Exhibit 4.2



 





Exhibit 4.2




DRIVE AUTO RECEIVABLES TRUST 20[  ]-[  ]




AMENDED AND RESTATED

TRUST AGREEMENT




between




DRIVE AUTO RECEIVABLES LLC,

as the Depositor




and




[___],

as the Owner Trustee




Dated as of [_________], 20[ ]




 









 





CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.1. Capitalized Terms
	 	 	1	 
	SECTION 1.2. Other Interpretive Provisions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II ORGANIZATION
	 	 	 	 
	 
	 	 	 	 
	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
	 	 	4	 
	SECTION 2.9. Representations and Warranties of the Seller
	 	 	4	 
	SECTION 2.10. Situs of Issuer
	 	 	5	 
	SECTION 2.11. Federal Income Tax Treatment of the Issuer
	 	 	5	 
	SECTION 2.12. Covenants of the Residual Interestholders
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.1. Initial Ownership
	 	 	7	 
	SECTION 3.2. Authentication of the Certificates
	 	 	7	 
	SECTION 3.3. [Reserved]
	 	 	7	 
	SECTION 3.4. Registration of the Residual Interests
	 	 	7	 
	SECTION 3.5. Transfer of the Certificate
	 	 	8	 
	SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates
	 	 	10	 
	SECTION 3.7. Access to List of Residual Interestholders’ Names and Addresses
	 	 	10	 
	 
	 	 	 	 
	ARTICLE IV ACTIONS BY OWNER TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.1. Prior Notice to Residual Interestholder with Respect to Certain Matters
	 	 	11	 
	SECTION 4.2. Action by Residual Interestholder with Respect to Certain Matters
	 	 	11	 






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CONTENTS





	 	 	 	 	 
	 	 	Page
	SECTION 4.3. Action by Residual Interestholder with Respect to Bankruptcy
	 	 	11	 
	SECTION 4.4. Restrictions on Residual Interestholder’s Power
	 	 	12	 
	SECTION 4.5. Majority Control
	 	 	12	 
	SECTION 4.6. [Rights of the Insurer
	 	 	12	 
	SECTION 4.7. Covenants of the Issuer, the Owner Trustee and the Residual Interestholders
	 	 	12	 
	 
	 	 	 	 
	ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.1. Application of Trust Funds
	 	 	14	 
	SECTION 5.2. Method of Payment
	 	 	14	 
	SECTION 5.3. Sarbanes-Oxley Act
	 	 	14	 
	SECTION 5.4. Signature on Returns; Tax Matters Partner
	 	 	14	 
	SECTION 5.5. Accounting and Records to the Residual Interestholders, the Internal Revenue Service and Others
	 	 	14	 
	 
	 	 	 	 
	ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.1. General Authority
	 	 	15	 
	SECTION 6.2. General Duties
	 	 	15	 
	SECTION 6.3. Action upon Instruction
	 	 	16	 
	SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions
	 	 	17	 
	SECTION 6.5. No Action Except under Specified Documents or Instructions
	 	 	17	 
	SECTION 6.6. Restrictions
	 	 	17	 
	 
	 	 	 	 
	ARTICLE VII CONCERNING OWNER TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.1. Acceptance of Trusts and Duties
	 	 	18	 
	SECTION 7.2. Furnishing of Documents
	 	 	19	 
	SECTION 7.3. Representations and Warranties
	 	 	19	 
	SECTION 7.4. Reliance; Advice of Counsel
	 	 	20	 
	SECTION 7.5. Not Acting in Individual Capacity
	 	 	20	 
	SECTION 7.6. The Owner Trustee May Own Residual Interests and Notes
	 	 	20	 
	SECTION 7.7. Owner Trustee Not Liable for Certificates or Contracts
	 	 	21	 
	SECTION 7.8. Payments from Trust Estate
	 	 	21	 
	SECTION 7.9. Doing Business in Other Jurisdictions
	 	 	21	 






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CONTENTS





	 	 	 	 	 
	 	 	Page
	ARTICLE VIII COMPENSATION OF OWNER TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.1. The Owner Trustee’s Fees and Expenses
	 	 	22	 
	SECTION 8.2. Indemnification
	 	 	22	 
	SECTION 8.3. Payments to the Owner Trustee
	 	 	22	 
	SECTION 8.4. Non-Recourse Obligations
	 	 	22	 
	 
	 	 	 	 
	ARTICLE IX TERMINATION OF TRUST AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.1. Termination of Trust Agreement
	 	 	23	 
	SECTION 9.2. Dissolution of the Issuer
	 	 	23	 
	SECTION 9.3. Limitations on Termination
	 	 	23	 
	 
