Exhibit 4.1
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FORM OF TRUST AGREEMENT
between
REGIONS ACCEPTANCE LLC,
as Depositor,
and
[OWNER TRUSTEE],
as Owner Trustee
Dated as of [___]
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms.............................................................................1
Section 1.02. Other Definitional Provisions.................................................................4
ARTICLE II
ORGANIZATION
Section 2.01. Name..........................................................................................5
Section 2.02. Office........................................................................................5
Section 2.03. Purposes and Powers...........................................................................5
Section 2.04. Appointment of Owner Trustee..................................................................5
Section 2.05. Initial Capital Contribution of Trust Estate..................................................6
Section 2.06. Declaration of Trust..........................................................................6
Section 2.07. [Reserved]....................................................................................6
Section 2.08. Title to Trust Property.......................................................................6
Section 2.09. Situs of Trust................................................................................6
Section 2.10. Representations, Warranties and Covenants of the Depositor....................................6
Section 2.11. Federal Income Tax Allocations................................................................7
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership.............................................................................8
Section 3.02. The Trust Certificates........................................................................8
Section 3.03. Execution, Authentication and Delivery of Trust Certificates..................................9
Section 3.04. Registration of Transfer and Exchange of Trust Certificates...................................9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates......................................10
Section 3.06. Persons Deemed Owners........................................................................10
Section 3.07. Access to List of Certificateholders' Names and Addresses....................................10
Section 3.08. Maintenance of Office or Agency..............................................................11
Section 3.09. Appointment of Paying Agent..................................................................11
Section 3.10. Book-Entry Trust Certificates................................................................12
Section 3.11. Notices to Clearing Agency...................................................................12
Section 3.12. Definitive Trust Certificates................................................................13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters.................................................13
Section 4.02. Action by Certificateholders with Respect to Certain Matters.................................15
Section 4.03. Action by Certificateholders with Respect to Bankruptcy......................................15
Section 4.04. Restrictions on Certificateholders' Power....................................................15
Section 4.05. Majority Control.............................................................................15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Accounts..............................................................16
Section 5.02. Application of Trust Funds...................................................................16
Section 5.03. Method of Payment............................................................................17
Section 5.04. [Reserved]...................................................................................17
Section 5.05. Accounting and Reports to Certificateholders, the Internal Revenue Service and Others........17
Section 5.06. Signature on Returns; Tax Matters Partner....................................................18
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority............................................................................18
Section 6.02. General Duties...............................................................................18
Section 6.03. Action upon Instruction......................................................................19
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions...........................20
Section 6.05. No Action Except Under Specified Documents or Instructions...................................20
Section 6.06. Restrictions.................................................................................20
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties..............................................................20
Section 7.02. Furnishing of Documents......................................................................22
Section 7.03. Representations and Warranties...............................................................22
Section 7.04. Reliance; Advice of Counsel..................................................................22
Section 7.05. Not Acting in Individual Capacity............................................................23
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for Receivables...........................23
Section 7.07. Owner Trustee May Own Trust Certificates and Notes...........................................23
Section 7.08. Doing Business in Other Jurisdictions........................................................23
Section 7.09. Paying Agent; Authenticating Agent...........................................................24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses............................................................24
Section 8.02. Indemnification..............................................................................24
Section 8.03. Payments to the Owner Trustee................................................................24
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement...............................................................25
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee...................................................26
Section 10.02. Resignation or Removal of Owner Trustee......................................................26
Section 10.03. Successor Owner Trustee......................................................................27
Section 10.04. Merger or Consolidation of Owner Trustee.....................................................27
Section 10.05. Appointment of Co-Trustee or Separate Trustee................................................27
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments...................................................................29
Section 11.02. No Legal Title to Trust Estate in Certificateholders.........................................30
Section 11.03. Limitations on Rights of Others..............................................................30
Section 11.04. Notices......................................................................................30
Section 11.05. Severability.................................................................................31
Section 11.06. Separate Counterparts........................................................................31
Section 11.07. Successors and Assigns.......................................................................31
Section 11.08. Covenants of the Depositor...................................................................31
Section 11.09. No Petition..................................................................................31
Section 11.10. No Recourse..................................................................................31
Section 11.11. Headings.....................................................................................31
Section 11.12. GOVERNING LAW................................................................................31
Section 11.13. Trust Certificate Transfer Restrictions......................................................31
Exhibit A Form of Trust Certificate.....................................................................A-1
This TRUST AGREEMENT, dated as of [___], is between REGIONS
ACCEPTANCE LLC, a limited liability company as depositor (the "Depositor"),
and [OWNER TRUSTEE], a [___], as owner trustee (the "Owner Trustee").
NOW, THEREFORE, the Depositor and the Owner Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the
meanings set forth below:
"Administration Agreement" shall mean the Owner Trust Administration
Agreement dated as of [___], among [__________], not acting in its individual
capacity but solely as Owner Trustee of the Trust, Regions Bank, as Owner Trust
Administrator, and [INDENTURE TRUSTEE], as Indenture Trustee.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
Section 11.13.
"Book-Entry Trust Certificate" shall mean a beneficial interest in
the Trust Certificates, the ownership and transfer of which shall be made
through book-entries by a Clearing Agency as described in Section 3.10.
"Certificate Balance" shall mean Class [C] Certificate Balance.
"Certificate Interest Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Certificate Principal Distribution Account" shall have the meaning
assigned to such term in Section 5.01.
"Certificate Owner" shall mean, with respect to a Book-Entry Trust
Certificate, a Person who is the beneficial owner of such Book-Entry Trust
Certificate, as reflected on the books of the Clearing Agency or on the books
of a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" or "Holder" shall mean a Person in whose name a
Trust Certificate is registered.
"Class [A-1] Notes" shall mean the [___]% Asset Backed Notes, Class
[A-1], issued pursuant to the Indenture.
