EXHIBIT 10.4


USAA AUTO OWNER TRUST 2009-2


AMENDED AND RESTATED 

TRUST AGREEMENT


between


USAA ACCEPTANCE, LLC, 

as the Depositor


and


WELLS FARGO DELAWARE TRUST COMPANY, 

as the Owner Trustee


Dated as of November 13, 2009






TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE I

 	
 DEFINITIONS

 	
  

 	
 1

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 1.1.

 	
 Capitalized
 Terms

 	
  

 	
 1

 
	
  

 	
 SECTION 1.2.

 	
 Other
 Interpretive Provisions

 	
  

 	
 1

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE II

 	
 ORGANIZATION

 	
  

 	
 2

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 2.1.

 	
 Name

 	
  

 	
 2

 
	
  

 	
 SECTION 2.2.

 	
 Office

 	
  

 	
 2

 
	
  

 	
 SECTION 2.3.

 	
 Purposes and
 Powers

 	
  

 	
 2

 
	
  

 	
 SECTION 2.4.

 	
 Appointment
 of the Owner Trustee

 	
  

 	
 3

 
	
  

 	
 SECTION 2.5.

 	
 Initial
 Capital Contribution of Trust Estate

 	
  

 	
 3

 
	
  

 	
 SECTION 2.6.

 	
 Declaration
 of Trust

 	
  

 	
 3

 
	
  

 	
 SECTION 2.7.

 	
 Organizational
 Expenses; Liabilities of the Holders

 	
  

 	
 3

 
	
  

 	
 SECTION 2.8.

 	
 Title to the
 Trust Estate

 	
  

 	
 3

 
	
  

 	
 SECTION 2.9.

 	
 Representations
 and Warranties of the Depositor

 	
  

 	
 4

 
	
  

 	
 SECTION
 2.10.

 	
 Situs of
 Issuer

 	
  

 	
 5

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE III

 	
 CERTIFICATES
 AND TRANSFER OF CERTIFICATES

 	
  

 	
 5

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 3.1.

 	
 Initial
 Ownership

 	
  

 	
 5

 
	
  

 	
 SECTION 3.2.

 	
 Authentication
 of Certificates

 	
  

 	
 5

 
	
  

 	
 SECTION 3.3.

 	
 Form of the
 Certificates

 	
  

 	
 5

 
	
  

 	
 SECTION 3.4.

 	
 Registration
 of Certificates

 	
  

 	
 5

 
	
  

 	
 SECTION 3.5.

 	
 Transfer of
 Certificates

 	
  

 	
 5

 
	
  

 	
 SECTION 3.6.

 	
 Lost,
 Stolen, Mutilated or Destroyed Certificates

 	
  

 	
 7

 
	
  

 	
 SECTION 3.7.

 	
 Access to
 List of Certificateholders’ Names and Addresses

 	
  

 	
 7

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE IV

 	
 ACTIONS BY
 OWNER TRUSTEE

 	
  

 	
 8

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 4.1.

 	
 Prior Notice
 to Certificateholders with Respect to Certain Matters

 	
  

 	
 8

 
	
  

 	
 SECTION 4.2.

 	
 Action by
 Certificateholders with Respect to Certain Matters

 	
  

 	
 8

 
	
  

 	
 SECTION 4.3.

 	
 Action by
 Certificateholders with Respect to Bankruptcy

 	
  

 	
 8

 
	
  

 	
 SECTION 4.4.

 	
 Restrictions
 on Certificateholders’ Power

 	
  

 	
 8

 
	
  

 	
 SECTION 4.5.

 	
 Majority
 Control

 	
  

 	
 9

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE V

 	
 APPLICATION
 OF TRUST FUNDS; CERTAIN DUTIES

 	
  

 	
 9

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 5.1.

 	
 Application
 of Trust Funds

 	
  

 	
 9

 
	
  

 	
 SECTION 5.2.

 	
 Method of
 Payment

 	
  

 	
 9

 
	
  

 	
 SECTION 5.3.

 	
 Sarbanes-Oxley
 Act

 	
  

 	
 10

 
	
  

 	
 SECTION 5.4.

 	
 Signature on
 Returns

 	
  

 	
 10

 


i






TABLE OF CONTENTS
(continued) 



	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
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 SECTION 5.5.

 	
 Accounting
 and Reports to Noteholders, Certificateholders, Internal Revenue Service and
 Others

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VI 

 	
 AUTHORITY
 AND DUTIES OF OWNER TRUSTEE

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 6.1.

 	
 General
 Authority

 	
  

 	
 10

 
	
  

 	
 SECTION 6.2.

 	
 General
 Duties

 	
  

 	
 11

 
	
  

 	
 SECTION 6.3.

 	
 Action upon
 Instruction

 	
  

 	
 11

 
	
  

 	
 SECTION 6.4.

 	
 No Duties Except
 as Specified in this Agreement or in Instructions

 	
  

 	
 12

 
	
  

 	
 SECTION 6.5.

 	
 No Action
 Except under Specified Documents or Instructions

 	
  

 	
 12

 
	
  

 	
 SECTION 6.6.

 	
 Restrictions

 	
  

 	
 12

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VII 

 	
 CONCERNING
 OWNER TRUSTEE

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 7.1.

 	
 Acceptance
 of Trusts and Duties

 	
  

 	
 13

 
	
  

 	
 SECTION 7.2.

 	
 Furnishing
 of Documents

 	
  

 	
 13

 
	
  

 	
 SECTION 7.3.

 	
 Representations
 and Warranties

 	
  

 	
 13

 
	
  

 	
 SECTION 7.4.

 	
 Reliance;
 Advice of Counsel

 	
  

 	
 14

 
	
  

 	
 SECTION 7.5.

 	
 Not Acting
 in Individual Capacity

 	
  

 	
 15

 
	
  

 	
 SECTION 7.6.

 	
 The Owner
 Trustee May Own Notes

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE VIII
 

 	
 COMPENSATION
 AND INDEMNIFICATION OF OWNER TRUSTEE

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 8.1.

 	
 The Owner
 Trustee’s Compensation

 	
  

 	
 15

 
	
  

 	
 SECTION 8.2.

 	
 Indemnification

 	
  

 	
 15

 
	
  

 	
 SECTION 8.3.

 	
 Payments to
 the Owner Trustee

 	
  

 	
 16

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE IX 

 	
 TERMINATION OF
 TRUST AGREEMENT

 	
  

 	
 16

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION 9.1.

 	
 Dissolution
 of the Issuer

 	
  

 	
 16

 
	
  

 	
 SECTION 9.2.

 	
 Winding Up
 of the Issuer

 	
  

 	
 16

 
	
  

 	
 SECTION 9.3.

 	
 Limitations
 on Termination

 	
  

 	
 16

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE X 

 	
 SUCCESSOR
 OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

 	
  

 	
 17

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION
 10.1.

 	
 Eligibility
 Requirements for the Owner Trustee

 	
  

 	
 17

 
	
  

 	
 SECTION
 10.2.

 	
 Resignation
 or Removal of the Owner Trustee

 	
  

 	
 17

 
	
  

 	
 SECTION
 10.3.

 	
 Successor
 Owner Trustee

 	
  

 	
 18

 
	
  

 	
 SECTION
 10.4.

 	
 Merger or
 Consolidation of the Owner Trustee

 	
  

 	
 18

 
	
  

 	
 SECTION
 10.5.

 	
 Appointment
 of Co-Trustee or Separate Trustee

 	
  

 	
 18

 


ii






TABLE OF CONTENTS
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 ARTICLE XI 

 	
 MISCELLANEOUS
 

 	
  

 	
 20

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 SECTION
 11.1.

 	
 Amendments

 	
  

 	
 20

 
	
  

 	
 SECTION
 11.2.

 	
 No Legal
 Title to Trust Estate in Certificateholders

 	
  

 	
 21

 
	
  

 	
 SECTION 11.3.

 	
 Limitations
 on Rights of Others

 	
  

 	
 21

 
	
  

 	
 SECTION
 11.4.

 	
 Notices

 	
  

 	
 22

 
	
  

 	
 SECTION
 11.5.

 	
 Severability

 	
  

 	
 22

 
	
  

 	
 SECTION
 11.6.

 	
 Separate
 Counterparts

 	
  

 	
 22

 
	
  

 	
 SECTION
 11.7.

 	
 Successors
 and Assigns

 	
  

 	
 22

 
	
  

 	
 SECTION
 11.8.

 	
 No Petition

 	
  

 	
 22

 
	
  

 	
 SECTION
 11.9.

 	
 Headings

 	
  

 	
 23

 
	
  

 	
 SECTION
 11.10.

 	
 Governing
 Law

 	
  

 	
 24

 
	
  

 	
 SECTION
 11.11.

 	
 [Reserved]

 	
  

 	
 24

 
	
  

 	
 SECTION
 11.12.

 	
 Waiver of
 Jury Trial

 	
  

 	
 24

 
	
  

 	
 SECTION
 11.13.

 	
 Information
 Requests

 	
  

 	
 24

 
	
  

 	
 SECTION
 11.14.