	 	 	 	 
	ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.1. Eligibility Requirements for the Owner Trustee
	 	 	23	 
	SECTION 10.2. Resignation or Removal of the Owner Trustee
	 	 	24	 
	SECTION 10.3. Successor Owner Trustee
	 	 	24	 
	SECTION 10.4. Merger or Consolidation of the Owner Trustee
	 	 	25	 
	SECTION 10.5. Appointment of Co-Trustee or Separate Trustee
	 	 	25	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.1. Amendments
	 	 	26	 
	SECTION 11.2. No Legal Title to Trust Estate in Residual Interestholder
	 	 	28	 
	SECTION 11.3. Limitations on Rights of Others
	 	 	28	 
	SECTION 11.4. Notices
	 	 	28	 
	SECTION 11.5. Severability
	 	 	28	 
	SECTION 11.6. Separate Counterparts
	 	 	28	 
	SECTION 11.7. Successors and Assigns
	 	 	28	 
	SECTION 11.8. No Petition
	 	 	29	 
	SECTION 11.9. Information Request
	 	 	30	 
	SECTION 11.10. Headings
	 	 	30	 
	SECTION 11.11. Governing Law
	 	 	30	 
	SECTION 11.12. Information to Be Provided by the Owner Trustee
	 	 	30	 






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     This AMENDED AND RESTATED TRUST AGREEMENT is made as of [___], 20[ ] (as from time to
time amended, supplemented or otherwise modified and in effect, this “Agreement”) between
Drive Auto Receivables LLC, a Delaware limited liability company, as the depositor (the
“Seller”), and [___], a Delaware [___], as the owner trustee (the “Owner
Trustee”).



RECITALS




     WHEREAS, the Seller and the Owner Trustee entered into that certain Trust Agreement dated as
of [___], 20[ ] (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”) by and among the Issuer, the Seller, Drive Consumer USA Inc., as
Servicer, and [___], 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 generally accepted accounting principles;
(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.



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ARTICLE II




ORGANIZATION




     SECTION 2.1. Name. The trust created under the Original Trust Agreement shall be known as
“Drive Auto Receivables Trust 20[ ]-[ ]” (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 the Residual Interestholder, the Seller 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, if so requested by the Residual
Interestholder, to issue 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 to the Residual Interestholder, if any;




     (b) to enter into and perform its obligations under any interest rate protection
agreement or agreements relating to the Notes between the Issuer and one or more
counterparties, including any confirmations, evidencing the transactions thereunder, each
of which is an interest rate swap, an interest rate cap, an obligation to enter into any of
the foregoing, or any combination of any of the foregoing;




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




     (d) to assign, grant, transfer, pledge, mortgage and convey the Trust Estate pursuant
to the Indenture and to hold, manage and distribute to the Residual Interestholder any
portion of the Trust Estate released from the lien of, and remitted to the Issuer pursuant
to, the Indenture;




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




     (f) 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;




     (g) 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


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and the making of distributions to the Residual Interestholder, if any, and the
Noteholders; and




     (h) at any time [with the prior consent of the Insurer], enter into derivatives
transactions.



     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.



     SECTION 2.4. Appointment of the Owner Trustee. The Seller hereby appoints the Owner Trustee
as trustee of the Issuer effective as of the date hereof, 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 Seller 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 Seller, 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 Residual Interestholder, subject to the obligations of the Issuer under the Transaction
Documents. It is the intention 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 intention of the parties hereto that, solely for income and
franchise tax purposes, the Issuer will be disregarded as an entity separate from the Seller, the
Seller will be disregarded as an entity separate from Drive Consumer USA Inc. 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 and the Residual Interestholders will file returns, reports
and other forms consistent with the characterization of the Issuer as a partnership, and this
Agreement shall be amended in accordance with Section 11.1 to include such provisions as
may be required under Subchapter K of the Code. 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.



     SECTION 2.7. Organizational Expenses; Liabilities of the Holders.



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3









 






     (a) The Servicer shall pay organizational expenses of the Issuer as they may arise.




     (b) No Residual Interestholder (including the Seller) 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 of the Trust Estate shall be
vested at all times in the Issuer as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee or a separate trustee, as the
case may be. The Holders shall not have legal title to any part of the Trust Estate. The Holders
shall be entitled to receive distributions with respect to their beneficial ownership interest
therein only in accordance with Article V of the Sale and Servicing Agreement and Article
IX hereof. No transfer, by operation of law or otherwise, of any right, title or interest by
any Residual Interestholder of 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 2.9. Representations and Warranties of the Seller. The Seller hereby represents and
warrants to the Owner Trustee that:




     (a) Organization and Good Standing. The Seller is a Delaware limited liability
company duly organized and validly existing with power and authority to own its properties
and to conduct its business as such properties are currently owned and such business is
presently conducted and is proposed to be conducted pursuant to this Agreement and the
other Transaction Documents.




