Exhibit 99.1
EXECUTION COPY
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 20, 2005 (as from time
to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and among USAA AUTO OWNER TRUST 2005-3, a Delaware
statutory trust (the "Issuer"), USAA FEDERAL SAVINGS BANK, a federally
chartered savings association, as administrator (in such capacity, the
"Administrator"), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a banking
association organized under the laws of the United States, not in its
individual capacity but solely as Indenture Trustee (in such capacity, the
"Indenture Trustee").
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture and
the Certificates pursuant to the Trust Agreement and has entered into certain
agreements in connection therewith, including (i) the Sale and Servicing
Agreement, (ii) the Note Depository Agreement and (iii) the Indenture (the
Trust Agreement, the Sale and Servicing Agreement, the Note Depository
Agreement and the Indenture being referred to hereinafter collectively as the
"Related Agreements");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain duties of the Issuer and the Owner Trustee under
the Related Agreements and to provide such additional services consistent with
the terms of this Agreement and the Related Agreements as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions and Usage. Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as
to usage that shall be applicable herein.
2. Duties of the Administrator. (a) Duties with Respect to the Indenture
and the Note Depository Agreement. (i) The Administrator agrees to perform all
its duties as Administrator and the duties of the Issuer under the Note
Depository Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer under the Indenture and the
Note Depository Agreement. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's duties under the Indenture and the Note Depository
Agreement. The Administrator shall prepare for execution by the Issuer, or
shall cause the preparation by other appropriate Persons of, all such
documents, reports, filings, instruments, notices, certificates and opinions
that it shall be the duty of the Issuer to prepare, file or deliver pursuant
to the Indenture
and the Note Depository Agreement. In furtherance of the
foregoing, the Administrator shall take, in the name and on behalf of the
Issuer, all appropriate action that is the duty of the Issuer to take,
pursuant to the Indenture including, without limitation, such of the foregoing
as are required with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(A) the preparation of or obtaining of the documents and instruments
required for execution of the Notes and delivery of the same to the
Indenture Trustee for authentication (Section 2.2);
(B) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register and the
determination as to whether the requirements of UCC Section 8-401(a) are
met and the preparation of an Issuer Request requesting the Indenture
Trustee to authenticate and deliver Notes in connection with any transfer
or exchange (Section 2.5);
(C) the determination as to whether the requirements of UCC Section
8-405 are met and the preparation of an Issuer Request requesting the
Indenture Trustee to authenticate and deliver replacement Notes in lieu
of mutilated, destroyed, lost or stolen Notes (Section 2.6);
(D) the determination of the expenses associated with the issuance
of replacement Notes (Section 2.6(b));
(E) the preparation, obtaining or filing of Issuer Requests,
instruments, opinions and certificates and other documents required for
the release of property from the lien of the Indenture (Section 2.10);
(F) the preparation of Definitive Notes in accordance with the
instructions of the Clearing Agency and delivery of such to the Indenture
Trustee (Section 2.13);
(G) the maintenance and notice of location of the office in the
Borough of Manhattan, The City of New York, for registration of transfer
or exchange of Notes if the Indenture Trustee ceases to maintain such an
office (Section 3.2);
(H) the duty to cause newly appointed Note Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3(c));
(I) the delivery of the Issuer Order to the Indenture Trustee to
deposit monies with Note Paying Agents, if any, other than the Indenture
Trustee (Section 3.3(d));
(J) the delivery of an Issuer Request for publication and
notification of unclaimed amounts (Section 3.3(e));
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(K) the maintenance of the Issuer's status as a statutory trust and
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 or agreement included
in the Indenture Trust Estate (Section 3.4);
(L) the preparation and filing, as applicable, of all supplements
and amendments to the Indenture and all financing statements,
continuation statements, instruments of further assurance and other
instruments and the taking of such other action as is necessary or
advisable to protect the Indenture Trust Estate (Sections 3.5 and
3.7(c));
(M) the delivery of the Opinion of Counsel on the Closing Date and
the annual delivery of Opinions of Counsel as to the Indenture Trust
Estate, and the annual delivery of the Officer's Certificate and certain
other statements as to compliance with the Indenture (Sections 3.6 and
3.9);
(N) the identification to the Indenture Trustee in an Officer's