"Class [A-2] Notes" shall mean the [___]% Asset Backed Notes, Class
[A-2], issued pursuant to the Indenture.
"Class [A-3] Notes" shall mean the [___]% Asset Backed Notes, Class
[A-3], issued pursuant to the Indenture.
"Class [A-4] Notes" shall mean the [___]% Asset Backed Notes, Class
[A-4], issued pursuant to the Indenture.
"Class [B] Notes" shall mean the [___]% Asset Backed Notes, Class
[B], issued pursuant to the Indenture.
"Class [C] Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit A.
"Class [C] Certificate Balance" shall mean the Initial Class [C]
Certificate Balance reduced by all amounts allocable to principal previously
distributed to Class [C] Certificateholders.
"Class [C] Certificateholder" or "Certificateholder" shall mean a
Person in whose name a Class [C] Certificate is registered.
"Class [C] Rate" shall mean [___]% per annum.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
[ADDRESS], Attention: [___], or at such other address in the State of Delaware
as the Owner Trustee may designate by notice to the Certificateholders and the
Depositor, or the principal corporate trust office of any successor Owner
Trustee at the address (which shall be in the State of Delaware) designated by
such successor Owner Trustee by notice to the Certificateholders and the
Depositor.
"Definitive Trust Certificates" shall have the meaning set forth in
Section 3.10.
"Depositor" shall mean Regions Acceptance LLC and its successors, in
its capacity as depositor hereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in Section
8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" shall mean the Indenture, dated as of [___] between the
Trust and [INDENTURE TRUSTEE], as Indenture Trustee.
"Initial Class [ ] Certificate Balance" shall mean $[___].
"Outstanding Amount" shall have the meaning assigned thereto in the
Indenture.
"Owner Trustee" shall mean [OWNER TRUSTEE], a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09 and shall initially be [PAYING AGENT].
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust or business trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Record Date" shall mean, with respect to a Payment Date, the close
of business on the day immediately preceding such Payment Date.
"Regions Bank" means Regions Bank, an Alabama state banking
corporation, and its successors.
"Residual Interest" shall mean the right to receive the amounts in
respect of the Trust Estate that are distributable to the Depositor pursuant
to the Sale and Servicing Agreement.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement dated as of [___], among [__________] acting not in its individual
capacity but solely as Owner Trustee of the Trust, as issuer, the Depositor,
Regions Bank, as seller, master servicer, custodian and administrator, and
[INDENTURE TRUSTEE], as indenture trustee, as the same may be amended or
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State
of Delaware.
"Treasury Regulations" shall mean regulations, including proposed or
temporary Regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement or, as the
context may require, the Owner Trustee acting on behalf of the Trust.
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"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit A.
"Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Sale and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account, and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust pursuant to the Sale and Servicing Agreement and the
Administration Agreement.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used and not otherwise defined herein have the
meanings assigned to them in the Sale and Servicing Agreement or, if not
defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles. To the
extent that the definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the meanings of such
terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; "or" includes "and/or";
and the term "including" shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular and plural forms of such terms and to the masculine, feminine and
neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
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ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as "Regions
Auto Receivables Trust 200_-_," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities and the Trust shall have the power and authority:
(a) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and the
Trust Certificates, in each case in accordance with the Basic Documents;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase the Receivables, to fund the Reserve Account,
to pay the organizational, start-up and transactional expenses of the
Trust and to pay the balance of such proceeds to the Depositor pursuant
to the Sale and Servicing Agreement;
(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 the Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is to be 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 Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights,
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powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Trust Estate and shall be
deposited in the Certificate Distribution Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee. No Certificateholder shall have any
personal liability for any liability or obligation of the Trust.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the 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 Delaware and that this Agreement constitute the governing instrument
of such 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
the Depositor and the Notes will be characterized as debt. 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 Depositor and the Certificateholders by acceptance of a
Certificate agree to such treatment and agree to take no action inconsistent
with such treatment. 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 separate from its owner.
Section 2.07. [Reserved].
Section 2.08. Title to Trust Property. Subject to the Indenture, legal
title to all the Trust Estate shall be vested at all times in the Owner
Trustee.
Section 2.09. Situs of Trust. The Trust will be located in the State of
Delaware and administered in the State of Delaware or the State of New York.
All bank accounts maintained by the Owner Trustee on behalf of the Trust shall
be located in the State of Delaware or the State of New York. The Trust shall
not have any employees; provided, however, that nothing herein shall restrict
or prohibit the Owner Trustee from having employees within or without the
State of Delaware. Payments will be received by the Trust only in Delaware or
New York, and payments will be made by the Trust only from Delaware or New
York. The only office of the Trust will be at the Corporate Trust Office in
the State of Delaware.
Section 2.10. Representations, Warranties and Covenants of the Depositor.
The
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Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly organized and validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power
and authority to sell and assign the property to be sold and assigned to
and deposited with the Trust and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary limited
liability company action; and the execution, delivery and performance of
this Agreement have been duly authorized by the Depositor by all
necessary limited liability company action.
(d) The Depositor has duly executed and delivered this Agreement,
and this Agreement constitutes a legal, valid and binding obligation of
the Depositor, enforceable against the Depositor, in accordance with its
terms.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited
liability company agreement of the Depositor, or any indenture, agreement
or other instrument to which the Depositor is a party or by which it is
bound; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties.
(f) There are no proceedings or investigations pending or threatened
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) seeking any determination or
ruling that might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of,
this Agreement.
(g) The representations and warranties of the Depositor in Section
3.02 of the Sale and Servicing Agreement are true and correct.