     (b) Due Qualification. The Seller is duly qualified to do business as a limited
liability company in good standing, and has obtained all necessary licenses and approvals,
in all jurisdictions in which the ownership or lease of its property, the conduct of its
business and the performance of its obligations under this Agreement and the other
Transaction Documents requires such qualification.




     (c) Power and Authority. The Seller has the power and authority to execute and
deliver this Agreement and the other Transaction Documents to which it is a party and to
carry out their respective terms; the Seller has full power and authority to sell and
assign the property to be sold and assigned to and deposited with the Issuer and the Seller
has duly authorized such sale and assignment and deposit to the Issuer by all necessary
action; and the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party have been duly authorized by the Seller by all
necessary action.




     (d) Enforceability. The Seller has (i) duly executed and delivered this Agreement,
the other Transaction Documents to which it is a party and the Underwriting Agreement; and
(ii) this Agreement, the other Transaction Documents to which it is a party and the
Underwriting Agreement constitute legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with their terms, and subject to



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4









 






applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization
and similar laws now or hereafter in effect relating to creditors’ rights generally and
subject to general principles of equity (whether applied in a proceeding at law or in
equity).




     (e) No Consent Required. No consent, license, approval or authorization or
registration or declaration with, any Person or with any governmental authority, bureau or
agency is required in connection with the execution, delivery or performance of this
Agreement and the other Transaction Documents, except for such as have been obtained,
effected or made.




     (f) No Violation. The consummation of the transactions contemplated by this
Agreement, the Underwriting Agreement and the other Transaction Documents to which it is a
party and the fulfillment of the terms hereof and thereof do not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the limited liability company agreement of the Seller, or
any material indenture, agreement or other instrument to which the Seller is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other instrument
(other than pursuant to the Transaction Documents); nor violate any law or any order, rule
or regulation applicable to the Seller of any court or of any federal or State regulatory
body, administrative agency or other governmental instrumentality having jurisdiction over
the Seller or its properties.




     (g) No Proceedings. There are no proceedings or investigations pending or, to the
Seller’s knowledge, threatened against the Seller before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having jurisdiction
over it or its properties: (i) asserting the invalidity of this Agreement or any of the
other Transaction Documents; (ii) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or any of the other
Transaction Documents; (iii) seeking any determination or ruling that might materially and
adversely affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Transaction Documents; or (iv)
seeking to adversely affect the federal income tax or other federal, state or local tax
attributes of the Securities.



     SECTION 2.10. Situs of Issuer. The Issuer shall be located and administered in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Issuer shall be
located in the State of Delaware or the State of New York. The Issuer shall not have any employees
in any state; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee
from having employees within or without the State of Delaware. Payments will be received by the
Issuer only in Delaware or New York and payments will be made by the Issuer only from Delaware or
New York.



     SECTION 2.11. Federal Income Tax Treatment of the Issuer.



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5









 






     (a) For so long as the Issuer has a single owner for federal income tax purposes, it
will, pursuant to Treasury Regulations promulgated under Section 7701 of the Code, be
disregarded as an entity distinct from the Residual Interestholder for all federal income
tax purposes. Accordingly, for federal income tax purposes, the Residual Interestholder
will be treated as: (i) owning all assets owned by the Issuer; (ii) having incurred all
liabilities incurred by the Issuer; and (iii) all transactions between the Issuer and the
Residual Interestholder will be disregarded.




     (b) Neither the Owner Trustee nor any Residual Interestholder will, under any
circumstances, and at any time, make an election on IRS Form 8832 or otherwise, to classify
the Issuer as an association taxable as a corporation for federal, State or any other
applicable tax purpose.



     SECTION 2.12. Covenants of the Residual Interestholders. Each Residual Interestholder by
becoming a beneficial owner of the Residual Interest agrees:




     (a) to be bound by the terms and conditions of the Certificates to the extent the
Residual Interest is certificated of which such Certificateholder is the beneficial owner
and to perform the obligations of a Residual Interestholder as set forth therein; this
undertaking is made for the benefit of the Issuer, the Owner Trustee[, the Insurer (so long
as it is the Controlling Party)] and all other Residual Interestholders present and future.




     (b) to the appointment of the Seller as such Residual Interestholder’s agent and
attorney-in-fact to sign any federal income tax information return filed on behalf of the
Issuer and, if requested by the Issuer, to sign such federal income tax information return
in its capacity as holder of an interest in the Issuer.