Certificate of any Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b));
(O) the notification of the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination under the Sale and
Servicing Agreement and, if such Event of Servicing Termination 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
3.7(d));
(P) the appointment of the Successor Servicer and preparation of the
related servicing agreement (Section 3.7(e));
(Q) the notification of the termination of the Servicer and
appointment of the Successor Servicer (Section 3.7(f));
(R) the preparation and obtaining of any documents, instruments and
opinions required for the consolidation or merger of the Issuer with
another entity or the transfer by the Issuer of its properties or assets
(Section 3.10);
(S) the delivery of a letter for release (Section 3.11(b));
(T) the duty to cause the Servicer to comply with Sections 3.9,
3.10, 3.11, 3.12, 3.13 and 4.10 and Article VI of the Sale and Servicing
Agreement (Section 3.14);
(U) upon the request of the Indenture Trustee, the execution and
delivery of any instruments and the undertaking of any actions reasonably
necessary to carry out more effectively the purpose of the Indenture
(Section 3.17);
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(V) the delivery of written notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture and each
default by any party to the Sale and Servicing Agreement (Section 3.19);
(W) 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 the Opinions of Counsel and
the Independent Certificate relating thereto and the demand to the
Indenture Trustee for execution of certain instruments (Section 4.1);
(X) the monitoring of the Issuer's obligations as to the
satisfaction, discharge and defeasance of the Notes and the preparation
of an Officer's Certificate and the obtaining of an opinion of a
nationally recognized firm of independent certified public accountants, a
written certification thereof and the Opinions of Counsel relating
thereto (Section 4.1);
(Y) the demand to remit monies (Section 4.3);
(Z) the preparation of an Officer's Certificate to the Indenture
Trustee after the occurrence of any event which with the giving of notice
and the lapse of time would become an Event of Default under Section
5.1(iii) of the Indenture, its status and what action the Issuer is
taking or proposes to take with respect thereto (Section 5.1);
(AA) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Indenture Trust Estate at one or
more public or private sales called and conducted in any manner permitted
by law if an Event of Default shall have occurred and be continuing
(Section 5.4);
(AB) the undertaking of actions set forth in Section 5.16 as
requested by the Indenture Trustee (Section 5.16);
(AC) the payment of expenses, costs and indemnities to the Indenture
Trustee (Section 6.7);
(AD) the removal of the Indenture Trustee upon the occurrence of
certain events, the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee, the appointment of a successor
Indenture Trustee and, if necessary, the petition of a court of competent
jurisdiction for the appointment of a successor Indenture Trustee
(Section 6.8);
(AE) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.1);
(AF) the preparation and, after execution by the Issuer, the filing
with the Commission, any applicable state agencies and the Indenture
Trustee of documents
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required to be filed on a periodic basis with, and summaries thereof
as may be required by rules and regulations prescribed by, the Commission
and any applicable state agencies and the transmission of such summaries,
as necessary, to the Noteholders (Section 7.3(a)); it being understood by
the parties hereto that the Indenture Trustee shall have no duty or
obligation to sign or file any report required to be filed with the
Commission or any other state agency or provide any certification to any
such Person or to the Administrator or any other Person that is obligated
to sign and file any such report;
(AG) the notification to the Indenture Trustee of the listing of the
Notes on any stock exchange (Section 7.4);
(AH) 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 Indenture Trust Estate (Sections 8.4
and 8.5);
(AI) 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 9.1, 9.2 and 9.3);
(AJ) the determination to execute and deliver new Notes conforming
to any supplemental indenture (Section 9.6);
(AK) the notice and deposit of money for prepayment of the Notes
(Section 10.1);
(AL) the notice to the Indenture Trustee and the duty to cause the
Indenture Trustee to provide notification to Noteholders of prepayment of
the Notes (Section 10.2);
(AM) the preparation of all Officer's Certificates, Issuer Requests
and Issuer Orders and the obtaining of 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
11.1(a));
(AN) the preparation of Officer's Certificates and the obtaining of
Independent Certificates, if necessary, for the release of property from
the lien of the Indenture (Section 11.1(b));
(AO) the notification of the Rating Agencies pursuant to Section
11.4 of the Indenture (Section 11.4);
(AP) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.6); and
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(AQ) the recording of the Indenture and payment of related expenses,
if applicable (Section 11.15).