 	
 Form 10-D
 and Form 10-K Filings

 	
  

 	
 24

 
	
  

 	
 SECTION
 11.15.

 	
 Form 8-K
 Filings

 	
  

 	
 24

 
	
 Exhibit
 A          Form of
 Certificate

 	
  

 	
  

 
	
 Exhibit
 B          Form of Owner
 Trustee’s Annual Certification Regarding Item 1117 and Item 1119 of
 Regulation AB

 	
  

 	
  

 


iii





          This AMENDED AND RESTATED TRUST AGREEMENT is
made as of November 13, 2009 (as from time to time amended, supplemented or
otherwise modified and in effect, this “Agreement”) between USAA ACCEPTANCE, LLC, a Delaware limited
liability company, as the depositor (the “Depositor”), and WELLS FARGO DELAWARE TRUST COMPANY, a
Delaware limited purpose trust company (“Wells Fargo”), as the owner
trustee (in such capacity, the “Owner Trustee”). 


RECITALS


          WHEREAS,
the Depositor and the Owner Trustee entered into that certain Trust Agreement
dated as of October 19, 2009 (the “Original Trust Agreement”), pursuant
to which the Issuer (as defined below) was created; and 


          WHEREAS, in
connection with the issuance of the Notes, the parties have agreed to amend and
restate the Original Trust Agreement; 


          NOW
THEREFORE, in consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows: 


ARTICLE I


DEFINITIONS


          SECTION
1.1. Capitalized Terms. Unless
otherwise indicated, capitalized terms used in this Agreement are defined in Appendix
A to the Sale and Servicing Agreement dated as of the date hereof (as from
time to time amended, supplemented or otherwise modified and in effect, the “Sale
and Servicing Agreement”) among the Issuer, the Depositor, as seller, USAA
Federal Savings Bank, as servicer, and The Bank of New York Mellon, as
indenture trustee, as the same may be amended, modified or supplemented from
time to time. 


          SECTION
1.2. Other Interpretive Provisions.
All terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document delivered pursuant hereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms
not otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective meanings
given to them under GAAP; (b) terms defined in Article 9 of the UCC as in
effect in the State of Delaware and not otherwise defined in this Agreement are
used as defined in that Article; (c) the words “hereof,” “herein” and
“hereunder” and words of similar import refer to this Agreement as a whole and
not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any
paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (e) the term “including” means “including without
limitation”; (f) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; and (g) references to any Person include that Person’s successors
and assigns. 





ARTICLE II


ORGANIZATION


          SECTION
2.1. Name. The trust created
under the Original Trust Agreement shall be known as “USAA Auto Owner Trust
2009-2” (the “Issuer”), in which name the Owner Trustee may conduct the
business of such trust, make and execute contracts and other instruments on
behalf of such trust and sue and be sued. 


          SECTION
2.2. Office. The office of the
Issuer shall be in care of the Owner Trustee at the Corporate Trust Office or
at such other address as the Owner Trustee may designate by written notice to
each Certificateholder, the Depositor and the Administrator. 


          SECTION
2.3. Purposes and Powers. The
purpose of the Issuer is, and the Issuer shall have the power and authority, to
engage in the following activities: 


	
  

 	
  

 
	
  

 	
           (a) to
 issue the Notes pursuant to the Indenture and the Certificates pursuant to
 this Agreement, and to sell, transfer and exchange the Notes and the
 Certificates and to pay interest on and principal of the Notes and
 distributions on the Certificates; 

 
	
  

 	
  

 
	
  

 	
           (b) to
 acquire the property and assets set forth in the Sale and Servicing Agreement
 from the Depositor pursuant to the terms thereof, to make deposits to and
 withdrawals from the Collection Account, the Principal Distribution Account
 and the Reserve Account and to pay the organizational, start-up and
 transactional expenses of the Issuer; 

 
	
  

 	
  

 
	
  

 	
           (c) to
 assign, Grant, transfer, pledge, mortgage and convey the Trust Estate
 pursuant to the Indenture and to hold, manage and distribute to the
 Certificateholders any portion of the Trust Estate released from the lien of,
 and remitted to the Issuer pursuant to, the Indenture; 

 
	
  

 	
  

 
	
  

 	
           (d) to
 enter into and perform its obligations under the Transaction Documents to
 which it is a party; 

 
	
  

 	
  

 
	
  

 	
           (e) to
 engage in those activities, including entering into agreements, that are
 necessary, suitable or convenient to accomplish the foregoing or are
 incidental thereto or connected therewith; and 

 
	
  

 	
  

 
	
  

 	
           (f)
 subject to compliance with the Transaction 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 Owner Trustee is hereby authorized to engage in the foregoing
activities on behalf of the Issuer. Neither the Issuer nor the Owner Trustee on
behalf of the Issuer shall engage in any activity other than in connection with
the foregoing or other than as required or authorized by the terms of this
Agreement or the other Transaction Documents. 


	
  

 	
  

 	
  

 
	
  

 	
 2

 	
 Amended and Restated Trust Agreement 

 (USAA 2009-2) 

 









          SECTION
2.4. Appointment of the Owner Trustee.
Upon the execution of this Agreement, the Owner Trustee shall continue as
trustee of the Issuer, to have all the rights, powers and duties set forth
herein. 


          SECTION
2.5. Initial Capital Contribution of Trust
Estate. As of the date
of the Original Trust Agreement, the Depositor sold, assigned, transferred,
conveyed and set over to the Owner Trustee the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of such date, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be deposited in the Collection Account. 


          SECTION
2.6. Declaration of Trust. The
Owner Trustee hereby declares that it will hold the Trust Estate in trust upon
and subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Issuer under the
Transaction Documents. It is the intent of the parties hereto that the Issuer
constitute a statutory trust under the Statutory Trust Statute and that this
Agreement constitute the governing instrument of such statutory trust. It is
the intent of the parties hereto that, solely for income, franchise and value
added tax purposes, so long as there is a single beneficial owner of the
Certificates, the Issuer will be disregarded as an entity separate from such
beneficial owner and the Notes will be characterized as debt. The parties agree
that, unless otherwise required by appropriate tax authorities, the Issuer will
not file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the characterization of the Issuer as an entity
separate from its owner. In the event that the Issuer is deemed to have more
than one beneficial owner for federal income tax purposes, the Issuer will file
returns, reports and other forms consistent with the characterization of the
Issuer as a partnership, and this Agreement shall be amended to include such
provisions as may be required under Subchapter K of the Internal Revenue Code
of 1986, as amended. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Issuer. The Owner
Trustee filed the Certificate of Trust with the Secretary of State of the State
of Delaware as required by Section 3810(a) of the Statutory Trust Statute.
Notwithstanding anything herein or in the Statutory Trust Statute to the
contrary, it is the intention of the parties hereto that the Issuer constitute
a “business trust” within the meaning of Section 101(9)(A)(v) of the Bankruptcy
Code. For each taxable year of the Issuer, pursuant to Sections 7704(c) and
7704(d) of the Code, the principal activity of the Issuer will consist of
purchasing and holding debt receivables (which are capital assets to the
Issuer) and issuing and paying notes, and at least 90% of the Issuer’s gross
income for each taxable year of the Issuer will constitute “qualifying income”
under such Code provisions in the form of interest and gains from such
receivables and other qualifying income. 


          SECTION
2.7. Organizational Expenses; Liabilities of
the Holders. (a) The Servicer shall pay organizational expenses of
the Issuer as they may arise. 


	
  

 	
  

 
	
  

 	
           (b) No
 Certificateholder (including the Depositor) shall have any personal liability
 for any liability or obligation of the Issuer. 

 


          SECTION
2.8. Title to the Trust Estate.
Legal title to all the Trust Estate shall be vested at all times in the Issuer
as a separate legal entity. 


	
  

 	
  

 	
  

 
	
  

 	
 3

 	
 Amended and Restated Trust Agreement 

 (USAA 2009-2) 

 









          SECTION
2.9. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner
Trustee that: 


	
  

 	
  

 
	
  

 	
           (a) Existence and Power. The Depositor is a
 limited liability company validly existing and in good standing under the
 laws of the State of Delaware and has, in all material respects, all power
 and authority required to carry on its business as now conducted. The
 Depositor has obtained all necessary licenses and approvals in each
 jurisdiction where the failure to do so would materially and adversely affect
 the ability of the Depositor to perform its obligations under the Transaction
 Documents. 

 
	
  

 	
  

 
	
  

 	
           (b) Authorization and No Contravention. The
 execution, delivery and performance by the Depositor of each Transaction
 Document to which it is a party (i) have been duly authorized by all
 necessary action on the part of the Depositor and (ii) do not contravene or
 constitute a default under (A) any applicable law, rule or regulation, (B)
 its organizational instruments or (C) any material agreement, contract, order
 or other instrument to which it is a party or its property is subject (other
 than violations of such laws, rules, regulations, indenture or agreements
 which do not affect the legality, validity or enforceability of any of such
 agreements and which, individually or in the aggregate, would not materially
 and adversely affect the transactions contemplated by, or the Depositor’s
 ability to perform its obligations under, the Transaction Documents to which
 it is a party). 