     (c) that all transactions and agreements between the Issuer on the one hand, and any
of the Owner Trustee, the Indenture Trustee, the Seller and any Residual Interestholder on
the other hand, shall reflect the separate legal existence of each entity and will be
formally documented in writing.




     (d) not to take any position in such Residual Interestholder’s tax returns
inconsistent with those taken in any tax returns filed by the Issuer.




     (e) if such Residual Interestholder is other than an individual or other entity
holding its Certificate through a broker who reports securities sales on Form 1099-B, to
notify the Owner Trustee in writing of any transfer by it of a Certificate in a taxable
sale or exchange, within 30 days of the date of the transfer.




     (f) Except in accordance with Section 4.3, until one year and one day after
the completion of the events specified in Section 9.2, each Residual Interestholder
agrees not, for any reason, to institute proceedings for the Issuer or the Seller to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against the Issuer or the Seller, or file a petition seeking or
consenting to reorganization or relief under any applicable federal or State law relating
to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or



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6









 






other similar official of the Issuer or the Seller or a substantial part of its
property, or cause or permit the Issuer or the Seller to make any assignment for the
benefit of its creditors or to admit in writing its inability to pay its debts generally as
they become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.



ARTICLE III




RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES




     SECTION 3.1. Initial Ownership. As of the Closing Date, the Residual Interest shall be
certificated and will be issued in the form of a typewritten Certificate representing a definitive
Certificate and shall be registered in the name of “Drive Auto Receivables LLC” as the initial
registered owner thereof



     SECTION 3.2. Authentication of the Certificates.




     (a) The Seller, in its sole discretion, may request the Owner Trustee to issue a
Certificate or Certificates to represent the Residual Interest. Upon request by the Seller
pursuant to this Section 3.2(a), 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 Seller, 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 Seller.




     (b) To the extent the Residual Interest is certificated, the Certificates shall be
executed on behalf of the Issuer by manual or facsimile signature of an authorized officer
of the Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Issuer, shall be validly issued and entitled to the benefit of
this Agreement, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of authentication and delivery of such Certificates. A
transferee of a Certificate shall become a Certificateholder, and shall be entitled to the
rights and subject to the obligations of a Residual Interestholder hereunder, upon due
registration of such Certificate in such transferee’s name pursuant to Section 3.4.



     SECTION 3.3. [Reserved]



     SECTION 3.4.Registration of the Residual Interests. The Certificate Registrar shall keep or
cause to be kept, at the Corporate Trust Office, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Owner Trustee shall provide for the registration of
Residual Interests and of transfers and exchanges of Residual Interests as herein provided.
[___] shall be the initial Certificate Registrar. The Certificate Registrar shall
provide the Indenture Trustee and the Controlling Party with a list of the names and addresses of



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the Residual Interestholders on the Closing Date, to the extent such information has been
provided to the Certificate Registrar and in the form provided to the Certificate Registrar on such
date. Upon any transfers of Certificates, the Certificate Registrar shall notify the Controlling
Party of the name and address of the transferee in writing, by facsimile, on the day of such
transfer.



     SECTION 3.5. Transfer of the Certificate. (a) The Certificateholder may assign, convey or
otherwise transfer all or any of its right, title and interest in the Certificate; provided, that
(i) the Rating Agency Condition is satisfied, (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 a publicly traded partnership for federal income tax purposes, (iii) the
Certificate may not be acquired by or for the account of or with the assets of (a) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provision of Title I of
ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose underlying
assets include plan assets by reason of an employee benefit plan’s or other plan’s investment in
the entity and (iv) if the Certificateholder is a governmental plan, certain church plan or foreign
plan, it shall be deemed to represent, warrant and covenant that its acquisition, holding and
disposition of the Certificate or interest therein will not result in a nonexempt prohibited
transaction under, or a violation of, any applicable law that is substantially similar to ERISA or
Section 4975 of the Code; provided, further, that the number of Certificateholders at no time may
exceed 95 as determined for tax purposes under Section 7704 of the Code and that the transfer of
the Certificate to such transferee will not result in the Issuer becoming a publicly traded
partnership for U.S. federal income tax purposes. Subject to the transfer restrictions contained
herein and in the Certificate, the 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. Upon surrender for registration of
transfer of any Certificate at the Corporate Trust Office, 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 shall execute, authenticate and deliver (or shall cause
[___] as its authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in authorized denominations of a
like class and aggregate face amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Certificateholder, Certificates may be exchanged for
other Certificates in authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the Corporate Trust Office.