(ii) The Administrator will:
(A) pay the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under the
Indenture (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture,
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of the Indenture (including the
reasonable compensation, expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its willful misconduct, negligence or bad faith;
(C) indemnify the Indenture Trustee and its officers, directors,
employees and agents for, and hold them harmless against, any losses,
liability or expense incurred without willful misconduct, negligence or
bad faith on their part, arising out of or in connection with the
acceptance or administration of the transactions contemplated by the
Indenture, including the reasonable costs and expenses (including
reasonable attorneys' fees) of defending themselves against any claim or
liability in connection with the exercise or performance of any of their
powers or duties under the Indenture; and
(D) indemnify, defend and hold harmless the Issuer, the Owner
Trustee, the Indenture Trustee and any of their respective officers,
directors, employees and agents from and against any loss, liability or
expense incurred by reason of (i) the Depositor's or the Issuer's
violation of federal or state securities laws in connection with the
offering and sale of the Notes and the Certificates or (ii) any breach of
the Depositor of any term, provision or covenant contained in the Sale
and Servicing Agreement.
Indemnification under this Section shall survive the resignation or
removal of the Indenture Trustee and the termination of this Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any such amount from others, such Person
shall promptly repay such amounts to the Administrator, without interest.
(b) Additional Duties. (i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform such calculations and shall
prepare or shall cause the preparation by other appropriate persons of, and
shall execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements, and at the request of the Owner
Trustee shall take all appropriate action that
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it is the duty of the Issuer or the Owner Trustee to take pursuant to the
Related Agreements. Subject to Section 6 of this Agreement, the Administrator
shall administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Issuer's payments (or allocations of income) to a
Certificateholder as contemplated in Section 5.2(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or the Related
Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Issuer, the Depositor, or the Owner
Trustee set forth in Sections 5.5(a), (b), (c) and (d) and the
penultimate sentence of Section 5.5 of the Trust Agreement with respect
to, among other things, accounting and reports to Certificateholders.
(iv) The Administrator shall provide prior to April 15, 2006 a
certificate of an Authorized Officer in form and substance satisfactory
to the Owner Trustee as to whether any tax withholding is then required
and, if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Administrator shall be
required to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax
withholding shall no longer be required.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 9.2 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee and
any other duties expressly required to be performed by the Administrator
pursuant to the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would
be available from unaffiliated parties.
(c) Non-Ministerial Matters. (i) With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time
before the taking of such action, the Administrator shall have notified
the Owner Trustee of the proposed action and the Owner Trustee shall not
have withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to the Indenture;
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(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables or Permitted Investments);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Note Registrars, successor
Note Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or
Successor Servicers, or the consent to the assignment by the Note
Registrar, Note Paying Agent or Indenture Trustee of its obligations
under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders under the Related Agreements, (y) sell the
Indenture Trust Estate pursuant to Section 5.4 of the Indenture or (z)
take any other action that the Issuer directs the Administrator not to
take on its behalf.
3. Records. The Administrator shall maintain appropriate books of account
and records relating to services performed hereunder, which books of account
and records shall be accessible for inspection by the Issuer and the Depositor
at any time during normal business hours.
4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $2,000
annually which shall be solely an obligation of the Depositor.
5. Additional Information To Be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
6. Independence of the Administrator. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject
to the supervision of the Issuer or the Owner Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Issuer, the Administrator shall have no
authority to act for or represent the Issuer or the Owner Trustee in any way
and shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any
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of them any express, implied or apparent authority to incur any obligation or
liability on behalf of the others.
8. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
9. Term of Agreement; Resignation and Removal of Administrator. (a) This
Agreement shall continue in force until the termination of the Issuer in
accordance with Section 8.1 of the Trust Agreement, upon which event this
Agreement shall automatically terminate.
(b) Subject to Sections 9(e) and 9(f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days' prior
written notice.
(c) Subject to Sections 9(e) and 9(f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days' prior written notice.