 
	
  

 	
  

 
	
  

 	
           (c) No Consent Required. No approval,
 authorization or other action by, or filing with, any Governmental Authority
 is required in connection with the execution, delivery and performance by the
 Depositor of any Transaction Document other than (i) UCC filings, (ii)
 approvals and authorizations that have previously been obtained and filings
 which have previously been made and (iii) approvals, authorizations or
 filings which, if not obtained or made, would not have a material adverse
 effect on the ability of the Depositor to perform its obligations under the
 Transaction Documents to which it is a party. 

 
	
  

 	
  

 
	
  

 	
           (d) Binding Effect. Each Transaction
 Document to which the Depositor is a party constitutes the legal, valid and
 binding obligation of the Depositor enforceable against the Depositor in
 accordance with its terms, except as such enforceability may be limited by
 applicable bankruptcy, insolvency, reorganization, moratorium, receivership,
 conservatorship or other similar laws affecting creditors’ rights generally
 and, if applicable the rights of creditors of limited liability companies
 from time to time in effect or by general principles of equity or other
 similar laws of general application relating to or affecting the enforcement
 of creditors’ rights generally and subject to general principles of equity. 

 
	
  

 	
  

 
	
  

 	
           (e) No Proceedings. There is no action,
 suit, Proceeding or investigation pending or, to the knowledge of the
 Depositor, threatened against the Depositor which, either in any one instance
 or in the aggregate, would result in any material adverse change in the
 business, operations, financial condition, properties or assets of the
 Depositor, or in any material impairment of the right or ability of the
 Depositor to carry on its business substantially as now conducted, or in any
 material liability on the part of the Depositor, 

 






	
  

 	
  

 	
  

 
	
  

 	
 4

 	
 Amended and Restated Trust Agreement 

 (USAA 2009-2) 

 













	
  

 	
  

 
	
  

 	
 or which would render invalid this Agreement or the Receivables or
 the obligations of the Depositor contemplated herein, or which would
 materially impair the ability of the Depositor to perform under the terms of
 this Agreement or any other Transaction Document.

 
	
  

 	
  

 
	
  

 	
 SECTION 2.10. Situs of Issuer.
 The Issuer shall be located in the State of Delaware.

 


ARTICLE III


CERTIFICATES AND TRANSFER OF CERTIFICATES


          SECTION
3.1. Initial Ownership. Upon the
formation of the Issuer and until the issuance of the Certificates, the
Depositor is the sole beneficiary of the Issuer; and upon the issuance of the
Certificates, the Depositor will no longer be a beneficiary of the Issuer,
except to the extent that the Depositor is a Certificateholder. 


          SECTION
3.2. Authentication of Certificates.
Concurrently with the sale of the Transferred Assets to the Issuer pursuant to
the Sale and Servicing Agreement, the Owner Trustee shall cause the
Certificates to be executed on behalf of the Issuer, authenticated and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president, its chief financial officer, its chief accounting
officer, any vice president, its secretary, any assistant secretary, its
treasurer or any assistant treasurer, without further corporate action by the
Depositor. The Certificates shall represent 100% of the beneficial interest in
the Issuer and shall be fully-paid and nonassessable. 


          SECTION
3.3. Form of the Certificates.
Each Certificate, upon issuance, will be issued in the form of a typewritten
Certificate, substantially in the form of Exhibit A hereto, representing
a definitive Certificate. The Owner Trustee shall execute and authenticate, or
cause to be authenticated, each definitive Certificate in accordance with the
written instructions of the Depositor. 


          SECTION
3.4. Registration of Certificates.
The Owner Trustee shall maintain at its office referred to in Section 2.2,
or at the office of any agent appointed by it and approved in writing by the
Certificateholders at the time of such appointment, a register for the
registration and transfer of any Certificate. 


          SECTION 3.5. Transfer of Certificates.
(a) Any Certificateholder may assign, convey or otherwise transfer all or any
of its right, title and interest in the related Certificate; provided, that (i) such transferee is
either an Affiliate of the Depositor or a Qualified Institutional Buyer, (ii)
the Owner Trustee and the Issuer receive an Opinion of Counsel stating that, in
the opinion of such counsel, such transfer will not cause the Issuer to be
treated as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes, (iii) such Certificate may not be
acquired by or for the account of or with the assets of a Benefit Plan, and
(iv) no purchase or transfer of a Certificate shall cause the Issuer to be
required to withhold on the transferee’s distributions as distributive shares
of income under Sections 871, 881 or 1446 of the Code, and neither the Owner
Trustee nor the Issuer will recognize any purchase or transfer of Certificates
giving rise to such withholding; provided, that the condition set forth
in (ii) above 


	
  

 	
  

 	
  

 
	
  

 	
 5

 	
 Amended and Restated Trust Agreement 

 (USAA 2009-2)

 









will not apply to a transfer of 100% of the Certificate or Certificates
to United Services Automobile Association, provided United Services Automobile
Association is considered a C Corporation for U.S. federal income tax purposes.
By accepting and holding a Certificate (or any interest therein), the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing the Certificate (or any interest therein) on
behalf of a Benefit Plan. The Owner Trustee shall have no duty to independently
determine that the requirement in (iii) and (iv) above is met and shall incur
no liability to any Person in the event the Holder of a Certificate does not
comply with such restrictions. Subject to the transfer restrictions contained
herein and in the Certificate, any Certificateholder may transfer all or any
portion of the beneficial interest in the Issuer evidenced by such Certificate
upon surrender thereof to the Owner Trustee accompanied by the documents
required by this Section 3.5. Such transfer may be made by a registered
Certificateholder in person or by his attorney duly authorized in writing upon
surrender of the Certificate to the Owner Trustee accompanied by a written
instrument of transfer and with such signature guarantees and evidence of
authority of the Persons signing the instrument of transfer as the Owner Trustee
may reasonably require. Promptly upon the receipt of such documents and receipt
by the Owner Trustee of the transferor’s Certificate, the Owner Trustee shall
record the name of such transferee as a Certificateholder and its percentage of
beneficial interest in the Issuer in the Certificate register and issue,
execute and deliver to such Certificateholder a Certificate evidencing such
beneficial interest in the Issuer. In the event a transferor transfers only a
portion of its beneficial interest in the Issuer, the Owner Trustee shall
register and issue to such transferor a new Certificate evidencing such
transferor’s new percentage of beneficial interest in the Issuer. Subsequent to
a transfer and upon the issuance of the new Certificate or Certificates, the
Owner Trustee shall cancel and destroy the Certificate surrendered to it in
connection with such transfer. The Owner Trustee may treat, for all purposes
whatsoever, the Person in whose name any Certificate is registered as the sole
owner of the beneficial interest in the Issuer evidenced by such Certificate,
and neither the Owner Trustee nor any agent of the Owner Trustee shall be
affected by notice to the contrary. 


	
  

 	
  

 
	
  

 	
           (b) As a
 condition precedent to any registration of transfer under this Section 3.5,
 the Owner Trustee may require the payment of a sum sufficient to cover the
 payment of any tax or taxes or other governmental charges required to be paid
 in connection with such transfer. 

 
	
  

 	
  

 
	
  

 	
           (c) The
 Owner Trustee shall not be obligated to register any transfer of a
 Certificate unless each of the transferor and the transferee have certified
 to the Owner Trustee that such transfer does not violate any of the transfer
 restrictions stated herein including, but not limited to clauses (d)
 and (e) of this Section 3.5. The Owner Trustee shall not be
 liable to any Person for registering any transfer based on such
 certifications. 

 
	
  

 	
  

 
	
  

 	
           (d) No
 transfer (or purported transfer) of all or any part of a Certificateholder’s
 interest (or any economic interest therein), whether to another
 Certificateholder or to a Person who is not a Certificateholder, shall be
 effective, and, to the fullest extent permitted by law, any such transfer (or
 purported transfer) shall be void ab initio, and no Person
 shall otherwise become a Certificateholder if, after such transfer (or
 purported transfer), the Issuer would have more than 95 direct or indirect
 holders of an interest in the Certificates. For purposes of determining
 whether the Issuer will have more than 95 

 






	
  

 	
  

 	
  

 
	
  

 	
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 direct or indirect holders of an interest in the Certificates, each
 Person indirectly owning an interest through a partnership (including any
 entity treated as a partnership for federal income tax purposes), a grantor
 trust or an S corporation (each such entity, a “flow-through entity”)
 shall be treated as a Certificateholder unless the Depositor determines in
 its sole and absolute discretion, after consulting with qualified tax
 counsel, that less than substantially all of the value of the beneficial
 owner’s interest in the flow-through entity is attributable to the
 flow-through entity’s interest (direct or indirect) in the Issuer. 

 
	
  

 	
  

 
	
  

 	
           (e) No
 transfer shall be permitted if the same is effected through an established
 securities market or secondary market (or the substantial equivalent thereof)
 within the meaning of Section 7704 of the Code or would make the Issuer
 ineligible for “safe harbor” treatment under Section 7704 of the Code. 