     (b) (i) Every Certificate presented or surrendered for registration of transfer or
exchange may be made by the 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 in form satisfactory to the Owner Trustee and the
Certificate Registrar and with such signature guaranteed by an “eligible guarantor
institution” meeting the requirements of the Certificate Registrar, which requirements
include membership or participation in STAMP or such other “signature guarantee program” as
may be determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, and evidence of authority of the Persons signing the instrument of transfer as the
Owner Trustee may reasonably require. In the event a transferor transfers only a portion
of its beneficial interest in the Issuer, the Owner



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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 the Person in whose name any Certificate is registered as the sole
owner of the beneficial interest in the Issuer evidenced by such Certificate.




     (ii) No service charge shall be made for any registration of transfer or
exchange of Certificates under this Section 3.5, but the Owner Trustee or
the Certificate Registrar 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 any transfer or exchange of Certificates.




     (c) The Owner Trustee shall not be obligated to register any transfer of a Residual
Interest 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.
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 a Certificate (or economic interest
therein), whether to a Certificateholder or to a person who is not a Certificateholder,
shall be effective, and any such transfer (or purported transfer) shall be void ab initio,
and no person shall otherwise become a Certificateholder, and none of the Issuer, the Owner
Trustee or any of the Residual Interestholders will recognize such transfer (or purported
transfer), unless the transferee has first represented and warranted in writing to the
Issuer and the Residual Interestholders that:




     (i) it is acquiring the Certificates for its own account and is the sole
beneficial owner of such Certificates;




     (ii) it is not a Benefit Plan;




     (iii) the transfer is not being effected on or through (x) an “established
securities market” within the meaning of Section 7704(a)(1) of the Code, including
without limitation, an over-the-counter market or an interdealer quotation system
that regularly disseminates firm buy or sell quotations or (y) a “secondary market”
or “substantial equivalent thereof” within the meaning of Section 7704(a)(2) of the
Code and any proposed, temporary or final Treasury regulations thereunder; and




     (iv) such transfer will not cause the Issuer to be classified as a publicly
traded partnership for U.S. federal income tax purposes, and such purchaser or
transferee will not take any action, including any subsequent disposition of such
Certificates or economic interest therein, that would cause the Issuer to be treated
as a publicly traded partnership for U.S. federal income tax purposes.




     (e) The Certificates have not been registered under the Securities Act or any State
securities laws. The Certificate Registrar shall not register the transfer of any



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Certificate or unless such resale or transfer is: (i) pursuant to an effective
registration statement under the Securities Act; (ii) to the Seller; or (iii) unless it
shall have received a representation letter or such other representations and an Opinion of
Counsel satisfactory to the Seller and, prior to the Termination Date, the Controlling
Party, to the effect that such resale or transfer is made (A) in a transaction exempt from
the registration requirements of the Securities Act and applicable State securities laws or
(B) to a Person who the transferor of the Certificate reasonably believes is a “qualified
institutional buyer” (within the meaning of Rule 144A under the Securities Act) that is
aware that such resale or other transfer is being made in reliance upon Rule 144A. Until
the earlier of: (i) such time as the Certificates shall be registered pursuant to a
registration statement filed under the Securities Act; and (ii) the date three years from
the later of the date of the original authentication and delivery of the Certificates and
the date any Certificate was acquired from the Seller or any Affiliate of the Seller, the
Certificates shall bear a legend substantially to the effect set forth in the preceding two
sentences. Neither the Seller, the Servicer, the Issuer nor the Owner Trustee is obligated
to register the Certificates under the Securities Act or to take any other action not
otherwise required under this Agreement to permit the transfer of Certificates without
registration.



     SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates. If (i) any mutilated
Certificate is surrendered to the Certificate Registrar, or (ii) the Certificate Registrar receives
evidence to its satisfaction that any Certificate has been destroyed, lost or stolen, and there
shall be delivered to the Certificate Registrar, the Controlling Party and the Owner Trustee such
security or indemnity as may be requested by them to save each of them harmless, the Owner Trustee
shall execute and the Owner Trustee, or [___], as the Owner Trustee’s
authenticating agent, shall authenticate 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, class and denomination 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 Owner Trustee or the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 3.6 shall constitute
conclusive 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 Residual Interestholders’ Names and Addresses. The Owner
Trustee shall cause to be furnished to the Servicer or the Seller and, prior to the Termination
Date, the Controlling Party, within 15 days after receipt by the Owner Trustee of a request
therefor from such Person in writing, a list of the names and addresses of the Residual
Interestholders as of the most recent Record Date. If three or more Residual Interestholders or
one or more Residual Interestholders evidencing not less than 25% of the Residual Interest apply in
writing to the Owner Trustee, and such application states that the applicants desire to communicate
with other Residual Interestholders with respect to their rights under this Agreement or under the
Residual Interests and such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal business hours to the
current list of Residual Interestholders. Each Residual



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Interestholder, by holding a Residual Interest, shall be deemed to have agreed not to hold any
of the Seller, the Servicer, the Controlling Party or the Owner Trustee or any agent thereof
accountable by reason of the disclosure of its name and address, regardless of the source from
which such information was derived.