Section 2.11. Federal Income Tax Allocations. Net income of the Trust for
any month
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as determined for federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated:
(a) first, among the Certificate Owners as of the first day following the
end of such month, in proportion to their ownership of principal amount of
Trust Certificates on such date, net income in an amount up to the sum of (1)
the Class [C] Certificateholders' Monthly Interest Distributable Amount for
such month, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distributable Amount for the preceding Payment Date over the amount
in respect of interest that is actually deposited in the Certificate
Distribution Account on such preceding Payment Date, to the extent permitted
by law, at the Pass-Through Rate from such preceding Payment Date through the
current Payment Date, (iii) the portion of the market discount on the
Receivables accrued during such month that is allocable to the excess, if any,
of the initial aggregate principal amount of the Trust Certificates over their
initial aggregate issue price, and (iv) any other amounts of income payable to
the Certificateholders for such month; such sum to be reduced by any
amortization by the Trust of premium on Receivables that corresponds to any
excess of the issue price of Certificates over their principal amount; and
(b) second, to the holder of the Residual Interest, to the extent of any
remaining net income.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (a) above, subsequent net income shall first
be allocated to make up such shortfall before being allocated as provided in
the preceding sentence. Net losses of the Trust, if any, for any month as
determined for federal income tax purposes (and each item of income, gain,
loss and deduction entering into the computation thereof) shall be allocated
to the holder of the residual interest in the Trust to the extent that such
Person is reasonably expected to bear the economic burden of such net losses,
and any remaining net losses shall be allocated among the Certificate Owners
as of the first Record Date following the end of such month in proportion to
their ownership of principal amount of Trust Certificates on such Record Date.
The Trust 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 the Certificateholders, or
as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance
of the Trust Certificates or the transfer by the Depositor of the Residual
Interest, the Depositor shall be the sole beneficiary of the Trust.
Section 3.02. The Trust Certificates. The Trust Certificates shall be
issued in minimum denominations of $[___] and in integral multiples of $[___]
in excess thereof; provided, however, that the Trust Certificates may be
issued in such denomination as required to include any residual amount. The
Trust Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Owner Trustee. Trust
Certificates bearing
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the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be validly issued and entitled to the benefit of this Agreement
and shall be valid and binding obligations of the Trust, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Trust Certificates or did not hold
such offices at the date of authentication and delivery of such Trust
Certificates.
A transferee of a Trust Certificate, if any, shall become a
Certificateholder and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Trust Certificate duly registered in such transferee's name pursuant to
Section 3.04.
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates. On the Closing Date, the Owner Trustee shall cause the Trust
Certificates in an aggregate principal amount equal to the Initial Class [C]
Certificate Balance to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by the Owner
Trustee on behalf of the Trust, without further action by the Depositor, in
authorized denominations. No Trust Certificate shall entitle its Holder to any
benefit under this Agreement or be valid for any purpose unless there shall
appear on such Trust Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Owner Trustee or
[AUTHENTICATING AGENT], as the Owner Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Trust Certificate shall have been duly authenticated and delivered hereunder.
All Trust Certificates shall be dated the date of their authentication.
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Owner Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. [CERTIFICATE
REGISTRAR] shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or shall cause [AUTHENTICATING AGENT]
as its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Certificateholder, Trust Certificates may be exchanged for other Trust
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Trust Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the related Certificateholder or such Certificateholder's attorney
duly authorized in writing. Each Trust Certificate surrendered for
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registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Owner Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of 15 days
preceding the due date for any payment with respect to the Trust Certificates.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the transfer
of the Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates. If
(a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and
(b) there shall be delivered to the Certificate Registrar and the 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 Trust Certificate has
been acquired by a protected purchaser, the Owner Trustee on behalf of the
Trust shall execute and the Owner Trustee or [AUTHENTICATING AGENT], as the
Owner Trustee's authenticating agent, shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and denomination. In
connection with the issuance of any new Trust Certificate under this Section,
the Owner Trustee or the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership in
the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar or any Paying Agent may treat the Person in whose name any Trust
Certificate is registered in the Certificate Register as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Master
Servicer, the Paying Agent and the Depositor, within 15 days after receipt by
the Owner Trustee of a written request therefor from the Master Servicer, the
Paying Agent or the Depositor, a list, in such form as the Master Servicer or
the Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. The Certificate
Registrar shall also furnish to the Owner Trustee and the Paying Agent a copy
of such list at any time there is a change
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therein. If (i) three or more Certificateholders or (ii) one or more Holders
of Trust Certificates evidencing not less than 25% of the Certificate Balance
apply in writing to the 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 Trust Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the 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
Certificateholder, by receiving and holding a Trust Certificate, shall be
deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived. The Certificate Registrar shall upon the request of the Owner Trustee
provide such list, or access to such list, of Certificateholders as
contemplated by this Section 3.07.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
designate in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the Basic Documents
may be served. The Owner Trustee initially designates [___] as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.02 and shall report the amounts of such distributions to
the 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. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect; provided, however, the Owner Trustee shall
have no duty to monitor or oversee the compliance by the Paying Agent of its
obligations under this Agreement or any other Basic Document. The Paying Agent
initially shall be [PAYING AGENT], and any co-paying agent chosen by [PAYING
AGENT]. [PAYING AGENT] shall be permitted to resign as Paying Agent upon 30
days' written notice to the Owner Trustee. In the event that [PAYING AGENT]
shall no longer be the Paying Agent, the Depositor, with the consent of the
Owner Trustee, shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed hereunder to execute and
deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the 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. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to
the Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable,
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to any other paying agent appointed hereunder. Any reference in this Agreement
to the Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 3.10. Book-Entry Trust Certificates. The Trust Certificates, upon
original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates representing Book-Entry Trust Certificates,
to be delivered to The Depository Trust Company, the initial Clearing Agency,
by, or on behalf of, the Trust. Such Trust Certificate or Trust Certificates
shall initially be registered on the Certificate Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Certificate Owner
will receive a definitive Trust Certificate representing such Certificate
Owner's interest in such Trust Certificate, except as provided in Section
3.12. Unless and until definitive, fully registered Trust Certificates
("Definitive Trust Certificates") have been issued to Certificate Owners
pursuant to Section 3.12:
(a) The provisions of this Section shall be in full force and
effect;
(b) The Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of principal of and interest on the
Trust Certificates and the giving of instructions or directions
hereunder) as the sole Holder of the Trust Certificates and shall have no
obligation to the Certificate Owners;
(c) To the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section
shall control;
(d) The rights of Certificate Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Clearing Agency Participants. Pursuant to the Note Depository
Agreement, unless and until Definitive Trust Certificates are issued
pursuant to Section 3.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the Trust
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 Trust 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 Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Trust Certificates and has delivered such instructions to the Owner
Trustee.
