECTION 9-304 OF THE UCC) AND THE “SECURITIES INTERMEDIARY’S JURISDICTION” (WITHIN THE MEANING OF SECTION 8-110 OF THE UCC).  THE LAW OF THE STATE OF NEW YORK SHALL GOVERN ALL ISSUES SPECIFIED IN ARTICLE 2(1) OF THE HAGUE SECURITIES CONVENTION.  NOTWITHSTANDING SECTION 7.1 OF THIS AGREEMENT, THE PARTIES WILL NOT AGREE TO ANY AMENDMENT TO THIS AGREEMENT TO CHANGE THE GOVERNING LAW TO ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK.

Section 7.5      Submission to Jurisdiction.  Each party submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State Court sitting in New York, New York for legal proceedings relating to this Agreement.  Each party irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or in the future have to the venue of a proceeding brought in such a court and any claim that the proceeding was brought in an inconvenient forum.

Section 7.6      WAIVER OF JURY TRIAL.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY MATTER ARISING THEREUNDER WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

Section 7.7      No Waiver; Remedies.  No party’s failure or delay in exercising a power, right or remedy under this Agreement will operate as a waiver.  No single or partial exercise of a power, right or remedy will preclude any other or further exercise of the power, right or remedy

or the exercise of any other power, right or remedy.  The powers, rights and remedies under this Agreement are in addition to any powers, rights and remedies under Law.

Section 7.8      Severability.  If a part of this Agreement is held invalid, illegal or unenforceable, then it will be deemed severable from the remaining Agreement and will not affect the validity, legality or enforceability of the remaining Agreement.

Section 7.9      Headings.  The headings in this Agreement are included for convenience and will not affect the meaning or interpretation of this Agreement.

Section 7.10      Counterparts.  This Agreement may be executed in multiple counterparts.  Each counterpart will be an original and all counterparts will together be one document.

[Remainder of Page Left Blank]

IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed by its duly authorized officer as of the date and year first above written.

VERIZON OWNER TRUST 20[__]-[_],

as Grantor

By:  [______]

         [________],

not in its individual capacity but solely as Owner  Trustee of Verizon Owner Trust 20[__]-[_]

Name:

Title:

[______],

as Secured Party

Name:

Title:

[______],

as Financial Institution

Name:

Title:

[Letterhead of [______]]

[Date]                    

[Financial Institution]

[Address]

[Address]

Re:

Notice of Sole Control

Ladies and Gentlemen:

As referenced in the Account Control Agreement dated [__] [__], 20[__] (the “Agreement”), among Verizon Owner Trust 20[__]-[_], a Delaware statutory trust, as grantor, [______], a national banking association, as Indenture Trustee for the benefit of the Noteholders (in this capacity, the “Secured Party”), and [______], a national banking association, in its capacity as both a “securities intermediary” as defined in Section 8-102 of the UCC and a “bank” as defined in Section 9-102 of the UCC (a copy of which is attached) we hereby give you notice of our sole control over the Collateral Accounts (as defined in the Agreement) and all financial assets or other property credited thereto.  You are hereby instructed not to accept any direction, instruction or entitlement order with respect to any Collateral Account or the financial assets or other property credited thereto from any person other than the undersigned, unless otherwise ordered by a court of competent jurisdiction.

You are instructed to deliver a copy of this notice by facsimile transmission to [_____] at [[          ]].

Very truly yours,

[______], as Secured Party

By:

____________________________ Name: Title:

[Letterhead of [______]]

[Date]                    

[Financial Institution]

[Address]

[Address]

Re:

Termination of Securities Account Control Agreement

You are hereby notified that the Account Control Agreement dated [__] [__], 20[__] (the “Agreement”), among Verizon Owner Trust 20[__]-[_], a Delaware statutory trust, as grantor, [______], a national banking association, as Indenture Trustee for the benefit of the Noteholders (in this capacity, the “Secured Party”), and [______], a national banking association, in its capacity as both a “securities intermediary” as defined in Section 8-102 of the UCC and a “bank” as defined in Section 9-102 of the UCC (a copy of which is attached) is terminated and you have no further obligations to the undersigned pursuant to such Agreement.  Notwithstanding any previous instructions to you, you are hereby instructed to accept all future directions with respect to the Collateral Accounts from [SPECIFY].  This notice terminates any obligations you may have to the undersigned with respect to such Agreement; however, nothing contained in this notice shall alter any obligations which you may otherwise owe to [______] pursuant to any other agreement.

You are instructed to deliver a copy of this notice by facsimile transmission to [______] at [[      ]].

Very truly yours,

[______], as Secured Party

By:

______________________________ Name: Title: