Exhibit 4.2
EXECUTION COPY
AMENDED AND RESTATED TRUST AGREEMENT
between
SSB VEHICLE SECURITIES INC.,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April 1, 1998
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms . . . . . . . . . . . . . . . . . . 2
Section 1.02. Other Definitional Provisions . . . . . . . . . . . . 5
ARTICLE II
ORGANIZATION
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.02. Office . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.03. Purposes and Powers . . . . . . . . . . . . . . . . . 6
Section 2.04. Appointment of Owner Trustee . . . . . . . . . . . . 7
Section 2.05. Initial Capital Contribution of Trust Estate . . . . 7
Section 2.06. Declaration of Trust . . . . . . . . . . . . . . . . 7
Section 2.07. (Reserved) . . . . . . . . . . . . . . . . . . . . . 7
Section 2.08. Title to Trust Property . . . . . . . . . . . . . . . 7
Section 2.09. Situs of Trust . . . . . . . . . . . . . . . . . . . 7
Section 2.10. Representations, Warranties and Covenants of the
Depositor . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.11. Federal Income Tax Allocations . . . . . . . . . . . 9
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership . . . . . . . . . . . . . . . . . . 10
Section 3.02. The Trust Certificates . . . . . . . . . . . . . . . 10
Section 3.03. Execution, Authentication and Delivery of Trust
Certificates . . . . . . . . . . . . . . . . . . . . 10
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates . . . . . . . . . . . . . . . . . . . . 10
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates . . . . . . . . . . . . . . . . . . . . 13
Section 3.06. Persons Deemed Owners . . . . . . . . . . . . . . . . 13
Section 3.07. Access to List of Certificateholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.08. Maintenance of Office or Agency . . . . . . . . . . . 14
Section 3.09. Appointment of Paying Agent . . . . . . . . . . . . . 14
Section 3.10. Definitive Trust Certificates . . . . . . . . . . . . 15
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice with Respect to Certain Matters . . . . 16
Section 4.02. Action by Certificateholders with Respect to
Certain Matters . . . . . . . . . . . . . . . . . . . 18
Section 4.03. Action by Certificateholders with Respect to
Bankruptcy . . . . . . . . . . . . . . . . . . . . . 18
Section 4.04. Restrictions on Certificateholders' Power . . . . . . 18
Section 4.05. Majority Control . . . . . . . . . . . . . . . . . . 18
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account . . . . . . . . . . . 19
Section 5.02. Application of Trust Funds . . . . . . . . . . . . . 19
Section 5.03. Method of Payment . . . . . . . . . . . . . . . . . . 20
Section 5.04. No Segregation of Moneys; No Interest. . . . . . . . 20
Section 5.05. Accounting and Reports to Certificateholders, the
Internal Revenue Service and Others . . . . . . . . . 20
Section 5.06. Signature on Returns; Tax Matters Partner . . . . . . 21
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority . . . . . . . . . . . . . . . . . . 22
Section 6.02. General Duties . . . . . . . . . . . . . . . . . . . 22
Section 6.03. Action upon Instruction . . . . . . . . . . . . . . . 22
Section 6.04. No Duties Except as Specified in this Agreement or
in Instructions . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.05. No Action Except Under Specified Documents or
Instructions . . . . . . . . . . . . . . . . . . . . 24
Section 6.06. Restrictions . . . . . . . . . . . . . . . . . . . . 24
Section 6.07. Administrative Duties . . . . . . . . . . . . . . . . 24
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties . . . . . . . . . . . 29
Section 7.02. Furnishing of Documents . . . . . . . . . . . . . . . 30
Section 7.03. Representations and Warranties . . . . . . . . . . . 30
Section 7.04. Reliance; Advice of Counsel . . . . . . . . . . . . . 31
Section 7.05. Not Acting in Individual Capacity . . . . . . . . . . 31
Section 7.06. Owner Trustee Not Liable for Trust Certificates or
for Receivables . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.07. Owner Trustee May Own Trust Certificates and
Notes . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 7.08. Doing Business in Other Jurisdictions . . . . . . . . 32
Section 7.09. Owner Trustee as Paying Agent . . . . . . . . . . . . 33
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses . . . . . . . . . . 34
Section 8.02. Indemnification . . . . . . . . . . . . . . . . . . . 34
Section 8.03. Payments to the Owner Trustee . . . . . . . . . . . . 34
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement . . . . . . . . . . . 35
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee . . . . . 37
Section 10.02. Resignation or Removal of Owner Trustee . . . . . . 37
Section 10.03. Successor Owner Trustee . . . . . . . . . . . . . . 38
Section 10.04. Merger or Consolidation of Owner Trustee . . . . . . 38
Section 10.05. Appointment of Co-Trustee or Separate Trustee . . . 39
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments . . . . . . . . . . . . . 41
Section 11.02. No Legal Title to Trust Estate in
Certificateholders . . . . . . . . . . . . . . . . . 42
Section 11.03. Limitations on Rights of Others . . . . . . . . . . 42
Section 11.04. Notices . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.05. Severability . . . . . . . . . . . . . . . . . . . . 43
Section 11.06. Separate Counterparts . . . . . . . . . . . . . . . 43
Section 11.07. Successors and Assigns . . . . . . . . . . . . . . . 43
Section 11.08. Covenants of the Depositor . . . . . . . . . . . . . 43
Section 11.09. No Petition . . . . . . . . . . . . . . . . . . . . 43
Section 11.10. No Recourse . . . . . . . . . . . . . . . . . . . . 43
Section 11.11. Headings . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . 44
Section 11.13. Trust Certificate Transfer Restrictions . . . . . . 44
Section 11.14. Third Party Beneficiary. . . . . . . . . . . . . . . 44
Exhibit A Form of Trust Certificate . . . . . . . . . . . . . . A-1
Exhibit B Form of Certificate of Trust . . . . . . . . . . . . B-1
Exhibit C Form of Transferor Certificate . . . . . . . . . . . C-1
Exhibit D Form of Investment Letter . . . . . . . . . . . . . . D-1
This TRUST AGREEMENT, dated as of April 1, 1998, is between SSB VEHICLE
SECURITIES INC., a Delaware corporation, as depositor (the "Depositor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, 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
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Agreement, the following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Owner Trust Administration
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Agreement dated as of April 1, 1998, between the Trust and The Chase
Manhattan Bank, as Indenture Trustee and as Administrator.
"Agreement" shall mean this Trust Agreement, as the same may be
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amended and supplemented from time to time.
"Benefit Plan" shall have the meaning assigned to such term in
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Section 11.13.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
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Delaware Code, 12 Del. Code Section 3801 et seq., as the same may be
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amended from time to time.
"Certificate Balance" shall mean on any date of determination, the
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Pool Balance minus the Note Balance.
"Certificate Distribution Account" shall have the meaning assigned to
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such term in Section 5.01.
"Certificate of Trust" shall mean the Certificate of Trust
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substantially in the form of Exhibit B filed for the Trust pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
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register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificate Trust" means that certain trust established pursuant to
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the trust agreement, dated as of April 1, 1998, between Wilmington Trust
Company, a Delaware banking corporation, as trustee thereunder, and the
Depositor.
"Certificateholder" or "Holder" shall mean a Person in whose name a
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Trust Certificate is registered, and shall initially be the Certificate
Trust.
"Class A-1 Notes" shall mean the 5.90% Asset Backed Notes, Class A-1,
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issued pursuant to the Indenture.
"Class A-2 Notes" shall mean the 6.05% Asset Backed Notes, Class A-2,
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issued pursuant to the Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
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Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
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Trustee, the principal corporate trust office of the Owner Trustee located at
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
0001, Attention: Corporate Trust Administration, 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.
"Depositor" shall mean SSB Vehicle Securities Inc., and its
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successors, in its capacity as depositor hereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
"Expenses" shall have the meaning assigned to such term in
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Section 8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
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Section 8.02.
"Indenture" shall mean the Indenture, dated as of April 1, 1998
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between the Trust and The Chase Manhattan Bank, as Indenture Trustee.
"Initial Certificate Balance" shall mean $44,850,000.
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"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
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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
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appointed pursuant to Section 3.09 and shall initially be Wilmington Trust
Company.
"Person" shall mean any individual, corporation, estate, partnership,
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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.
"Policy" shall have the meaning assigned to such term in the Sale and
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Servicing Agreement.
"Rated Entity" shall mean a Person the long-term unsecured debt
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obligations of which are rated within the investment grade categories of any
Rating Agency.
"Record Date" shall mean the last day of the month preceding such
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Distribution Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
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Agreement dated as of April 1, 1998, among the Trust, as issuer, the
Depositor, HMFC, as seller and servicer, and The Chase Manhattan Bank, as
indenture trustee, custodian, administrator and backup servicer, as the same
may be amended or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State
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of Delaware.
"SPV" shall mean a Person that, based upon an Opinion of Counsel of
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the Depositor (taking into account such counsel's knowledge of similarly
structured entities that have been included in rated securitizations and on
standards that have been accepted for evaluating such entities), is regarded
as "bankruptcy remote."
"Treasury Regulations" shall mean regulations, including proposed or
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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.
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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
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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 the Policy
for the Noteholders and 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.
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(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.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as
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"Hyundai Auto Receivables Trust 1998-A," 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
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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, the Note Insurer and the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to
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engage in the following activities:
(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;
(b) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase the Initial Receivables, to fund the
Pre-Funding Account, Yield Maintenance Account, Reserve Account and the
Capitalized Interest 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, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. The
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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.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
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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 the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. It is
the intention of the parties hereto that the Notes will be characterized as
indebtedness of the Trust, and that the Certificate Trust, as the sole
initial Certificateholder and owner of the entire residual interest in the
Trust, will treat the Trust as an agent of the Certificate Trust and not as a
separate tax entity for federal income tax and state income and franchise tax
purposes. The parties agree that, unless otherwise required by appropriate
tax authorities, the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the foregoing
characterization of the Trust for such tax purposes. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Business Trust Statute with respect to accomplishing
the purposes of the Trust.
Section 2.07. (Reserved).
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Section 2.08. Title to Trust Property. Subject to the Indenture,
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legal title to all the Trust Estate shall be vested at all times in the Trust
as a separate legal entity except where applicable law in any jurisdiction
requires title to any part of the Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner
Trustee, a co-trustee or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and
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administered in the State of Delaware. 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
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Depositor. The Depositor hereby represents and warrants to the Owner
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Trustee that:
(a) The Depositor is duly organized and validly existing as a
corporation 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
corporation 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 corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by the Depositor by all
necessary corporate 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 certificate of incorporation or bylaws 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
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Trust 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 among the Certificateholders as of the first day
following the Record Date, in proportion to their percentage ownership
interest of Trust Certificates on the Record Date.
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 among the
Certificateholders as of the first Record Date following the end of such
month in proportion to their percentage ownership interest of Trust
Certificates on such Record Date. The Issuer 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
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the contribution by the Depositor pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Depositor shall be the sole
beneficiary of the Trust.
Section 3.02. The Trust Certificates. No Trust Certificate shall be
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issued except for the Trust Certificate held by the Certificate Trust without
the prior written consent of the Note Insurer. The Trust Certificates shall
be issued in minimum denominations of $20,000 and in integral multiples of
$1,000 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 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
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Certificates. On the Closing Date, the Owner Trustee shall cause the
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Trust Certificates in an aggregate principal amount equal to the Initial
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
Trustee on behalf of the Trust, without further action thereof, 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 The Chase
Manhattan Bank, 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
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Certificates. The Certificate Registrar shall keep or cause to be kept,
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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. Wilmington Trust Company shall be the initial Certificate
Registrar.