Section 3.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Trust Certificates shall have been issued to
Certificate Owners pursuant to Section 3.12, the Owner Trustee shall give all
such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency, and shall have no obligations to
the Certificate Owners.
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Section 3.12. Definitive Trust Certificates. If (i) the Administrator
advises the Owner Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Trust Certificates and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the Owner
Trustee in writing that it elects to terminate the book-entry system through
the Clearing Agency or (iii) after the occurrence of an Event of Default or a
Master Servicer Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Certificate Balance advise the Clearing
Agency in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Certificate Owners,
then the Clearing Agency shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Trust Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the typewritten Trust Certificate or Trust
Certificates representing the Book-Entry Trust Certificates by the Clearing
Agency, accompanied by registration instructions, the Trust shall execute and
the Owner Trustee shall authenticate the Definitive Trust Certificates in
accordance with the written instructions of the Clearing Agency. None of the
Trust, the Certificate Registrar or the 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
Trust Certificates, the Owner Trustee shall recognize the Holders of the
Definitive Trust Certificates as Certificateholders. The Definitive Trust
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Owner Trustee, as
evidenced by its execution thereof.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters. With respect
to the following matters, the Owner Trustee shall not take action unless at
least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders of record as of the preceding Record Date in
writing of the proposed action and such Certificateholders shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims
or lawsuits for collection of the Receivables);
(b) the amendment of the Indenture by a supplemental indenture or
any other change to this Agreement or any Basic Document in circumstances
where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture or
any other change to this Agreement or any Basic Document in circumstances
where the consent of any Noteholder is not required and such amendment
would materially adversely affect the interests of the
Certificateholders;
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(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Certificateholders;
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, 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;
(f) the consent to the calling or waiver of any default of any Basic
Document;
(g) the consent to the assignment by the Indenture Trustee or Master
Servicer of their respective obligations under any Basic Document, unless
permitted in the Basic Documents;
(h) except as provided in Article IX hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(i) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any
other entity;
(j) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the Basic Documents;
(k) do any act that conflicts with any other Basic Document;
(l) do any act that would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity, unless
permitted in the Basic Documents; or
(p) change the Trust's purpose and powers from those set forth in
this Trust Agreement.
In addition, the Trust shall not commingle its assets with those of
any other entity. The Trust shall maintain its financial and accounting books
and records separate from those of any other entity. Except as expressly set
forth herein, the Trust shall not pay the indebtedness, operating expenses and
liabilities of any other entity. The Trust shall maintain appropriate
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minutes or other records of all appropriate actions and shall maintain its
office separate from the offices of the Depositor and the Master Servicer.
The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, and to the extent otherwise consistent with the
Basic Documents, to (i) remove or replace the Master Servicer or the Indenture
Trustee, (ii) institute proceedings to have the Trust declared or adjudicated
a bankruptcy or insolvent, (iii) consent to the institution of bankruptcy or
insolvency proceedings against the Trust, (iv) file a petition or consent to a
petition seeking reorganization or relief on behalf of the Trust under any
applicable federal or state law relating to bankruptcy, (v) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any
similar official) of the Trust or a substantial portion of the property of the
Trust, (vi) make any assignment for the benefit of the Trust's creditors,
(vii) cause the Trust to admit the writing its inability to pay its debts
generally as they become due, (viii) take any action, or cause the Trust to
take any action, in furtherance of any of the foregoing (any of the above, a
"Bankruptcy Action"). So long as the Indenture remains in effect, no
Certificateholder shall have the power to take, and shall not take, any
Bankruptcy Action with respect to the Trust or direct the Owner Trust to take
any Bankruptcy Action with respect to the Trust.
Section 4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 8 thereof, (b) appoint a
successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Master Servicer under the Sale and Servicing Agreement pursuant
to Section 8.02 thereof, (d) amend the Sale and Servicing Agreement pursuant
to Section 10.01(b) of such document, or (e) except as expressly provided in
the Basic Documents, sell the Receivables after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the
Certificateholders.
Section 4.03. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust without the unanimous prior approval of
all Certificateholders and the delivery to the Owner Trustee by each such
Certificateholder of a certification certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the Basic Documents or would be contrary to Section 2.03; nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section 4.05. 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 Trust 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 Trust Certificates evidencing not less than
a majority of the Certificate Balance at the time of the delivery of such
notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Accounts. The Owner Trustee, for
the benefit of the Certificateholders, shall cause the Paying Agent to
establish and maintain in the name of the Trust an interest distribution
account (the "Certificate Interest Distribution Account") and a principal
distribution account (the "Certificate Principal Distribution Account"), each
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders. The title of the Certificate
Interest Distribution Account shall be "[OWNER TRUSTEE] as Owner Trustee of
Regions Auto Receivables Trust 200_-_: Certificate Interest Distribution
Account for the benefit of the Certificateholders." The title of the
Certificate Principal Distribution Account shall be "[OWNER TRUSTEE] as Owner
Trustee of Regions Auto Receivables Trust 200_-_: Certificate Principal
Distribution Account for the benefit of the Certificateholders." The
Certificate Interest Distribution Account and the Certificate Principal
Distribution Account will be maintained as Eligible Deposit Accounts.
The Trust shall possess all right, title and interest in all funds on
deposit from time to time in the Certificate Interest Distribution Account and
the Certificate Principal Distribution Account and in all proceeds thereof.