 


          SECTION
3.6. Lost, Stolen, Mutilated or Destroyed
Certificates. If (i) any mutilated Certificate is surrendered to the
Owner Trustee, or (ii) the Owner Trustee receives evidence to its satisfaction
that any Certificate has been destroyed, lost or stolen, and upon proof of
ownership satisfactory to the Owner Trustee together with such security or
indemnity as may be requested by the Owner Trustee to save it harmless, the
Owner Trustee shall execute and deliver a new Certificate for the same
percentage of beneficial interest in the Issuer as the Certificate so
mutilated, destroyed, lost or stolen, of like tenor and bearing a different
issue number, with such notations, if any, as the Owner Trustee shall
determine. Upon the issuance of any new Certificate under this Section 3.6,
the Issuer or Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of a Certificate and any other reasonable
expenses (including the reasonable fees and expenses of the Issuer and the
Owner Trustee) connected therewith. Any duplicate Certificate issued pursuant
to this Section 3.6 shall constitute complete and indefeasible evidence
of ownership in the Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time. 


          SECTION 3.7. Access to List of
Certificateholders’ Names and Addresses. The Owner Trustee shall
furnish or cause to be furnished to the Servicer and the Depositor, or to the
Indenture Trustee, within fifteen (15) days after receipt by the Owner Trustee
of a written request therefor from the Servicer or the Depositor, or the
Indenture Trustee, as the case may be, a list, in such form as the requesting
party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more holders of Certificates evidencing not less
than 25% of the beneficial interest in the Issuer evidenced by the Certificates
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 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 (5) 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 Certificate, shall be deemed to
have agreed not to hold either the Depositor 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. 


	
  

 	
  

 	
  

 
	
  

 	
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ARTICLE IV



ACTIONS BY OWNER TRUSTEE


          SECTION
4.1. Prior
Notice to Certificateholders 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 each Certificateholder in writing of the proposed action
and each Certificateholder shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Certificateholder
has withheld consent or provided alternative direction:


	
  

 	
  

 
	
  

 	
           (a) the
 amendment of the Indenture by a supplemental indenture in circumstances where
 the consent of any Noteholder is required;

 
	
  

 	
  

 
	
  

 	
           (b) the
 amendment of the Indenture by a supplemental indenture in circumstances where
 the consent of any Noteholder is not required and such amendment materially
 adversely affects the interests of the Certificateholders;

 
	
  

 	
  

 
	
  

 	
           (c) the
 amendment, change or modification of the Sale and Servicing Agreement, or the
 Administration Agreement, except to cure any ambiguity or defect or to amend
 or supplement any provision in a manner that would not materially adversely
 affect the interests of the Certificateholders; or

 
	
  

 	
  

 
	
  

 	
           (d) the appointment
 pursuant to the Indenture of a successor Indenture Trustee or the consent to
 the assignment by the Note Registrar or the Indenture Trustee of its
 obligations under the Indenture or this Agreement, as applicable.

 


          SECTION
4.2. Action
by Certificateholders with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the direction of the
Certificateholders, to (a) except as expressly provided in the Transaction
Documents, sell the Collateral after the termination of the Indenture in
accordance with its terms, (b) remove the Administrator under the
Administration Agreement pursuant to Section 8 thereof or (c) appoint a
successor Administrator pursuant to Section 8 of the Administration
Agreement. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by each
Certificateholder.


          SECTION
4.3. Action
by Certificateholders with Respect to Bankruptcy. To the fullest
extent permitted by law, the Owner Trustee shall not have the power to commence
a voluntary Proceeding in bankruptcy relating to the Issuer until one year and
one day after the Note Balance has been reduced to zero without the prior
written approval of each Certificateholder and the delivery to the Owner
Trustee by each Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Issuer is insolvent.


          SECTION
4.4. Restrictions
on Certificateholders’ Power. No Certificateholder shall direct the
Owner Trustee to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Issuer or the Owner Trustee
under this Agreement or


	
  

 	
  

 	
  

 
	
  

 	
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 any of the Transaction Documents or would be contrary to Section 2.3, nor shall the Owner
Trustee be obligated to follow any such direction, if given.


          SECTION
4.5. Majority Control. To the
extent that there is more than one Certificateholder, except as expressly
provided herein, any action which may be taken or consent or instructions which
may be given by the Certificateholders under this Agreement may be taken by
Certificateholders holding in the aggregate a percentage of the beneficial
interest in the Issuer equal to more than 50% of the beneficial interest in the
Issuer at the time of such action.


ARTICLE V


APPLICATION OF TRUST FUNDS; CERTAIN DUTIES


          SECTION
5.1. Application
of Trust Funds. Distributions on the Certificates shall be made on
behalf of the Issuer in accordance with the provisions of the Indenture and the
Sale and Servicing Agreement. Subject to the lien of the Indenture, the Owner
Trustee shall promptly distribute to the Certificateholders all other amounts
(if any) received by the Owner Trustee on behalf of the Issuer in respect of
the Trust Estate. After the termination of the Indenture in accordance with its
terms, the Owner Trustee shall distribute all amounts received (if any) by the
Owner Trustee on behalf of the Issuer in respect of the Trust Estate at the
direction of the Certificateholders. If any withholding tax is imposed on the
Issuer’s payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.1; provided that the Owner Trustee shall not
have an obligation to withhold any such amount if and for so long as the
Depositor is the sole Certificateholder. 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 Issuer (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 Issuer and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Owner Trustee may in its sole discretion withhold such amounts in accordance
with this Section 5.1. If a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.


          SECTION
5.2. Method
of Payment. Subject to the
Indenture, distributions required to be made to the
Certificateholders on any Payment Date and all amounts received by the Issuer
or the Owner Trustee on any other date that are payable to the
Certificateholders pursuant to this Agreement or any other Transaction Document
shall be made to the Certificateholders (i) by wire transfer, in immediately
available funds, to the account of each Certificateholder designated by such
Certificateholder to the Owner Trustee and Indenture Trustee in writing if such
Certificateholder shall have provided to the Owner Trustee and Indenture
Trustee appropriate written instructions at least five (5) Business Days prior
to such Payment Date, or (ii) by check 


	
  

 	
  

 	
  

 
	
  

 	
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mailed to such Certificateholder at the address designated by such
Certificateholder to the Owner Trustee and Indenture Trustee in writing.


          SECTION
5.3. Sarbanes-Oxley
Act. Notwithstanding anything to the contrary herein or in any
Transaction Document, the Owner Trustee shall not be required to execute,
deliver or certify in accordance with the provisions of the Sarbanes-Oxley Act
on behalf of the Issuer or any other Person, any periodic reports filed
pursuant to the Exchange Act, or any other documents pursuant to the
Sarbanes-Oxley Act.


          SECTION
5.4. Signature
on Returns. Subject to Section
2.6, the Certificateholders shall sign on behalf of the
Issuer the tax returns of the Issuer, unless applicable law requires the Owner
Trustee to sign such documents, in which case such documents shall be signed by
the Owner Trustee at the written direction of the Certificateholders.


          SECTION
5.5. Accounting
and Reports to Noteholders, Certificateholders, Internal Revenue Service and
Others. The Issuer shall, based on information provided by or on
behalf of the Depositor, (a) maintain (or cause to be maintained) the books of
the Issuer on a calendar year basis and the accrual method of accounting,
(b) deliver (or cause to be delivered) to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations, such information
as may be required to enable each Certificateholder to prepare its federal and
State income tax returns, (c) prepare (or cause to be prepared), file (or
cause to be filed) such tax returns relating to the Issuer (including a
partnership information return, IRS Form 1065 if the Issuer is treated as
a partnership for federal income tax purposes) and make such elections as may
from time to time be required or appropriate under any applicable State or
federal statute or rule or regulation thereunder so as to prevent the Issuer
from being taxed as a corporation, (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 5.1
with respect to income or distributions to Certificateholders. If the Issuer is
treated as a partnership for federal tax purposes the Issuer shall elect under
Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Receivables. The Issuer shall not
make the election provided under Section 754 of the Code.


ARTICLE VI


AUTHORITY AND DUTIES OF OWNER TRUSTEE


          SECTION
6.1. General
Authority. The Owner Trustee is authorized and directed to execute
and deliver on behalf of the Issuer (i) the Transaction Documents to which the
Issuer is named as a party, (ii) each certificate or other document attached as
an exhibit to or contemplated by the Transaction Documents to which the Issuer
or the Owner Trustee is named as a party and (iii) (provided proper written
instruction is received under this Article VI) any amendment thereto, in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee’s execution thereof, and the Owner Trustee is
further authorized, at the written direction of the Depositor, to direct the
Indenture Trustee to authenticate and deliver Class A-1 Notes in the aggregate
principal amount of $224,000,000, Class A-2 Notes in the aggregate principal amount of
$195,000,000, Class A-3 Notes in the aggregate principal amount of
$385,000,000, Class A-4 Notes in the aggregate principal amount


	
  

 	
  

 	
  

 
	
  

 	
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 of $176,000,000
and Class B Notes in the aggregate principal amount of $20,000,000. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be obligated,
to take all actions required of the Issuer pursuant to the Transaction
Documents. The Owner Trustee is further authorized from time to time to take
such action as the Depositor or the Administrator recommends or directs in
writing with respect to the Transaction Documents, except to the extent that
this Agreement expressly requires the consent of the Certificateholders for
such action.