The Trust Certificates have not been and will not be registered under
the Securities Act and will not be listed on any exchange. No transfer of a
Trust Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
said Act and such state securities laws. In the event that a transfer is to
be made in reliance upon an exemption from the Securities Act and state
securities laws, in order to assure compliance with the Securities Act and
such laws, the Holder desiring to effect such transfer and such Holder's
prospective transferee shall each certify to the Owner Trustee or the
Certificate Registrar and the Depositor in writing the facts surrounding the
transfer in substantially the forms set forth in Exhibit C and Exhibit D (the
"Investment Letter"). Except in the case of a transfer as to which the
proposed transferee has provided an Investment Letter with respect to a Rule
144A transaction, there shall also be delivered to the Owner Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Securities Act and state securities laws, which Opinion of Counsel
shall not be an expense of the Trust, the Owner Trustee or the Indenture
Trustee (unless it is the transferee from whom such opinion is to be
obtained) or of the Depositor or HMFC; provided, that such Opinion of Counsel
in respect of the applicable state securities laws may be a memorandum of law
rather than an opinion if such counsel is not licensed in the applicable
jurisdiction. The Owner Trustee shall provide to any Holder of a Trust
Certificate and any prospective transferee designated by any such Holder
information regarding the Trust Certificates and the Receivables and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Trust
Certificate without registration thereof under the Securities Act pursuant to
the registration exemption provided by Rule 144A. Each Holder of a Trust
Certificate desiring to effect such a transfer shall, and does hereby agree
to, indemnify the Trust, the Owner Trustee, the Indenture Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with federal and state securities laws.
No transfer of a Trust Certificate shall be made to any Person unless
the Note Insurer has given its prior written consent to the transfer and the
Owner Trustee has received (a) a certificate in the form of paragraph 3 to
the Investment Letter attached hereto as Exhibit D from such Person to the
effect that such Person is not a Benefit Plan, (b) an Opinion of Counsel
satisfactory to the Owner Trustee and the Depositor to the effect that the
purchase and holding of such Trust Certificate will not constitute or result
in the assets of the Trust being deemed to be "plan assets" subject to the
prohibited transactions provisions of ERISA or Section 4975 of the Code and
will not subject the Owner Trustee, the Indenture Trustee or the Depositor to
any obligation in addition to those undertaken in the Basic Documents or (c)
if such Person is an insurance company, a representation that such Person is
an insurance company that is purchasing such Trust Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-
60")) and that the purchase and holding of such Trust Certificates and any
deemed extension of credit from a Certificateholder which is a party in
interest to a Benefit Plan, the assets of which are held by such "insurance
company" are covered under PTCE 95-60; provided, however, that the Owner
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Owner
Trustee has rendered an Opinion of Counsel to the effect that the purchase
and holding of a Trust Certificate by a Benefit Plan or a Person that is
purchasing or holding such a Trust Certificate with the assets of a Benefit
Plan will not constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code.
No transfer, pledge or encumbrance of Trust Certificates shall be made
to any Person unless such Person is a Rated Entity, an SPV or a business
trust established under the Business Trust Statute 12 Del. C. Section 3801 et
seq. or Salomon Brothers Inc or an Affiliate thereof
-- ---
acceptable to the Note Insurer. In addition, no transfer of Trust
Certificates shall be made to any Person unless the Owner Trustee has
received an Opinion of Counsel satisfactory to the Owner Trustee, the
Depositor and the Note Insurer to the effect that such transfer will not
cause the Trust to be treated as an association or publicly traded
partnership taxable as a corporation for federal income tax purposes and that
such transfer will not result in any materially adverse federal income tax
consequences to the Noteholders.
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 The Chase Manhattan
Bank 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
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.
Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be responsible for ascertaining whether any transfer
complies with the registration provisions or exemptions from the Securities
Act, the Securities Act of 1934, as amended, applicable state securities law
or the Investment Company Act of 1940, as amended; provided, however, that if
a certificate or opinion is specifically
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required to be delivered to the Owner Trustee by a purchaser or transferee of
a Trust Certificate, the Owner Trustee shall be under a duty to examine the
same to determine whether it conforms to the requirements of this Trust
Agreement and shall promptly notify the party delivering the same if such
certificate does not so conform.