Except as otherwise expressly provided herein, the Certificate Interest
Distribution Account and the Certificate Principal Distribution Account shall
be under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholders. If, at any time, the Certificate Interest Distribution
Account or the Certificate Principal Distribution Account ceases to be an
Eligible Deposit Account, the Paying Agent shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Interest Distribution Account
or Certificate Principal Distribution Account, as applicable, as an Eligible
Deposit Account and shall transfer any cash or any investments to such new
Certificate Interest Distribution Account or Certificate Principal
Distribution Account, as applicable.
Section 5.02. Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall cause the Paying
Agent to distribute to Certificateholders amounts deposited in the Certificate
Interest Distribution Account and amounts deposited in the Certificate
Principal Distribution Account pursuant to Section 5.06 of the Sale and
Servicing Agreement with respect to such Payment Date.
(b) On each Payment Date, the Owner Trustee shall cause the Paying
Agent to send to each Certificateholder the statement or statements provided
to the Owner Trustee by the Master Servicer pursuant to Section 5.08 of the
Sale and Servicing Agreement with respect to such Payment Date.
(c) On each Payment Date, the holder of the Residual Interest shall
be entitled to receive amounts distributable to Regions Bank pursuant to the
Sale and Servicing Agreement.
(d) 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 such Certificateholder in
accordance with this Section. The Owner Trustee or
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Paying Agent 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 the Trust (but such authorization
shall not prevent the Owner Trustee or the Paying Agent 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
the Trust 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-U.S. Certificateholder), the Owner Trustee or
the Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph.
Any Holder of a Trust Certificate that is organized under the laws of
a jurisdiction outside the United States shall, on or prior to the date such
Holder becomes a Holder, (a) so notify the Owner Trustee and the Paying Agent,
(b) (i) provide the Owner Trustee and the Paying Agent with Internal Revenue
Service form W-8BEN, W-8ECI, W-8EXP or W-8BEN (or successor forms), as
appropriate, or (ii) notify the Owner Trustee and the Paying Agent that it is
not entitled to an exemption from United States withholding tax or a reduction
in the rate thereof on payments of interest. Any such Holder agrees by its
acceptance of a Trust Certificate, on an ongoing basis, to provide like
certification for each taxable year and to notify the Owner Trustee and the
Paying Agent should subsequent circumstances arise affecting the information
provided the Owner Trustee or the Paying Agent in clauses (a) and (b) above.
The Owner Trustee and the Paying Agent shall be fully protected in relying
upon, and each Holder by its acceptance of a Trust Certificate hereunder
agrees to indemnify and hold the Owner Trustee and the Paying Agent harmless
against all claims or liability of any kind arising in connection with or
related to the Owner Trustee's and the Paying Agent's reliance upon any
documents, forms or information provided by any Holder to the Owner Trustee
and the Paying Agent.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
Business Days prior to such Payment Date and such Holder's Trust Certificates
in the aggregate evidence a denomination of not less than $1,000,000, or, if
not, by check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register.
Section 5.04. [Reserved].
Section 5.05. Accounting and Reports to Certificateholders, the Internal
Revenue Service and Others. The Owner Trustee shall (a) unless otherwise
required under the Code, maintain (or cause to be maintained) the books of the
Trust on a calendar year basis and the accrual method of accounting, (b)
deliver (or cause to 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) file (or cause to be filed) such
tax returns relating to the Trust (including a partnership information return,
IRS Form 1065), if there is not more than one
17
beneficial owner of an equity interest in the Trust for tax purposes, and make
such elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization either a disregarded entity or as a
partnership for federal income tax purposes (as appropriate), (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 5.02(c) with respect to income or distributions to
Certificateholders. The 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 if so directed in writing by the Administrator. The
Owner Trustee shall not make the election provided under Section 754 of the
Code. The parties to this Agreement agree and acknowledge that the
Administrator shall perform the duties and obligations of the Owner Trustee
under this Section 5.05 in accordance with the Administration Agreement.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign on behalf of the Trust the tax
returns of the Trust, if any, unless applicable law requires a
Certificateholder to sign such documents.
(b) Regions Bank shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as
the Administrator recommends with respect to the Basic Documents.
Section 6.02. General Duties. It shall be the duty of the Owner Trustee:
(a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Basic
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Agreement; provided, however, that
notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement; and
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(b) to cooperate with the Administrator in carrying out the
Administrator's obligation to qualify and preserve the Trust's qualification
to do business in each jurisdiction, if any, in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Receivables and any other instrument and agreement
included in the Trust Estate; provided that the Owner Trustee may rely on
advice of counsel with respect to such obligation.
Section 6.03. Action upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the
Basic Documents, the Certificateholders may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be exercised
at any time by written instruction of the Certificateholders pursuant to
Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any Basic Document or is otherwise contrary
to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction of
such Certificateholders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the
Owner Trustee shall not be liable, on account of such action or inaction, to
any Person. If the Owner Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this
19
Agreement or the Basic Documents, as it shall deem to be in the best interests
of the Certificateholders, and shall have no liability to any Person for such
action or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.03; and no
implied duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or Lien granted to it hereunder or to prepare or file
any Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Basic Document. The Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Trust Estate that result
from actions by, or claims against, the Owner Trustee in its individual
capacity that are not related to the ownership or the administration of the
Trust Estate.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Basic Documents and
(iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
that, to the actual knowledge of the Owner Trustee, (a) is inconsistent with
the purposes of the Trust set forth in Section 2.03 or (b) would result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take any action that
would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate upon the terms of the Basic Documents
and this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own willful misconduct or gross negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
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(a) The Owner Trustee shall not be liable for any error of judgment
made by a Trust Officer of the Owner Trustee;
(b) The Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificateholder;
(c) No provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value
or validity of any of the Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Trust Certificates, and the 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 or
expressly agreed to in the other Basic Documents;
(f) The Owner Trustee shall not be responsible for monitoring the
performance of, and shall not be liable for the default or misconduct of the
Administrator, the Depositor, the Master Servicer , the Indenture Trustee or
any other Person under any of the Basic Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Trust under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Depositor or the Master Servicer
under the Sale and Servicing Agreement; and
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Basic Document, at the request, order or direction of
any of the Certificateholders, unless such Certificateholders have offered to
the Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than its
gross negligence or willful misconduct in the performance of any such act.