ARTICLE IV




ACTIONS BY OWNER TRUSTEE




     SECTION 4.1. Prior Notice to Residual Interestholder with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee shall not take action unless at least 30 days
before the taking of such action, the Owner Trustee shall have notified the Residual Interestholder
in writing of the proposed action and the Residual Interestholder shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that the Residual
Interestholder 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 Residual Interestholder;




     (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
Residual Interestholder; 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 Residual Interestholder with Respect to Certain Matters. The Owner
Trustee shall not have the power, except upon the direction of the Residual Interestholder, 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 the Residual
Interestholder.



     SECTION 4.3. Action by Residual Interestholder with Respect to Bankruptcy. 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 amount of all outstanding Notes has been reduced to zero [and
all amounts owed to the Insurer under the Transaction Documents have been paid] and without the
prior written approval of the Residual Interestholder and the delivery to the Owner Trustee by the
Residual Interestholder of a certificate certifying that the Residual Interestholder reasonably
believes that the Issuer is insolvent.



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     SECTION 4.4. Restrictions on Residual Interestholder’s Power. The Residual Interestholder
shall not 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 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 Residual
Interestholder, any action which may be taken or consent or instructions which may be given by the
Residual Interestholder under this Agreement may be taken by Residual Interestholders 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.



     SECTION 4.6. [Rights of the Insurer. Notwithstanding anything to the contrary in the
Transaction Documents, without the prior written consent of the Insurer so long as it is the
Controlling Party, prior to the Termination Date, neither the Owner Trustee nor any Residual
Interestholder shall (i) initiate any claim, suit or proceeding by the Issuer or compromise any
claim, suit or proceeding brought by or against the Issuer, other than with respect to the
enforcement of any Contract or any rights of the Issuer thereunder, (ii) authorize the merger or
consolidation of the Issuer with or into any other statutory trust or other entity or convey or
transfer all or substantially all of the Trust Estate to any other entity, (iii) amend the
Certificate of Trust or (iv) amend this Agreement.]



     SECTION 4.7. Covenants of the Issuer, the Owner Trustee and the Residual Interestholders.





     (a) The Issuer shall maintain its office separate from the offices of the Seller and
its Affiliates. For accounting purposes, the Issuer shall be treated as an entity separate
and distinct from any Residual Interestholder. The pricing and other material terms of all
transactions and agreements to which the Issuer is a party shall be intrinsically fair to
all parties thereto.




     (b) The Issuer and each Residual Interestholder shall comply with the following
covenants:




     (i) neither the Owner Trustee nor any Residual Interestholder shall cause the
funds and other assets of the Issuer to be commingled with those of any other
individual, corporation, estate partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government or agency or political
subdivision thereof or any other entity;




     (ii) neither the Owner Trustee nor any Residual Interestholder shall cause the
Issuer to be, become or hold itself out as being liable for the debts of any other
party, and neither the Issuer nor any Residual Interestholder shall act as agents
for each other. The Issuer shall not guarantee the indebtedness of or make loans to
any other party or any Residual Interestholder. No Residual Interestholder may
guarantee the indebtedness of or make loans to the Issuer or hold itself out as
being liable for the debts of the Issuer;



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     (iii) neither the Owner Trustee nor any Residual Interestholder shall cause the
Issuer (A) to act other than solely in its Issuer name and through its duly
authorized officers or agents in the conduct of its business, (B) to prepare all
Issuer correspondence otherwise than in the Issuer name or (C) to conduct its
business other than so as not to mislead others as to the identity of the entity
with which they are conducting business;




     (iv) no Residual Interestholder will be involved in the day-to-day management
of the Issuer;




     (v) the Owner Trustee shall maintain on behalf of the Issuer all statutory
trust records, appropriate minutes or other records of all appropriate actions and
books of account of the Issuer and neither the Owner Trustee nor any Residual
Interestholder shall cause the Issuer to commingle its statutory trust records,
minutes and records and books of account with the corporate records and books of
account maintained by any Residual Interestholder or the Owner Trustee on behalf of
the Issuer shall reflect the separate existence of the Issuer. The books of the
Issuer may be kept (subject to any provision contained in any applicable statutes)
inside or outside the State of Delaware at such place or places as may be designated
from time to time by the Owner Trustee with notice to the Controlling Party;




     (vi) the Issuer shall observe such formalities as may be necessary to authorize
all of its actions as may be required by law; and




     (vii) the Owner Trustee shall cause the Issuer to (A) conduct its business in
an office separate from that of each Residual Interestholder, (B) maintain
stationery, if any, separate from that of each Residual Interestholder, (C) except
as expressly set forth herein or in any other Transaction Document, pay its
indebtedness, operating expenses and liabilities from its own funds, and not to pay
the indebtedness, operating expenses and liabilities of any other entity, (D)
observe all statutory formalities under the Statutory Trust Act and (E) keep in full
effect its existence, rights and franchises as a statutory trust under the laws of
the State of Delaware until dissolved in accordance with the Transaction Documents.