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 bona fide purchaser, the Owner Trustee on
behalf of the Trust shall execute and the Owner Trustee or The Chase
Manhattan Bank, 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 Servicer and the Depositor, within 15 days after receipt by the Owner
Trustee of a written request therefor from the Servicer or the Depositor, a
list, in such form as the Servicer or the Depositor may reasonably require,
of the names and addresses of the Certificateholders as of the most recent
Record Date. 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.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee
-------------------------------
shall maintain 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 The Chase
Manhattan Bank 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. The Paying Agent initially shall be Wilmington Trust Company, and
any co-paying agent chosen by Wilmington Trust Company. Wilmington Trust
Company shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee. In the event that Wilmington Trust Company
shall no longer be the Paying Agent, 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 by the Owner Trustee 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, 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. Definitive Trust Certificates. The Trust
-----------------------------
Certificates, upon original issuance, will be issued in the form of a
typewritten Trust Certificate or Trust Certificates to be delivered to the
related Certificateholders by, or on behalf of, the Trust. Such Trust
Certificate or Trust Certificates shall be registered on the Certificate
Register in the name of the holder thereof. The 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 and the Note Insurer (so long as
no Note Insurer Default shall have occurred and be continuing) in writing of
the proposed action and neither the Note Insurer (so long as no Note Insurer
Default shall have occurred and be continuing) nor the Certificateholders
shall have notified the Owner Trustee in writing prior to the 30th day after
such notice is given that such Certificateholders or the Note Insurer (so
long as no Note Insurer Default shall have occurred and be continuing) have
withheld consent or provided alternative direction (any direction by the
Certificateholders shall require the prior consent of the Note Insurer unless
the Notes are no longer outstanding and the Note Insurer has been paid in
full):
(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 election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(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 or the Note Insurer is
required;
(d) 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 or Note Insurer is not
required and such amendment would materially adversely affect the
interests of the Certificateholders;
(e) 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; or
(f) 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.
(g) the consent to the calling or waiver of any default of any
Basic Document;
(h) the consent to the assignment by the Indenture Trustee or
Servicer of their respective obligations under any Basic Document,
unless permitted in the Basic Documents;
(i) except as provided in Article IX hereof, dissolve, terminate
or liquidate the Trust in whole or in part;
(j) 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;
(k) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the Basic Documents;
(l) do any act that conflicts with any other Basic Document;
(m) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(n) confess a judgment against the Trust;
(o) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
(p) cause the Trust to lend any funds to any entity, unless
permitted in the Basic Documents; or
(q) 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
minutes or other records of all appropriate actions and shall maintain its
office separate from the offices of the Depositor and the Servicer.
The Owner Trustee shall not have the power, except upon the direction of
the Certificateholders with the consent of the Note Insurer, and to the
extent otherwise consistent with the Basic Documents, to (i) remove or
replace the 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 and the Insurance Agreement
remain in effect and no Note Insurer Default exists, 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 (with the consent of the Note
Insurer (so long as no Note Insurer Default shall have occurred and be
continuing)), 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 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 Note Insurer (so
long as no Note Insurer Default shall have occurred and be continuing) 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.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account. The Owner Trustee,
------------------------------
for the benefit of the Certificateholders, shall establish and maintain in
the name of the Trust an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Certificateholders.
The title of the Certificate Distribution Account shall be "Hyundai Auto
Receivables Trust 1998-A: Certificate Distribution Account for the benefit
of the Certificateholders."
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof. Except as otherwise expressly provided herein,
the Certificate 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 Distribution Account ceases to be an Eligible
Deposit Account, the Owner Trustee (or the Depositor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the
Owner Trustee or an affiliate thereof) 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 Distribution Account as an Eligible
Deposit Account and shall transfer any cash or any investments to such new
Certificate Distribution Account.
Section 5.02. Application of Trust Funds.