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Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing
in good standing under the laws of the State of Delaware. 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 the Basic Documents,
and this Agreement and the Basic Documents will be executed and delivered
by one of its officers who is duly authorized to execute and deliver this
Agreement and the Basic Documents on its behalf.
(c) Neither the execution or 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 the Owner Trustee or any
judgment or order binding on it, or constitute any default under its
charter documents or bylaws 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 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or
omitted reasonably and in good faith by it in
22
accordance with the opinion or advice of any such counsel, accountants or
other such Persons.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, [OWNER TRUSTEE] acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any Basic Document shall look
only to the Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or for
Receivables. The recitals contained herein and in the Trust Certificates
(other than the signature and countersignature of the Owner Trustee on the
Trust Certificates) shall be taken as the statements of the Depositor, and the
Owner Trustee assumes no responsibility for the correctness thereof. Except as
set forth in Section 7.03, the Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement, of any Basic Document or of the
Trust Certificates (other than the signature and countersignature of the Owner
Trustee on the Trust Certificates) or the Notes, or of any Receivable or
related documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any Receivable or the perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Receivable on any
computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the
compliance by the Depositor or the Master 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 the
Administrator, the Indenture Trustee or the Master Servicer or any subservicer
taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Master Servicer in banking
transactions with the same rights as it would have if it were not Owner
Trustee.
Section 7.08. Doing Business in Other Jurisdictions. Notwithstanding
anything contained herein to the contrary, the Owner Trustee shall not be
required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action will (i) require the consent or approval
or authorization or order of, or the giving of notice to, or the registration
with, or the taking of any other action in required by, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the Owner
Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the
23
transactions by the Owner Trustee contemplated hereby. The Owner Trustee shall
be entitled to obtain advice of counsel (which advice shall be an expense of
the Administrator under Section 8.01 of this Agreement) to determine whether
any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding
sentence. In the event that said counsel advises the Owner Trustee that such
action will result in such consequences, the Owner Trustee will appoint an
additional trustee pursuant to Section 10.05 hereof to proceed with such
action.
Section 7.09. Paying Agent; Authenticating Agent. The rights and
protections afforded to the Owner Trustee pursuant to Article VII and Sections
8.02, 10.02, and 10.03 shall also be afforded to the Paying Agent,
authenticating agent and Certificate Registrar.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Administrator shall
pay to the Owner Trustee as compensation for its services hereunder such fees
as have been separately agreed upon before the date hereof between the Master
Servicer and the Owner Trustee, and the Administrator shall reimburse the
Owner Trustee for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder and under the Basic Documents.
Section 8.02. Indemnification. The Administrator shall be liable as
primary obligor for, and shall indemnify the 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 the Owner Trustee or any Indemnified
Party in any way relating to or arising out of this Agreement, the Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Owner Trustee hereunder, except only that the
Administrator shall not be liable for or required to indemnify an Indemnified
Party from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01. The indemnities contained in
this Section shall survive the resignation or termination of the Owner Trustee
or the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Indemnified Party's choice of legal counsel shall be subject to the approval
of the Administrator, which approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid pursuant to
this Article VIII shall be payable solely in the priority set forth in Section
5.06(b) of the Sale and Servicing Agreement and shall be deemed not to be a
part of the Trust Estate immediately after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Section 5.05 and Article VIII) and the
Trust shall terminate and be of no further force or effect upon the final
distribution by the Owner Trustee of all moneys or other property or proceeds
of the Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement and Article V; provided, however, that in no event
shall the Trust created by this Agreement continue beyond the expiration of 21
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the Court of St. ▇▇▇▇▇, living on the date of
this Agreement. The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not (i) operate to terminate this Agreement or
the Trust, (ii) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust Estate
or (iii) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) This Agreement and the Trust are irrevocable. Except as provided
in Section 9.01(a) and in this Section 9.01(b), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate this Trust or this
Agreement. Each of the Depositor, the Certificateholders and the Owner Trustee
acknowledges that the Indenture Trustee, on behalf of the Noteholders, is a
third-part beneficiary of this Agreement. For so long as the Notes are
outstanding, neither the Trust nor this Agreement shall be revoked without the
consent of the Indenture Trustee. Each of the Depositor, the
Certificateholders and the Owner Trustee acknowledges that the Indenture
Trustee, as agent of the Noteholders, maintains a legitimate interest in
ensuring that the Trust is not revoked prior to the fulfillment of the Trust
purposes. In no event may this Agreement be amended without the consent of the
Indenture Trustee if the effect of such amendment is the revocation or
termination of this Trust other than in accordance with this Section 9.01.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within
five Business Days of receipt of notice of such termination from the Master
Servicer given pursuant to Section 9.01 of the Sale and Servicing Agreement,
stating (i) the Payment Date upon or with respect to which final payment of
the Trust Certificates shall be made upon presentation and surrender of the
Trust Certificates at the office of the Paying Agent therein designated, (ii)
the amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon presentation and surrender of the Trust Certificates at the office of the
Paying Agent therein specified. The Owner Trustee shall give such notice to
the Certificate Registrar (if other than the Owner Trustee) and the Paying
Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Trust Certificates, the Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Payment Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the Trust after exhaustion of
25
such remedies shall be distributed by the Owner Trustee to the holder of the
Residual Interest, subject to applicable escheat laws.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation which is not an affiliate of the
Depositor (but may have normal banking relationships with the Depositor and
its affiliates) organized and doing business under the laws of the State of
Delaware; authorized to exercise corporate trust powers which shall be
eligible to act as a trustee under Section 310(a) of the Trust Indenture Act;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent that has) time deposits that are rated at least [A-1] by
[RATING AGENCY] and [P-1] by [RATING AGENCY], or which is otherwise acceptable
to each Rating Agency. If such corporation shall publish reports of condition
at least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such 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 the Owner Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator, the Indenture Trustee and
the Rating Agencies. Upon receiving such notice of resignation, the
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.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the 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
shall pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until
26
acceptance of appointment by the successor Owner Trustee pursuant to Section
10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee.