          SECTION
6.2. General
Duties. It shall be the duty of the Owner Trustee to discharge (or
cause to be discharged) all of its responsibilities pursuant to the terms of
this Agreement and the other Transaction Documents and to administer the Issuer
in the interest of the Certificateholders, subject to Transaction 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 Transaction Documents to the extent
the Administrator has agreed in the Administration Agreement to perform any act
or to discharge any duty of the Issuer or the Owner Trustee hereunder or under
any Transaction Document, and the Owner Trustee shall not be liable for the
default or failure of the Administrator to carry out its obligations under the
Administration Agreement and shall have no duty to monitor the performance of
the Administrator or any other Person under the Administration Agreement or any
other document. The Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Receivables. The
Owner Trustee shall not be required to perform any of the obligations of the
Issuer under any Transaction Document that are required to be performed by the
Bank, the Servicer, the Depositor, the Administrator or the Indenture Trustee.


          SECTION
6.3. Action
upon Instruction. (a) Subject to Article IV, and in accordance
with the Transaction Documents, the Certificateholders may, by written
instruction, direct the Owner Trustee in the management of the Issuer. Such
direction may be exercised at any time by written instruction of the Certificateholders
pursuant to Article IV.


	
  

 	
  

 
	
  

 	
           (b)
 Subject to Section 7.1, the Owner Trustee shall not be required to
 take any action hereunder or under any Transaction Document if the Owner
 Trustee shall have reasonably determined or 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 Transaction 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 any
 Transaction Document or is unsure as to the application of any provision of
 this Agreement or any Transaction 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 shall promptly give notice (in
 such form as shall be appropriate under the circumstances) to the
 Certificateholders requesting instruction as to the course of action to be
 adopted or application of such provision, and to the extent the Owner Trustee
 acts or refrains from acting in good faith in accordance with any 

 






	
  

 	
  

 	
  

 
	
  

 	
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 written instruction of the Certificateholders 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 ten days of such notice (or within such shorter period of time as
 reasonably may be specified in such notice or may be necessary under the
 circumstances) it may, but shall be under no duty to, take or refrain from
 taking such action, not inconsistent with this Agreement or the Transaction
 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) 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, at the request, order or direction of any Certificateholder or
 any other Person, unless such Certificateholder or such Person has 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
 (including, without limitation, the reasonable fees and expenses of its
 counsel) therein or thereby, including such advances as the Owner Trustee
 shall reasonably request.

 


          SECTION
6.4. 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 Issuer or 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 6.3;
and no implied duties or obligations shall be read into this Agreement or any
Transaction 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
Commission filing (including any filings required under the Sarbanes-Oxley Act)
for the Issuer or to record this Agreement or any Transaction 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 that are not related to the ownership or the administration of the
Trust Estate. The Owner Trustee shall have no responsibility or liability for
or with respect to the genuineness, value, sufficiency or validity of the Trust
Estate.


          SECTION
6.5. 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 Transaction Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.


          SECTION
6.6. Restrictions.
The Owner Trustee shall not take any action (a) that is inconsistent with the
purposes of the Issuer set forth in Section 2.3 or (b) that, to
the actual knowledge of a Responsible Officer of the Owner Trustee, would (i)
affect the treatment of the Notes as indebtedness for federal income, state and
local income, franchise and value added tax 


	
  

 	
  

 	
  

 
	
  

 	
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purposes, (ii) be deemed to cause a taxable exchange of the Notes for
federal income or state income or franchise tax purposes or (iii) cause the
Issuer or any portion thereof to be treated as an association or publicly
traded partnership taxable as a corporation for federal income, state and local
income or franchise tax purposes. The Certificateholders shall not direct the
Owner Trustee to take action that would violate the provisions of this Section
6.6 (and, in the event any such direction is given by the Certificateholders
to the Owner Trustee, the Owner Trustee shall not be obligated to follow such
direction).


ARTICLE VII


CONCERNING OWNER TRUSTEE


          SECTION
7.1. 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 Transaction Documents and this Agreement. The
Owner Trustee shall not be personally liable or accountable hereunder or under
any Transaction Document under any circumstances notwithstanding anything
herein or in the Transaction Documents to the contrary, except (i) for its own
willful misconduct, bad faith or negligence, (ii) in the case of the inaccuracy
of any representation or warranty, expressly made by the Owner Trustee in its
individual capacity or any representation or warranty made by the Owner Trustee
in accordance with Section 11.13 or 11.14, (iii) for liabilities
arising from the failure of the Owner Trustee to perform obligations expressly
undertaken by it in the third sentence of Section 6.4 or (iv) for
taxes, fees or other charges on, based on or measured by, any fees, commissions
or compensation received by the Owner Trustee. In particular, but not by way of
limitation of the foregoing:


	
  

 	
  

 
	
  

 	
           (i) The
 Owner Trustee shall not be personally liable for any error of judgment made
 in good faith by any of its officers or employees unless it is proved that
 such Persons were negligent in ascertaining the pertinent facts;

 
	
  

 	
  

 
	
  

 	
           (ii) No
 provision of this Agreement shall require the Owner Trustee to expend or risk
 its personal funds or otherwise incur any financial liability in the exercise
 of its rights or powers hereunder;

 
	
  

 	
  

 
	
  

 	
           (iii)
 Under no circumstances shall the Owner Trustee be personally liable for any
 representation, warranty, covenant, obligation or indebtedness of the Issuer;
 and

 
	
  

 	
  

 
	
  

 	
           (iv) The
 Owner Trustee shall not be personally responsible for or in respect of the
 validity or sufficiency of this Agreement or for the due execution hereof by
 any Person other than the Owner Trustee.

 


          SECTION
7.2. Furnishing
of Documents. The Owner Trustee shall furnish to any
Certificateholder 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 Transaction Documents.


	
  

 	
  

 	
  

 
	
  

 	
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          SECTION
7.3. Representations
and Warranties. Wells Fargo hereby represents and warrants to the
Depositor for the benefit of the Certificateholders, that:


	
  

 	
  

 
	
  

 	
           (a) It is
 a Delaware limited purpose trust company duly incorporated and validly
 existing in good standing under the laws of the State of Delaware and having
 an office within 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) This
 Agreement constitutes a legal, valid and binding obligation of the Owner
 Trustee, enforceable against the Owner Trustee in accordance with its terms,
 subject, as to enforceability, to applicable bankruptcy, insolvency,
 reorganization, conservatorship, receivership, liquidation and other similar
 laws affecting enforcement of the rights of creditors of banks generally and
 to equitable limitations on the availability of specific remedies.

 
	
  

 	
  

 
	
  

 	
           (d)
 Neither the execution nor the delivery by it of this Agreement, nor the
 consummation by it of the transactions contemplated hereby nor compliance by
 it with any of the terms or provisions hereof will contravene any federal or
 Delaware law, governmental rule or regulation governing the banking or trust
 powers of the Owner Trustee or any judgment or order binding on it, or
 constitute any default under its charter documents or by-laws.

 


          SECTION
7.4. Reliance;
Advice of Counsel. (a) The Owner Trustee shall incur no personal
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 the 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,
secretary or other Authorized Officers or Responsible 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
 Transaction Documents, the Owner Trustee (i) may act directly or through its
 agents or attorneys pursuant to agreements entered into with any of them, but
 the Owner Trustee shall not be personally liable for the conduct or
 misconduct of such agents, custodians, nominees (including Persons acting
 under a power of attorney) or attorneys selected with reasonable care and
 (ii) may consult with counsel, accountants and other skilled Persons 

 






	
  

 	
  

 	
  

 
	
  

 	
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 knowledgeable in the relevant area to be selected with reasonable
 care and employed by it at the expense of the Issuer. The Owner Trustee shall
 not be personally 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.

 


          SECTION
7.5. Not
Acting in Individual Capacity. Except as provided in this Article
VII, in accepting the trusts hereby created, Wells Fargo acts solely as the
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 Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.


          SECTION
7.6. The
Owner Trustee May Own Notes. Wells Fargo in its individual or any
other capacity may become the owner or pledgee of Notes, and may deal with the
Depositor, the Indenture Trustee, the Administrator and their respective
Affiliates in banking transactions with the same rights as it would have if it
were not the Owner Trustee, and the Depositor, the Indenture Trustee, the
Administrator and their respective Affiliates may maintain normal commercial
banking relationships with the Owner Trustee and its Affiliates.


ARTICLE VIII


COMPENSATION AND INDEMNIFICATION OF OWNER
TRUSTEE


          SECTION
8.1. The
Owner Trustee’s Compensation. The Depositor shall cause the Servicer
to agree to pay to Wells Fargo pursuant to Section 3.11 of the Sale and
Servicing Agreement from time to time compensation for all services rendered by
Wells Fargo under this Agreement pursuant to a fee letter between the Servicer
and the Owner Trustee (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust). The
Servicer, pursuant to Section 3.11 of the Sale and Servicing Agreement
and the fee letter between the Servicer and the Owner Trustee, shall reimburse
Wells Fargo upon its request for all reasonable expenses, disbursements and
advances incurred or made by Wells Fargo in accordance with any provision of
this Agreement (including the reasonable compensation, expenses and
disbursements of such agents, experts and counsel as Wells Fargo may employ in
connection with the exercise and performance of its rights and its duties
hereunder), except any such expense as may be attributable to its willful
misconduct, negligence (other than an error in judgment) or bad faith. To the
extent not paid by the Servicer, such fees and reasonable expenses shall be
paid in accordance with Section 4.4 of the Sale and Servicing Agreement
or Section 5.4(b) of the Indenture, as applicable.