--------------------------
(a) On each Distribution Date, the Owner Trustee will distribute to
Certificateholders, on a pro rata basis, amounts deposited in the Certificate
Distribution Account pursuant to Section 5.06 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement or statements provided to the Owner Trustee
by the Servicer pursuant to Section 5.13 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by 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 may in its sole discretion
withhold such amounts in accordance with this paragraph (c).
Any Holder of a Trust Certificate which 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, (b) (i) provide the
Owner Trustee with Internal Revenue Service form 1001, 4224, 8709 or W-8, as
appropriate, or (ii) notify the Owner Trustee 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 should subsequent
circumstances arise affecting the information provided the Owner Trustee in
clauses (a) and (b) above. The Owner Trustee 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 harmless against all
claims or liability of any kind arising in connection with or related to the
Owner Trustee's reliance upon any documents, forms or information provided by
any Holder to the Owner Trustee.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
-----------------
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding
Record Date either 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 appropriate written instructions at
least five Business Days prior to such Distribution 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. No Segregation of Moneys; No Interest. Subject to
-------------------------------------
Sections 5.01 and 5.02, moneys received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Sale and Servicing Agreement, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
Section 5.05. Accounting and Reports to Certificateholders, the
-------------------------------------------------
Internal Revenue Service and Others. The Owner Trustee shall (a) 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) 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 as a
partnership for federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Section 5.02(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.
The Owner Trustee shall not make the election provided under Section 754 of
the Code.
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) The (Depositor) 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
Agreements 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. 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.
(b) to qualify and preserve the Issuer'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 and the Note Insurer requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written instruction of the
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 requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Owner Trustee shall not
have received appropriate instruction within 10 days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the
best interests of the 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 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 (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for federal income
tax purposes. The Certificateholders shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
Section 6.07. Administrative Duties.
---------------------
(a) The Owner Trustee shall prepare or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust
to prepare, file or deliver pursuant to the Indenture and are not the
responsibility of the Trustee, the Depositor, the Administrator or the
Servicer. In furtherance of the foregoing, the Owner Trustee shall prepare
or cause the preparation by others of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust
to prepare, file or deliver pursuant to the Indenture with respect to the
following matters under the Indenture (parenthetical section references are
to sections of the Indenture):
(i) the delivery for cancellation of any Note delivered to the
Issuer for cancellation, and the direction to destroy or return such
Note (Section 2.09);
(ii) the obtaining and preservation of the Issuer's qualification
to do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and
agreement included in the Trust Estate (Section 3.04);
(iii) the preparation of all supplements and amendments to the
Indenture, instruments of further assurance and other instruments and
the taking of such other action as is necessary or advisable to protect
the Trust Estate (other than the preparation and filing of any financing
statements and continuation statements, which shall be an obligation of
the Servicer under the Sale and Servicing Agreement (Section 3.05));
(iv) the delivery of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Trust Estate,
and the annual delivery of the Officer's Certificate and certain other
statements as to compliance with the Indenture (Sections 3.06 and 3.09);
(v) the notification of a Servicer Termination Event under the
Sale and Servicing Agreement and, if such Servicer Termination Event
arises from the failure of the Servicer to perform any of its duties
under the Sale and Servicing Agreement with respect to the Receivables,
the taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(vi) the notification to the Indenture Trustee and the Note
Insurer of (a) the termination of the Servicer and (b) the appointment
of a Successor Servicer (Section 3.07(f));
(vii) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b));
(viii) the duty to take any action as instructed by the
Controlling Party to cause the Servicer to comply with Sections 4.09,
4.10, 4.11 and Article IX of the Sale and Servicing Agreement (Section
3.14);
(ix) the delivery of written notice to the Indenture Trustee, the