     (c) The Owner Trustee shall notify the Seller, the Servicer, the Controlling Party
and the Residual Interestholders in writing of any appointment of a successor Note
Registrar or Certificate Registrar within five Business Days thereof.



ARTICLE V




APPLICATION OF TRUST FUNDS; CERTAIN DUTIES




     SECTION 5.1. Application of Trust Funds. Distributions on the Residual Interest shall be
made 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 Residual
Interestholder all other amounts (if any) received by the Issuer or the Owner Trustee



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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 Issuer and the Owner
Trustee in respect of the Trust Estate at the direction of the Residual Interestholder.




     SECTION 5.2. Method of Payment. Subject to the Indenture, distributions required to be made
to the Residual Interestholder on any Payment Date and all amounts received by the Issuer or the
Owner Trustee on any other date that are payable to the Residual Interestholder pursuant to this
Agreement or any other Transaction Document shall be made to the Residual Interestholder by wire
transfer, in immediately available funds, to the account of the Residual Interestholder designated
by the Residual Interestholder 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; Tax Matters Partner.





     (a) Notwithstanding the provisions of Section 5.4, the Owner Trustee shall
sign on behalf of the Issuer the tax returns of the Issuer, if any, unless applicable law
requires a Residual Interestholder to sign such documents, in which case such documents
shall be signed by the Seller as “tax matters partner”.




     (b) The Residual Interestholders hereby elect the Seller as the “tax matters partner”
of the Issuer pursuant to Section 6231 of the Code and the Treasury Regulations promulgated
thereunder.



     SECTION 5.5. Accounting and Records to the Residual Interestholders, the Internal Revenue
Service and Others. Subject to Section 3.1 of the Sale and Servicing Agreement, the Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Issuer on a calendar year basis on
the accrual method of accounting, (b) deliver (or cause to be delivered) to each Residual
Interestholder, as may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1, if necessary) to enable each Residual
Interestholder to prepare its federal and State income tax returns and (c) file or cause to be
filed such tax returns relating to the Issuer, 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. The Owner Trustee shall make all elections pursuant to this Section as directed in
writing by the Seller. The Owner Trustee shall sign all tax information returns filed pursuant to
this Section and any other returns as may be required by law, and in doing so shall rely entirely
upon, and shall have no liability for information provided by, or calculations provided by, the
Seller. The Owner Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Contracts. The Owner Trustee shall
not make the election provided under Section 754 of the Code.



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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 the Transaction Documents to which the Issuer is named as a party
and each certificate or other document attached as an exhibit to or contemplated by the Transaction
Documents to which the Issuer is named as a party and any amendment thereto, in each case, in such
form as the Seller shall approve as evidenced conclusively by the Owner Trustee’s execution
thereof, and on behalf of the Issuer, to direct the Indenture Trustee to authenticate and deliver
the Class A-1 Notes in the aggregate principal amount of $[___], the Class A-2 Notes in the
aggregate principal amount of $[___], the Class A-3 Notes in the aggregate principal amount of
$[___] and the Class A-4 Notes in the aggregate principal amount of $[___] . 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 Controlling Party shall direct in writing
with respect to the Transaction Documents so long as such activities are consistent with the terms
of the Transaction Documents. The Controlling Party hereby agrees not to instruct the Owner
Trustee to take any action which is inconsistent with or in violation of the terms of the
Transaction Documents.



     SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to do the following:




     (a) The Owner Trustee shall discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to administer the Issuer in
the interest of the Holders and the Controlling Party, subject to the 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 other Transaction Documents to the extent that (i) the
Administrator has agreed in the Agreement to perform any act or to discharge any duty of
the Owner Trustee or the Issuer hereunder or under any other 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 or (ii) the Owner Trustee has contracted with a third party
acceptable to the Controlling Party to discharge such duties and responsibilities. The
Servicer, the Backup Servicer, the Indenture Trustee and the Seller shall all be deemed
acceptable to the Controlling Party. The Owner Trustee shall have no obligation to
administer, service or collect the Contracts or to maintain, monitor or otherwise supervise
the administration, servicing or collection of the Contracts .