The Administrator shall provide notice of such resignation or removal of the
Owner Trustee to each Rating Agency.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.01 or 10.02 shall execute, acknowledge and
deliver to the 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 the
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 confirming in the successor Owner Trustee all such
rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Master Servicer, the Indenture Trustee, the
Noteholders and the Rating Agencies. If the Administrator shall fail to mail
such notice within 10 days after acceptance of such appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice
to be mailed at the expense of the Administrator.
Any successor Owner Trustee appointed pursuant to this Section 10.03
shall promptly file an amendment to the Certificate of Trust with the
Secretary of State identifying the name and principal place of business of
such successor Owner Trustee in the State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 10.01; and
provided further, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency; and provided further, that such successor
Owner Trustee shall file an amendment to the Certificate of Trust as described
in Section 10.03.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the
27
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Administrator and Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or as separate trustee or separate trustees,
of all or any part of the Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust Estate or any part thereof and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Administrator and the Owner Trustee may consider necessary
or desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the 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 Owner Trustee pursuant to Section 10.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) All rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) The Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the
28
extent permitted by law, without the appointment of a new or successor
co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to each
Rating Agency, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, 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, however, that such action shall not, as
evidenced by the satisfaction of the Rating Agency Condition with respect to
such amendment, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to each Rating Agency, with
the consent of the Holders (as defined in the Indenture) of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes and 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, however, 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 then-outstanding
Notes and Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
Rating Agency.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and any other consents of 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 the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
29
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the 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. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment that affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
In connection with the execution of any amendment to this Trust
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
Section 11.02. No Legal Title to Trust Estate in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the 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 Certificateholders to and in
their ownership interest in the 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 Trust Estate.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholders, the Administrator and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 11.04. 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
by the intended recipient or three Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee), if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor,
addressed to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party. A copy of any such notice shall also be mailed to
the Master Servicer, addressed to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: [ ].
(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 Certificateholder 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 such
Certificateholder receives such notice.
30
Section 11.05. 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 11.06. 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 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of
the Depositor and its permitted assignees, the Owner Trustee and its
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 11.08. Covenants of the Depositor. The Depositor will not at any
time institute against the Trust any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or
any of the other Basic Documents.
Section 11.09. No Petition. The Owner Trustee, by entering into this
Agreement, each Certificateholder, by accepting a Trust Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust or join in any institution against the
Depositor or the Trust of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, this Agreement or any of the
Basic Documents.
Section 11.10. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Trust Certificate represents a beneficial
interest in the Trust only and does not represent an interest in or an
obligation of the Depositor, the Master Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Trust Certificates or the Basic
Documents.
Section 11.11. 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 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 11.13. Trust Certificate Transfer Restrictions. The Trust
Certificates may not be
31
acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I 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 or otherwise under ERISA (each, a "Benefit Plan"). By accepting
and holding a Trust Certificate, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
32
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.
REGIONS ACCEPTANCE LLC,
as Depositor
By:
------------------------------------------
Name:
Title:
[OWNER TRUSTEE],
as Owner Trustee
By:
-----------------------------------------
Name:
Title:
33
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE IS SUBORDINATE TO THE NOTES, AS SET FORTH IN THE SALE
AND SERVICING AGREEMENT.
UNLESS THIS TRUST 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 TRUST
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 TRUST CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (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 TRUST CERTIFICATE, THE HOLDER THEREOF SHALL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THIS CERTIFICATE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST
IN REGIONS ACCEPTANCE LLC.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY GOVERNMENTAL AGENCY.
A-1
NUMBER $[_______]
INITIAL CLASS [C] CERTIFICATE BALANCE: $[________]
Pass-Through Rate: [____]%
R-1
CUSIP NO. [___________]
ISIN NO. US [___________]
REGIONS AUTO RECEIVABLES TRUST 200_-_
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which consists of: (1) the Receivables and all moneys received
thereon on or after the Cutoff Date; (2) the security interests in the
Financed Vehicles and any accessions thereto granted by Obligors pursuant to
the Receivables and any other interest of the Depositor in such Financed
Vehicles; (3) any Liquidation Proceeds and any other proceeds with respect to
the Receivables from claims on any physical damage, credit life or disability
insurance policies covering the Financed Vehicles or the related Obligors,
including any vendor's single interest or other collateral protection
insurance policy; (4) any property that shall have secured a Receivable and
shall have been acquired by or on behalf of the Depositor, the Master Servicer
or the Trust; (5) all documents and other items contained in the Receivable
Files; (6) all of the Depositor's rights (but not its obligations) under the
Receivables Purchase Agreement; (7) all right, title and interest in all funds
on deposit from time to time in the Trust Accounts and the Certificate
Distribution Account and in all investments therein and proceeds thereof
(including all Investment Earnings thereon); (8) any proceeds from any
Receivable repurchased by a Dealer pursuant to a Dealer Agreement; and (9) the
proceeds of any and all of the foregoing.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION OF
REGIONS ACCEPTANCE LLC, [INDENTURE TRUSTEE] OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
[____________] DOLLAR nonassessable, fully paid, fractional undivided interest
in Regions Auto Receivables Trust 200_-_ (the "Trust"), formed by Regions
Acceptance LLC, a limited liability company (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated as of [___]
(as amended or supplemented from time to time, the "Trust Agreement"), between
the Depositor and [OWNER TRUSTEE], as owner trustee (the "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 the Trust Agreement or the Sale and
Servicing Agreement dated as of [___] (as amended and supplemented from time
to time, the "Sale and Servicing Agreement"), among the Trust, the Depositor,
Regions Bank, as
A-2
Master Servicer, Seller, Custodian and Administrator, and [INDENTURE TRUSTEE],
as Indenture Trustee, as applicable.