Note Insurer and the Rating Agencies of each Event of Default under the
Indenture and each default by the Servicer or the Seller under the Sale
and Servicing Agreement and by the Seller under the Receivables Purchase
Agreement (Section 3.19);
(x) the notification to the Owner Trustee and request of the Owner
Trustee to execute any further instruments and perform any acts
reasonably necessary to carry out more effectively the purpose of the
Indenture (Section 3.20);
(xi) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of an Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(xii) the preparation, obtaining or filing of instruments,
opinions, certificates and other documents (other than the preparation
of UCC amendments, which shall be the responsibility of the Servicer
under the Sale and Servicing Agreement) required for the release of
Collateral (Section 4.04);
(xiii) the delivery to the Indenture Trustee and, if the Note
Insurer is the Controlling Party, the Note Insurer, written notice in
the form of an Officer's Certificate of any event that with the giving
of notice and the lapse of time would become an Event of Default under
clause (iii) of Section 5.01 of the Indenture (Section 5.01);
(xiv) the performance of any lawful action as the Controlling
Party may request to compel or secure the performance and observance by
the Seller or the Servicer, as applicable, of each of their obligations
to the Issuer in the Basic Documents (Section 5.16);
(xv) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(xvi) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instructions necessary in connection with the
resignation or removal of any co-trustee or separate trustee (Sections
6.08 and 6.10);
(xvii) the notification to the Indenture Trustee if and when the
Notes are listed on any stock exchange (Section 7.04);
(xviii) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Trust Estate (Section
8.04 and 8.05);
(xix) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.01, 9.02 and 9.03);
(xx) the duty to furnish the Note Insurer, the Rating Agencies and
the Indenture Trustee notice of redemption of Notes, if the Servicer has
not previously done so (Section 10.01);
(xxi) the duty to notify Noteholders of redemption of the Notes or
to cause the Indenture Trustee to provide such notification (Section
10.02);
(xxii) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 11.01(a));
(xxiii) the preparation and delivery of all Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.01(b));
(xxiv) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements or requests by the Noteholders with
respect to alternate payment and notice provisions (Section 11.06); and
(xxv) the recording of the Indenture, if applicable (Section
11.14).
(b) The Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date
hereof among the Depositor, the Seller and the Owner Trustee, and the Owner
Trustee shall be reimbursed for its other reasonable expenses hereunder in
the priority set forth in Section 5.06(b) in the Sale and Servicing
Agreement. In performing its duties under this Section 6.07, the Owner
Trustee shall be entitled to the indemnification provided by the Issuer under
Section 8.02 of this Agreement, in the priority set forth in Section 5.06(b)
of the Sale and Servicing Agreement.
(c) It is understood and agreed that the Owner Trustee shall be
entitled to engage outside counsel, independent accountants and other experts
to assist the Owner Trustee in connection with the performance of its duties
set forth in this section, including the preparation of all tax reports and
returns, securities law filings, Opinions of Counsel and Independent
Certificates, and the expenses of such experts shall be paid to the Owner
Trustee in accordance with the priorities set forth in Section 5.06(b) of the
Sale and Servicing Agreement.
(d) The Depositor and the Servicer shall furnish to the Owner Trustee
from time to time such additional information regarding the Trust or the
Basic Documents as the Owner Trustee shall reasonably request. The Indenture
Trustee shall furnish to the Owner Trustee annually (or upon any change
thereto) a copy of the Note Register. The Servicer shall furnish to the
Owner Trustee copies of all documents and reports required to be provided by
the Servicer pursuant to Article IV of the Sale and Servicing Agreement.
(e) The Owner Trustee shall not be responsible for taking any action
with respect to this Section 6.07 unless a responsible officer in the
Corporate Trust Administration Department of the Owner Trustee has actual
knowledge or has received written notice of the need to take such action.
(f) The rights and protections afforded to the Owner Trustee pursuant
to Article VII of this Agreement shall also be afforded to the Owner Trustee
with respect to the performance of its administrative duties under this
Section 6.07.
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):
(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 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 Servicer, the Indenture Trustee or
the Backup Servicer 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, the Servicer or the Backup 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 negligence
or willful misconduct in the performance of any such act.
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 and the Note Insurer, 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 this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
(c) Neither the execution 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.
(d) It is a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; 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 Standard & Poor's and P-1 by
Moody's or who is otherwise acceptable to each Rating Agency.