(d) Subject to Sections 9(e) and 9(f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following
events shall occur:
(i) the Administrator shall default in any material respect in the
performance of any of its duties under this Agreement and, after notice
of such default, shall not cure such default within ten (10) days (or, if
such default cannot be cured in such time, such longer period acceptable
to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within sixty (60) days, in respect of the Administrator in any
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or order the
winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, shall consent to the appointment of
a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part of its
property, shall consent to the taking of possession by any such official
of any substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail generally to pay
its debts as they become due.
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The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 9 shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same
manner as the Administrator is bound hereunder. The Issuer shall provide
written notice of any such resignation or removal to the Indenture Trustee,
with a copy to the Rating Agencies.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign. The Indenture
Trustee shall assist the Issuer to find a successor Administrator.
10. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 9(a) or
the resignation or removal of the Administrator pursuant to Section 9(b), (c)
or (d), respectively, the Administrator shall be entitled to be paid all fees
and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 9(a) deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section 9(b), (c) or (d), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist
the Issuer in making an orderly transfer of the duties of the Administrator.
11. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
USAA Auto Owner Trust 2005-3
c/o Wachovia Bank of Delaware, National Association
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Administrator, to:
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USAA Federal Savings Bank
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Indenture Trustee, to:
JPMorgan Chase Bank, National Association
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Worldwide Securities Services/Global Debt--USAA Auto Owner
Trust 2005-3
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
12. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders and the Certificateholders, 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 Certificateholders; provided that such amendment
shall not, as set forth in an Opinion of Counsel satisfactory to the Indenture
Trustee and the Owner Trustee, materially and adversely affect the interest of
any Noteholder or Certificateholder. This Agreement may also be amended by the
Issuer, the Administrator and the Indenture Trustee with the written consent
of the Owner Trustee and the Noteholders of Notes evidencing not less than a
majority of the Notes Outstanding and the Certificateholders 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
Noteholders or the Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or Certificateholders or (ii) reduce the aforesaid percentage of the
Noteholders and Certificateholders which are required to consent to any such
amendment, without the consent of the Noteholders of all the Notes Outstanding
and Certificateholders of Certificates evidencing the Certificate Balance.
Promptly after the execution of any such amendment, the Administrator shall
furnish written notification of such amendment to each Rating Agency.
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13. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and subject to the satisfaction of the Rating
Agency Condition in respect thereof. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder
in the same manner as the Administrator is bound hereunder. Notwithstanding
the foregoing, this Agreement may be assigned by the Administrator without the
consent of the Issuer or the Owner Trustee to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator; provided that such successor organization
executes and delivers to the Issuer, the Owner Trustee and the Indenture
Trustee an agreement in which such corporation or other organization agrees to
be bound hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
15. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall 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.
18. Not Applicable to the Bank in Other Capacities. Nothing in this
Agreement shall affect any right or obligation the Bank may have in any
capacity other than as Administrator.
19. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been signed on behalf of the Issuer by Wachovia Bank of Delaware, National
Association, not in its individual capacity but solely in its capacity as
Owner Trustee of the Issuer and in no event shall Wachovia Bank of Delaware,
National Association in its individual capacity or any beneficial owner of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of
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the Issuer. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by JPMorgan Chase Bank, National Association
not in its individual capacity but solely as Indenture Trustee and in no event
shall JPMorgan Chase Bank, National Association have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of
any duties or obligations of the Issuer hereunder, the Indenture Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Article VI of the Indenture.
20. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
21. Nonpetition Covenants. Notwithstanding any prior termination of this
Agreement, the Administrator and the Indenture Trustee shall not, prior to the
date which is one year and one day after the termination of this Agreement
with respect to the Issuer, acquiesce, petition or otherwise invoke or cause
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer under any
federal or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
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IN WITNESS WHEREOF, the parties have caused this Administration Agreement
to be duly executed and delivered as of the day and year first above written.
USAA AUTO OWNER TRUST 2005-3
By: Wachovia Bank of Delaware, National
Association,
not in its individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
USAA FEDERAL SAVINGS BANK, as
Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Senior Financial
Officer and Treasurer
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APPENDIX A
Definitions and Usage
(attached to the Sale and Servicing Agreement as Appendix A)
Appendix A-1