          SECTION
8.2. Indemnification.
The Depositor shall cause the Servicer to agree to indemnify the Owner Trustee
in its individual capacity and as trustee and its successors, assigns,
directors, officers, employees and agents (the “Indemnified Parties”)
from and against, any and all loss, liability, expense, tax, penalty or claim
(including reasonable legal fees and expenses) of any kind and nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against Wells Fargo in its individual capacity and as trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
Transaction Documents, the Trust Estate, the administration of the Trust Estate
or the action or inaction of the Owner Trustee hereunder; provided, however, that neither the
Depositor nor the Servicer shall be liable for or required to 


	
  

 	
  

 	
  

 
	
  

 	
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indemnify Wells Fargo from and against any of the foregoing expenses
arising or resulting from (i) Wells Fargo’s own willful misconduct, bad faith
or negligence, (ii) the inaccuracy of any representation or warranty contained
in Sections 7.3,
or made pursuant to Sections 11.13 and 11.14, expressly made by
the Owner Trustee in its individual capacity, (iii) liabilities arising from
the failure of the Owner Trustee to perform obligations expressly undertaken by
it in the third sentence of Section
6.4 or (iv) taxes, fees or other charges on, based on or
measured by, any fees, commissions or compensation received by the Owner
Trustee. To the extent not paid by the Servicer, such indemnification shall be
paid in accordance with Section 4.4 of the Sale and Servicing Agreement
or Section 5.4(b) of the Indenture, as applicable. 


          SECTION
8.3. Payments
to the Owner Trustee. Any amounts paid to the Owner Trustee pursuant
to this Article VIII and the Sale and Servicing Agreement shall be
deemed not to be a part of the Trust Estate immediately after such payment.


ARTICLE IX


TERMINATION OF TRUST AGREEMENT


          SECTION
9.1. Dissolution
of the Issuer. The Issuer shall wind up and dissolve upon the later
of (a) 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 and
(b) the discharge of the Indenture in accordance with Article IV of the
Indenture. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Issuer, nor (y) entitle any 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 Issuer or Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.


          SECTION
9.2. Winding Up of the Issuer.
Upon dissolution of the Issuer, the Owner Trustee shall, at the written
direction of the Administrator, wind up the business and affairs of the Issuer
as required by Section 3808 of the Statutory Trust Statute. Upon the
satisfaction and discharge of the Indenture, and receipt of a certificate from
the Indenture Trustee stating that all Noteholders have been paid in full and
that the Indenture Trustee is aware of no claims remaining against the Issuer
in respect of the Indenture and the Notes, the Owner Trustee, in the absence of
actual knowledge of any other claim against the Issuer and at the written
direction of the Certificateholders, shall be deemed to have made reasonable provision
to pay all claims and obligations (including conditional, contingent or
unmatured obligations) for purposes of Section 3808(e) of the Statutory Trust
Statute and shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Delaware Secretary of State in accordance
with the provisions of Section 3810 of the Statutory Trust Statute, at which
time the Issuer shall terminate and this Agreement (other than Article VIII)
shall be of no further force or effect.


          SECTION
9.3. Limitations on Termination.
Except as provided in Section 9.1, neither the Depositor nor any
Certificateholder shall be entitled to revoke, dissolve or terminate the
Issuer.


	
  

 	
  

 	
  

 
	
  

 	
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ARTICLE X


SUCCESSOR OWNER TRUSTEES AND ADDITIONAL

OWNER TRUSTEES


          SECTION
10.1. Eligibility
Requirements for the Owner Trustee. The Owner Trustee shall at all
times be a bank (i) authorized to exercise corporate trust powers, (ii) having
a combined capital and surplus of at least $50,000,000 and (iii) subject to
supervision or examination by Federal or state authorities. If such bank shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, 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. The Owner Trustee shall at all times
be an institution satisfying the provisions of Section 3807(a) of the Statutory
Trust Statute. 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 10.2.


          SECTION
10.2. Resignation
or Removal of the 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 Depositor, the Administrator, the Servicer, the Indenture
Trustee and each Certificateholder. Upon receiving such notice of resignation,
the Depositor and the Administrator, acting jointly, shall promptly appoint a
successor Owner Trustee which satisfies the eligibility requirements set forth
in Section 10.1 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee; provided, however, that such right
to appoint or to petition for the appointment of any such successor shall in no
event relieve the resigning Owner Trustee from any obligations otherwise
imposed on it under the Transaction Documents until such successor has in fact
assumed such appointment.


          If at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 10.1
and shall fail to resign after written request therefor by the Depositor or 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 Depositor or
the Administrator may remove the Owner Trustee. If the Depositor or the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Depositor and the Administrator, acting
jointly, 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 10.2
shall not become effective until 


	
  

 	
  

 	
  

 
	
  

 	
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acceptance of appointment by the successor Owner Trustee pursuant to Section 10.3
and payment of all fees and expenses owed to the outgoing Owner Trustee. The
Depositor shall provide (or shall cause to be provided) notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies and
the Indenture Trustee.


          SECTION
10.3. Successor
Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.2
shall execute, acknowledge and deliver to the Depositor, the Administrator and
to its predecessor Owner Trustee an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Owner Trustee shall become effective and such successor Owner Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as the 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 Depositor 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
10.3 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section
10.1.


          Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section 10.3,
the Depositor shall mail (or shall cause to be mailed) notice of the successor
of such Owner Trustee to each Certificateholder, Indenture Trustee, the
Noteholders and each of the Rating Agencies. If the Depositor shall fail to
mail (or cause to be mailed) such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Depositor.


          SECTION
10.4. Merger
or Consolidation of the Owner Trustee. Any 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, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder; provided, that such
corporation shall be eligible pursuant to Section 10.1; and provided, further that the
Owner Trustee shall mail notice of such merger or consolidation to the
Depositor, the Administrator and the Rating Agencies.


          SECTION
10.5. 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 may at
the time be located, the Depositor 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 Owner Trustee to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any 


	
  

 	
  

 	
  

 
	
  

 	
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part of the Trust Estate, and to vest in such Person, in such capacity,
such title to the Issuer, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Depositor and the Owner Trustee may consider necessary or desirable. If
the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1
and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section
10.3.


          Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:


	
  

 	
  

 
	
  

 	
           (i) all
 rights, powers, duties and obligations conferred or imposed upon 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 Issuer or any portion
 thereof in any such jurisdiction) shall be exercised and performed singly by
 such separate trustee or co-trustee, but solely at the direction of the Owner
 Trustee;

 
	
  

 	
  

 
	
  

 	
           (ii) no
 trustee under this Agreement shall be personally liable by reason of any act
 or omission of any other trustee under this Agreement; and

 
	
  

 	
  

 
	
  

 	
           (iii) the
 Depositor 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 X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with 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 copies thereof given to the Depositor and the Administrator.


          Any
separate trustee or co-trustee may at any time appoint the Owner Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on its behalf and in its name. If any separate trustee or co-trustee shall
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee. The Owner 


	
  

 	
  

 	
  

 
	
  

 	
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Trustee shall have no obligation to determine whether a co-trustee or
separate trustee is legally required in any jurisdiction in which any part of
the Trust Estate may be located.


ARTICLE XI


MISCELLANEOUS


          SECTION 11.1.
Amendments. (a) Any term or
provision of this Agreement may be amended by the Depositor and the Owner
Trustee without the consent of the Indenture Trustee, any Noteholder, the
Issuer or any other Person subject to subsections (e) and (f) of
this Section 11.1 and the satisfaction of one of the following
conditions:


	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (i) the
 Depositor delivers an Opinion of Counsel to the Indenture Trustee to the
 effect that such amendment will not materially and adversely affect the
 interests of the Noteholders;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (ii) the
 Depositor delivers an Officer’s Certificate of the Depositor to the Indenture
 Trustee to the effect that such amendment will not materially and adversely
 affect the interests of the Noteholders; or

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (iii) the
 Depositor delivers to the Indenture Trustee written confirmation from each
 Rating Agency that such amendment will not cause it to downgrade, qualify or
 withdraw its rating assigned to any of the Notes;

 
	
  

 	
  

 	
  

 
	
  

 	
           (b)
 Subject to subsections (e) and (f) of this Section 11.1,
 any term or provision of this Agreement may be amended by the Depositor and
 the Owner Trustee, without the consent of the Indenture Trustee, any
 Noteholder, the Issuer or any other Person to add, modify or eliminate any
 provisions as may be necessary or advisable in order to enable the Depositor,
 the Servicer or any of their Affiliates to comply with or obtain more
 favorable treatment under any law or regulation or any accounting rule or
 principle (whether now or in the future), it being a condition to any such
 amendment that the Rating Agency Condition shall have been satisfied.