This Trust Certificate is one of the duly authorized Trust
Certificates designated as "Asset Backed Certificates" (herein called the
"Trust Certificates"). Also issued under an Indenture dated as of [___] (the
"Indenture"), between the Trust and [INDENTURE TRUSTEE], as indenture trustee,
are the five classes of Notes designated as "[___]% Asset Backed Notes, Class
[A-1]," "[___]% Asset Backed Notes, Class [A-2]," "[___]% Asset Backed Notes,
Class [A-3]" and "[___]% Asset Backed Notes, Class [A-4]" (collectively, the
"Class [A] Notes") and "[___]% Asset Backed Notes, Class [B]" (the "Class [B]
Notes" and together with the Class [A] Notes, the "Notes"). This Trust
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
Trust Certificate by virtue of its acceptance hereof assents and by which such
Certificateholder is bound. The property of the Trust consists of the
Receivables and all monies received thereon after [___], in the case of
Receivables originated on or before [___] and all monies received thereon
after the date of origination in the case of Receivables originated after
[___]), security interests in the related Financed Vehicles, certain bank
accounts and the proceeds thereof, proceeds from claims on certain insurance
policies and certain other rights under the Trust Agreement and the Sale and
Servicing Agreement, [for each Receivable with GAP protection in effect, the
amount of any remaining balance that becomes cancelable thereunder in
accordance with the terms of such protection set forth in such Receivable,]
and all proceeds of the foregoing. The rights of the Certificateholders are
subordinate to the rights of the Noteholders, as set forth in the Sale and
Servicing Agreement.
Under the Trust Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business
Day (each, a "Payment Date"), commencing on [___], to the Person in whose name
this Trust Certificate is registered on the last day of the immediately
preceding month (the "Record Date"), such Certificateholder's fractional
undivided interest in the amount to be distributed to Certificateholders on
such Payment Date.
The Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinate to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Depositor, the Master Servicer and the
Certificateholders that at such time as there is more than one holder of an
equity interest including any Certificates in the Trust, for purposes of
federal income, state and local income and single business tax and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholders will be treated as partners in that partnership. A
Certificateholder, by its acceptance of a Trust Certificate, agrees to so
treat, and to take no action inconsistent with such treatment of, the Trust
for such tax purposes.
Each Certificateholder, by its acceptance of a Trust Certificate,
agrees to treat, and to take no action inconsistent with the treatment of, the
Trust Certificates for such tax purposes as partnership interests in the
Trust.
A-3
A Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time
institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust 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 Trust Certificates, the Notes, the Trust
Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in
the Trust Agreement by the Owner Trustee or Paying Agent by wire transfer or
check mailed to the Certificateholder of record in the Certificate Register
without the presentation or surrender of this Trust Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement
and notwithstanding the above, the final distribution on this Trust
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this Trust
Certificate at the office or agency designated for that purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust 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 TRUST 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.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Trust Certificate to be duly
executed.
REGIONS AUTO RECEIVABLES TRUST 200_-_
By: [OWNER TRUSTEE],
not in its individual capacity but
solely as Owner Trustee
Dated: By:
--------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned
Trust Agreement.
[OWNER TRUSTEE], [OWNER TRUSTEE],
as Owner Trustee or as Owner Trustee
By: [AUTHENTICATING AGENT], as
Authenticating Agent
By:
----------------------------
Authorizing Agent
By: -------------------------------
Authorizing Agent
A-5
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Owner Trustee or any
affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Trust Certificate is
not guaranteed by any governmental agency or instrumentality and is limited in
right of payment to certain collections and recoveries with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Sale and Servicing Agreement. A copy of each of the Sale and
Servicing Agreement and the Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of Certificateholders under the
Trust Agreement at any time by the Depositor and the Owner Trustee with the
consent of the Holders of the Trust Certificates and the Notes, each voting as
a class, evidencing not less than a majority of the Certificate Balance and
the outstanding principal balance of the Notes of each class. Any such consent
by the Holder of this Trust Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Trust Certificate and of any
Trust Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of
the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in
the Certificate Register upon surrender of this Trust Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar designated by the Owner Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Trust Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is [NAME], [LOCATION].
Except as provided in the Trust Agreement, the Trust Certificates are
issuable only as registered Trust Certificates without coupons in
denominations of $1,000,000 and in integral multiples of $1,000 in excess
thereof; provided, however, that a single Trust Certificate may be issued in
such denomination as required to include any residual amount. As provided in
the Trust Agreement and subject to certain limitations therein set forth,
Trust Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Certificateholder surrendering the same. No service charge will be made for
any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
A-6
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Trust Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of
all property held as part of the Trust Estate. The Master Servicer of the
Receivables may at its option purchase the Trust Estate at a price specified
in the Sale and Servicing Agreement, and such purchase of the Receivables and
other property of the Trust will effect early retirement of the Trust
Certificates; provided, however, that such right of purchase is exercisable
only as of the last day of any Collection Period as of which the Pool Balance
is less than or equal to 10% of the Original Pool Balance.
The Trust Certificates may not be acquired by (a) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions
of Title I 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 or which uses plan assets to acquire Trust
Certificates (each, a "Benefit Plan"). By accepting and holding this Trust
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
A-7
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 Trust Certificate, and all rights thereunder, and
hereby irrevocably constitutes and appoints ____________,
attorney, to transfer said Trust 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 Trust
Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature
must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the
Certificate Registrar, which requirements include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by
the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.