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 in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons and
not contrary to this Agreement or any Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as provided
---------------------------------
in this Article VII, in accepting the trusts hereby created, Wilmington Trust
Company 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, the
Servicer or the Backup 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, the Servicer or the Backup 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 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, neither Wilmington
Trust Company nor the Owner Trustee shall be required to take any action in
any jurisdiction other than in the State of Delaware if the taking of such
action will (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 Wilmington Trust Company or
the Owner Trustee; or (iii) subject Wilmington Trust Company or 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 transactions by Wilmington Trust Company or the Owner Trustee, as the
case may be, 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. Owner Trustee as Paying Agent. In the event the Owner
-----------------------------
Trustee is also acting as Paying Agent or Certificate Registrar, the rights
and protections afforded to the Owner Trustee pursuant to this Article VII
shall also be afforded to the Paying Agent and Certificate Registrar.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
---------------------------------
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Depositor and
the Owner Trustee, and the Owner Trustee shall be reimbursed 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, in the priority set forth
in Section 5.06(b) in the Sale and Servicing Agreement.
Section 8.02. Indemnification. The Issuer 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 Issuer 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 Owner Trustee's choice of legal counsel shall be subject to the
approval of the Issuer, 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.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
------------------------------
(a) This Agreement (other than 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. 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) Except as provided in Section 9.01(a), none of the Depositor, the
Note Insurer nor any Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
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
Servicer given pursuant to Section 9.01 of the Sale and Servicing Agreement,
stating (i) the Distribution 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 Distribution 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 Distribution 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 such remedies shall be
distributed by the Owner Trustee to the Depositor, subject to applicable
escheat laws.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3810 of the Business Trust Statute.
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 satisfying the provisions
of Section 3807(a) of the Business Trust Statute; authorized to exercise
corporate trust powers; 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 Standard & Poor's and P-1 by Moody's and being
acceptable by the Note Insurer, or who 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, the Note Insurer and the Rating Agencies. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee (acceptable to the Note Insurer) 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 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 and
the Note Insurer (so long as no Note Insurer Default shall have occurred and
be continuing).
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, the Note Insurer and to its predecessor Owner
Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the 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 Servicer, the Indenture Trustee, the Noteholders, the
Note Insurer 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
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corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, 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 corporation 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 the Note
Insurer (so long as no Note Insurer Default shall have occurred and be
continuing); and provided, further, that such successor Owner Trustee shall
file an
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amendment to the Certificate 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 power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee and acceptable to the Note
Insurer 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 or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator, the Note Insurer
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 (with the consent
of the Note Insurer) 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 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 consent of the
Note Insurer, and 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 an Opinion of Counsel
and satisfaction of the Rating Agency Condition with respect to such
amendment, adversely affect in any material respect the interests of any
Noteholder or Certificateholder or the rights of the Note Insurer.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with the consent of the Note Insurer (so long as no
Note Insurer Default shall have occurred and be continuing) and 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, the Certificateholders or the Note Insurer 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 and the Note Insurer.
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, the Note
Insurer, and each Rating Agency.
It shall not be necessary for the consent of Certificateholders,
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.
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 Issuer 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, the Note Insurer 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),
(i) if to the Owner Trustee, addressed to the Corporate Trust Office; if to
the Depositor, addressed to Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; telephone (▇▇▇) ▇▇▇-▇▇▇▇, (ii) if to the Note Insurer, MBIA Insurance
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: 1PM-SF SSB
Vehicle Securities, Inc. Hyundai Auto Receivables Trust 1998-A, telecopy:
▇▇▇-▇▇▇-▇▇▇▇, confirmation: ▇▇▇-▇▇▇-▇▇▇▇; or, as to each party, at such other
address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
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.
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 Note Insurer, 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 the Certificate 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 Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee, the Backup Servicer 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 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 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 (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.
Section 11.14. Third Party Beneficiary. The Note Insurer is an
-----------------------
express intended third party beneficiary of this Agreement entitled to
enforce any rights reserved to it and to rely on any representations
hereunder to the same extent as if it were a party to this Agreement.
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.
SSB VEHICLE SECURITIES INC.,
as Depositor
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President