 
	
  

 	
  

 
	
  

 	
           (c)
 Subject to subsections (e) and (f) of this Section 11.1,
 this Agreement may also be amended from time to time by the Depositor and the
 Owner Trustee, with the consent of the Holders of Notes evidencing not less
 than a majority of the aggregate principal amount of the Outstanding Notes of
 the Controlling Class, 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. It will not be
 necessary to obtain the consent of the Noteholders to approve the particular
 form of any proposed amendment or consent, but it will be sufficient if such
 consent approves the substance thereof. The manner of obtaining such consents
 (and any other consents of Noteholders provided for in this Agreement) and of
 evidencing the authorization of the execution thereof by Noteholders will be
 subject to such reasonable requirements as the Indenture Trustee may
 prescribe, including the establishment of record dates pursuant to the Note
 Depository Agreement.

 


 


	
  

 	
  

 	
  

 
	
  

 	
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           (d) Prior
 to the execution of any amendment to this Agreement, the Depositor shall
 provide written notification of the substance of such amendment to each
 Rating Agency and the Owner Trustee; and promptly after the execution of any
 such amendment or consent, the Depositor shall furnish a copy of such
 amendment or consent to each Rating Agency, the Owner Trustee and the
 Indenture Trustee. Any written confirmation received from any Rating Agency
 that an amendment will not cause it to downgrade, qualify or withdraw its
 rating on the Notes shall not create any presumption that such amendment does
 not materially and adversely affect the interests of the Noteholders.

 
	
  

 	
  

 
	
  

 	
           (e) Prior
 to the execution of any amendment to this Agreement, the Owner Trustee shall
 be entitled to receive and conclusively rely upon an Opinion of Counsel
 stating that the execution of such amendment is authorized or permitted by
 this Agreement and that all conditions precedent to the execution and
 delivery of such amendment have been satisfied. The Owner Trustee may, but
 shall not be obligated to, enter into any such amendment which materially and
 adversely affects the Owner Trustee’s own rights, privileges, indemnities,
 duties or obligations under this Agreement, the Transaction Documents or otherwise.
 Prior to the execution of any amendment to this Agreement without the consent
 of the Owner Trustee and Indenture Trustee, as applicable, such Person shall
 be entitled to receive an Opinion of Counsel to the effect that such
 amendment shall not materially and adversely affect the Owner Trustee’s or
 Indenture Trustee’s, as applicable, own rights, privileges, indemnities,
 duties or obligations under this Agreement; provided
 that such Opinion of Counsel shall not be given by counsel that is also an
 employee of the Depositor, the Servicer or their respective Affiliates.
 Furthermore, notwithstanding anything to the contrary herein, this Agreement
 may not be amended in any way that would materially and adversely affect the
 Owner Trustee’s own rights, privileges, indemnities, duties or obligations
 under this Agreement, the Transaction Documents or otherwise without the
 prior written consent of such Person.

 
	
  

 	
  

 
	
  

 	
           (f)
 Notwithstanding any provision of this Section 11.1 to the contrary,
 the permitted activities of the Issuer may be significantly changed only with
 the approval of the Holders of at least a majority of the Notes held by
 entities other than the Depositor, its Affiliates and its agents.

 


          SECTION
11.2. No
Legal Title to Trust Estate in Certificateholders. No
Certificateholder shall have legal title to any part of the Trust Estate. Each
Certificateholder shall be entitled to receive distributions with respect to
its undivided beneficial 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 a Certificateholder to and in its 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
11.3. Limitations
on Rights of Others. The provisions of this Agreement are solely for
the benefit of the Owner Trustee, the Depositor, the Administrator, the
Certificateholders and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express or
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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
11.4. Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given by facsimile with receipt
acknowledged by the recipient thereof or upon receipt personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested, if to the Owner Trustee, addressed as specified on Schedule II
to the Sale and Servicing Agreement; 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 any Certificateholder shall be
 given by first-class mail, postage prepaid, at the address of such
 Certificateholder as shall be designated by such party in a written notice to
 each other party. 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
11.5. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


          SECTION
11.6. Separate
Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and
the same instrument.


          SECTION
11.7. Successors
and Assigns. All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, the Depositor, 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
11.8. No
Petition. (a) Each of the Owner Trustee, by entering into this
Agreement, the Depositor, each Certificateholder, by accepting a Certificate,
and the Indenture Trustee and each Noteholder or Note Owner by accepting the
benefits of this Agreement, hereby covenants and agrees that prior to the date
which is one year and one day after payment in full of all obligations of each
Bankruptcy Remote Party in respect of all securities issued by the Bankruptcy
Remote Parties (i) such party shall not authorize any Bankruptcy Remote Party
to commence a voluntary winding-up or other voluntary case or other Proceeding
seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of an administrator, a trustee, receiver, liquidator, custodian or
other similar official with respect to such Bankruptcy Remote Party or any
substantial part of its property or to consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other Proceeding commenced against such Bankruptcy Remote Party, or to make
a general assignment for the benefit of, its creditors generally, any party
hereto or any other creditor of such Bankruptcy Remote Party, and (ii) such 


	
  

 	
  

 	
  

 
	
  

 	
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party shall not commence, join or institute against, with any other
Person, any Proceeding against such Bankruptcy Remote Party under any
bankruptcy, reorganization, arrangement, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction; provided, that the foregoing
shall in no way limit the rights of such parties to pursue any other creditor
rights or remedies that such Persons may have against the Issuer under
applicable law. Without limiting the foregoing, in no event shall the Owner
Trustee authorize, institute or join in any bankruptcy or similar Proceeding
described in the preceding sentence other than in accordance with Section
4.3.


	
  

 	
  

 
	
  

 	
           (b) The
 Depositor’s obligations under this Agreement are obligations solely of the
 Depositor and will not constitute a claim against the Depositor to the extent
 that the Depositor does not have funds sufficient to make payment of such
 obligations. In furtherance of and not in derogation of the foregoing, each
 of the Owner Trustee, by entering into or accepting this Agreement, each
 Certificateholder, by accepting a Certificate, and the Indenture Trustee and
 each Noteholder or Note Owner, by accepting the benefits of this Agreement,
 hereby acknowledges and agrees that such Person has no right, title or
 interest in or to the Other Assets of the Depositor. To the extent that,
 notwithstanding the agreements and provisions contained in the preceding
 sentence, each of the Owner Trustee, the Indenture Trustee, each Noteholder
 or Note Owner and each Certificateholder either (i) asserts an interest or
 claim to, or benefit from, Other Assets, or (ii) is deemed to have any such
 interest, claim to, or benefit in or from Other Assets, whether by operation
 of law, legal process, pursuant to applicable provisions of insolvency laws
 or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code
 or any successor provision having similar effect under the Bankruptcy Code),
 then such Person further acknowledges and agrees that any such interest,
 claim or benefit in or from Other Assets is and will be expressly
 subordinated to the indefeasible payment in full, which, under the terms of
 the relevant documents relating to the securitization or conveyance of such
 Other Assets, are entitled to be paid from, entitled to the benefits of, or
 otherwise secured by such Other Assets (whether or not any such entitlement
 or security interest is legally perfected or otherwise entitled to a priority
 of distributions or application under applicable law, including insolvency
 laws, and whether or not asserted against the Depositor), including the
 payment of post-petition interest on such other obligations and liabilities.
 This subordination agreement will be deemed a subordination agreement within
 the meaning of Section 510(a) of the Bankruptcy Code. Each of the Owner
 Trustee, by entering into or accepting this Agreement, each
 Certificateholder, by accepting a Certificate, and the Indenture Trustee and
 each Noteholder or Note Owner, by accepting the benefits of this Agreement,
 hereby further acknowledges and agrees that no adequate remedy at law exists
 for a breach of this Section and the terms of this Section may be enforced by
 an action for specific performance. The provisions of this Section will be for
 the third party benefit of those entitled to rely thereon and will survive
 the termination of this Agreement.

 


          SECTION
11.9. 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.


	
  

 	
  

 	
  

 
	
  

 	
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          SECTION 11.10. 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
11.11. [Reserved].


          SECTION
11.12. Waiver
of Jury Trial. To the extent permitted by applicable law, each party
hereto irrevocably waives all right of trial by jury in any action, Proceeding
or counterclaim based on, or arising out of, under or in connection with this
Agreement, any other Transaction Document, or any matter arising hereunder or
thereunder.


          SECTION
11.13. Information
Requests. The parties hereto shall provide any information
reasonably requested by the Bank, the Servicer, the Issuer, the Depositor or
any of their Affiliates at the expense of the Bank, the Servicer, the Issuer,
the Depositor or any of their Affiliates, as applicable, in order to comply
with or obtain more favorable treatment under any current or future law, rule,
regulation, accounting rule or principle.


          SECTION
11.14. Form
10-D and Form 10-K Filings. So long as the Depositor is filing
Exchange Act Reports with respect to the Issuer (i) no later than each Payment
Date, the Owner Trustee shall notify the Depositor of any Form 10-D Disclosure
Item with respect to the Owner Trustee, together with a description of any such
Form 10-D Disclosure Item in form and substance reasonably acceptable to the
Depositor and (ii) no later than March 15 of each calendar year, commencing
March 15, 2010, the Owner Trustee shall notify the Depositor in writing of any
affiliations or relationships between the Owner Trustee and any Item 1119
Party; provided,
that (except as provided in the following sentence) no such notification need
be made if the affiliations or relationships are unchanged from those provided
in the notification in the prior calendar year. Notwithstanding the foregoing,
on or before March 15 of each calendar year for so long as the Depositor is
filing Exchange Act Reports with respect to the Issuer, commencing on March 15,
2010, the Owner Trustee shall deliver to the Depositor the certification
substantially in the form attached hereto as Exhibit B or such form as
mutually agreed upon by the Depositor and the Owner Trustee regarding any
affiliations or relationships (as contemplated in Item 1119 of Regulation AB)
between the Owner Trustee and any Item 1119 Party and any Form 10-D Disclosure
Item.


          SECTION
11.15. Form
8-K Filings. So long as the Depositor is filing Exchange Act Reports
with respect to the Issuer, the Owner Trustee shall promptly notify the
Depositor, but in no event later than five (5) Business Days after its
occurrence, of any Reportable Event of which a Responsible Officer of the Owner
Trustee has actual knowledge (other than a Reportable Event described in clause
(a) or (b) of the definition thereof as to which the Depositor or
the Servicer has actual knowledge). The Owner Trustee shall be deemed to have
actual knowledge of any such event to the extent that it relates to the Owner
Trustee or any action by the Owner Trustee under this Agreement.


	
  

 	
  

 	
  

 
	
  

 	
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 Amended and
 Restated Trust Agreement

 (USAA 2009-2)

 









[Remainder of Page Intentionally Left Blank]


	
  

 	
  

 	
  

 
	
  

 	
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 Amended and
 Restated Trust Agreement

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          IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective officers hereunto duly authorized as of the day and year first
above written.


	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO DELAWARE TRUST COMPANY,

 
	
  

 	
 as Owner
 Trustee

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 






	
  

 	
  

 	
  

 
	
  

 	
 S-1

 	
 Amended and
 Restated Trust Agreement

 (USAA 2009-2)

 













	
  

 	
  

 	
  

 
	
  

 	
 USAA ACCEPTANCE, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name: Edwin
 T. McQuiston

 
	
  

 	
 Title:
 Senior Vice President and Treasurer

 






	
  

 	
  

 	
  

 
	
  

 	
 S-2

 	
 Amended and
 Restated Trust Agreement

 (USAA 2009-2)

 










EXHIBIT A


FORM OF CERTIFICATE


	
  

 	
  

 
	
 NUMBER

 	
 [___]% BENEFICIAL INTEREST  

 
	
 R-[__]

 	
  

 


USAA AUTO OWNER TRUST 2009-2


CERTIFICATE


          Evidencing
the [___]% beneficial interest in all of the assets of the Issuer (as defined
below), which consist primarily of motor vehicle receivables, including motor
vehicle retail installment loans that are secured by new and used automobiles
and light-duty trucks.


          (This Certificate does not represent an interest in or
obligation of USAA Acceptance, LLC, USAA Federal Savings Bank or any of their
respective Affiliates, except to the extent described below.)


          THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR “BLUE SKY” LAWS OF ANY STATE OR OTHER JURISDICTION,
AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR “BLUE SKY” LAWS, PURSUANT TO AN EXEMPTION
THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.


          NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD (IN THE
INITIAL ACQUISITION OR THROUGH A TRANSFER) BY OR FOR THE ACCOUNT OF OR WITH THE
ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”)) THAT IS
SUBJECT TO TITLE I OF ERISA, (B) A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED OR (C) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF AN EMPLOYEE BENEFIT PLAN’S OR A PLAN’S
INVESTMENT IN THE ENTITY.


          THIS
CERTIFIES THAT [___________] is the registered owner of a [___]% nonassessable,
fully-paid beneficial interest in the Trust Estate of USAA AUTO OWNER TRUST 2009-2,
a Delaware statutory trust (the “Issuer”) formed by USAA Acceptance, LLC, a Delaware limited
liability company, as depositor (the “Depositor”).


          The Issuer
was created pursuant to a Trust Agreement dated as of October 19, 2009 (as
amended and restated as of November 13, 2009, the “Trust Agreement”), between the Depositor
and Wells Fargo Delaware Trust Company, as owner trustee (the “Owner Trustee”), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in 


A-1





Appendix A to the Sale and Servicing
Agreement, dated as of November 13, 2009, among the Depositor, the Issuer, The
Bank of New York Mellon as indenture trustee, and USAA Federal Savings Bank, as
servicer, as the same may be amended or supplemented from time to time.


          This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The provisions and conditions of the Trust Agreement are hereby
incorporated by reference as though set forth in their entirety herein.


          The Holder
of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights of
the Noteholders as described in the Indenture, the Sale and Servicing Agreement
and the Trust Agreement, as applicable.


          THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


          By
accepting this Certificate, the Certificateholder hereby covenants and agrees
that prior to the date which is one year and one day after payment in full of
all obligations of each Bankruptcy Remote Party in respect of all securities
issued by the Bankruptcy Remote Parties (i) such Person shall not authorize
such Bankruptcy Remote Party to commence a voluntary winding-up or other
voluntary case or other Proceeding seeking liquidation, reorganization or other
relief with respect to such Bankruptcy Remote Party or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Bankruptcy Remote Party or any substantial part of its property or to consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other Proceeding commenced against such
Bankruptcy Remote Party, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii)
such Person shall not commence or join with any other Person in commencing any
Proceeding against such Bankruptcy Remote Party under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction.


          By
accepting and holding this Certificate (or any interest herein), the Holder
hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and is not purchasing on behalf of a Benefit Plan.


          It is the
intention of the parties to the Trust Agreement that, solely for income, franchise
and value added tax purposes, (i) so long as there is a single
Certificateholder, the Issuer will be disregarded as an entity separate from
such Certificateholder, and if there is more than one Certificateholder, the
Issuer will be treated as a partnership and (ii) the Notes will be


Trust Certificate 





characterized as debt. By accepting this Certificate, the
Certificateholder agrees to take no action inconsistent with the foregoing
intended tax treatment.


          By
accepting this Certificate, the Certificateholder acknowledges that this
Certificate represents the entire beneficial interest in the Issuer only and
does not represent interests in or obligations of the Depositor, the Servicer,
the Administrator, the Owner Trustee, the Indenture Trustee or any of their
respective Affiliates and no recourse may be had against such parties or their
assets, except as expressly set forth or contemplated in this Certificate, the
Trust Agreement or any other Transaction Document.


Trust Certificate





          IN
WITNESS WHEREOF, the Issuer has caused this Certificate to be duly executed.


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 USAA AUTO OWNER TRUST 2009-2

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: Wells
 Fargo Delaware Trust Company, not in its individual capacity, but solely as
 Owner Trustee

 
	
  

 	
  

 	
  

 	
  

 
	
 Dated:

 	
  

 	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By:

 	
  

 
	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
  

 	
 Title:

 


Trust Certificate





OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION


          This
is the Certificate referred to in the within-mentioned Trust Agreement.


	
  

 	
  

 	
  

 
	
  

 	
 WELLS FARGO DELAWARE TRUST COMPANY,
 not in its individual capacity but solely as Owner Trustee

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Authorized
 Signatory

 


Trust Certificate





EXHIBIT B


FORM
OF OWNER TRUSTEE’S ANNUAL CERTIFICATION

REGARDING ITEM 1117 AND ITEM 1119 OF REGULATION AB


          Reference
is made to the Form 10-K of USAA Acceptance, LLC with respect to USAA Auto
Owner Trust 2009-2 (the “Form 10-K”) for the fiscal year ended December
31, 20[ ]. Capitalized terms used but not otherwise defined herein shall have
the respective meanings given to them in the Form 10-K.


          Wells Fargo
Delaware Trust Company, a Delaware limited purpose trust company (“Wells
Fargo”), does hereby certify to the Sponsor, the Depositor and the Issuing
Entity that:


          1. As of
the date of the Form 10-K, there are no pending legal proceedings against Wells
Fargo or proceedings known to be contemplated by governmental authorities
against Wells Fargo that would be material to the investors in the Notes.


          2. As of
the date of the Form 10-K, there are no affiliations, as contemplated by Item
1119 of Regulation AB, between Wells Fargo and any of USAA Federal Savings Bank
(in its capacity as Sponsor, Originator, Servicer and Administrator), USAA
Acceptance, LLC, the Indenture Trustee and the Issuing Entity, or any
affiliates of such parties.


          IN WITNESS
WHEREOF, Wells Fargo has caused this certificate to be executed in its
corporate name by an officer thereunto duly authorized.


	
  

 	
  

 	
  

 
	
 Dated:
 ____________, 20[   ]

 	
  

 	
  

 
	
  

 	
 WELLS FARGO DELAWARE TRUST COMPANY,

 as Owner Trustee

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
 Name:

 
	
  

 	
 Title:

 


B-1