     (b) The Owner Trustee shall obtain and preserve the Issuer’s qualification to do
business in each jurisdiction in which, based upon the advice of the Seller or the
Servicer, such qualification is or shall be necessary to protect the validity and
enforceability of the Transaction Documents and related instruments and agreements, the
Notes and the Trust Estate.


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     SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, the Controlling
Party shall have the exclusive right to direct the actions of the Owner Trustee in the management
of the Issuer, so long as such instructions are not inconsistent with the express terms set forth
herein or in any Transaction Document.




     (b) The Owner Trustee shall not be required to take any action hereunder or under any
other Transaction Document if the Owner Trustee shall have reasonably determined, or shall
have been advised by counsel, that such action is likely to result in liability on the part
of the Owner Trustee or is contrary to the terms hereof or of any other 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 other Transaction
Document, the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Residual Interestholders (and, prior to the
Termination Date, the Controlling Party) requesting instruction from such of them as shall
be sufficient to constitute an Controlling Party as to the course of action to be adopted,
and to the extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Controlling Party received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 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 other Transaction Documents, as it
shall deem to be in the best interests of the Residual Interestholders and the Controlling
Party, and shall have no liability to any Person for such action or inaction.




     (d) In the event that the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other 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
may give notice (in such form as shall be appropriate under the circumstances) to the
Residual Interestholders (and prior to the Termination Date, the Controlling Party)
requesting instruction from such of them as shall be sufficient to constitute an
Controlling Party and, to the extent that the Owner Trustee acts or refrains from acting in
good faith in accordance with any such instruction received, the Owner Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Owner Trustee shall
not have received appropriate instruction within 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 other Transaction Documents, as it
shall deem to be in the best interests of the Residual Interestholders and the Controlling
Party, and shall have no liability to any Person for such action or inaction.



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     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
other 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 other Transaction Document.
[     ] 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, [___] (solely in its individual capacity) and that are not
related to the ownership or the administration of the Trust Estate. [Notwithstanding anything
contained herein to the contrary, with respect to the Insurer, the Owner Trustee undertakes to
perform or observe only such of the covenants and obligations of the Owner Trustee as are expressly
set forth in this Agreement, and no implied covenants or obligations with respect to the Insurer
shall be read into this Agreement against the Owner Trustee.] The Owner Trustee shall not [be
deemed to owe any fiduciary duty to the Insurer and shall not] be liable to any such person other
than as expressly set forth in the third sentence of Section 7.1 of this Agreement.



     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 in accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement or the other Transaction Documents and 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 (i) that is
inconsistent with the purposes of the Issuer set forth in Section 2.3 or (ii) that, to the
actual knowledge of the Owner Trustee, would result in the Issuer’s becoming taxable as a
corporation for federal income tax purposes. The Residual Interestholder [and the Insurer] shall
not direct the Owner Trustee to take action that would violate the provisions of this Section.



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 and the other Transaction Documents. 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. The Owner Trustee shall not be answerable or accountable in its
individual capacity hereunder or under any other Transaction Document under any circumstances,
except: (a) for its own willful misconduct, bad faith or negligence; (b) in the



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case of the inaccuracy of any representation or warranty contained in Section 7.3
expressly made by [___]; (c) for liabilities arising from the failure of [___] to perform
obligations expressly undertaken by it in the last sentence of Section 6.4; (d) for any
investments issued by [___] or any branch or Affiliate thereof in its commercial capacity; or
(e) for taxes, fees or other charges on, based on or measured by, any fees, commissions or
compensation received by the Owner Trustee, and every provision of this Agreement relating to the
conduct or affecting the liability of or affording protection to the Owner Trustee shall be subject
to this Section. In particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):





     (a) the Owner Trustee shall not be liable for any error of judgment made by a
Responsible Officer of the Owner Trustee or for any information contained in the
Prospectus;




     (b) the Owner Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the instructions of the Controlling
Party, the Servicer, the Backup Servicer or any Residual Interestholder in accordance with
the terms of this Agreement and the other Transaction Documents;




     (c) no provision of this Agreement or any other Transaction Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under any Transaction Document if
the Owner Trustee shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured or provided
to it;




     (d) under no circumstances shall the Owner Trustee be liable for indebtedness of the
Issuer evidenced by or arising under any of the Transaction Documents, including the
principal of and interest on the Notes;




     (e) the Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Seller or for the
form, character, genuineness, sufficiency, value or validity of any of the Trust Estate or
for or in respect of the validity or sufficiency of the Transaction Documents, other than
the certificate of authentication on the Certificates to the extent the Residual Interest
is certificated, and the Owner Trustee shall in no event assume or incur any liability,
duty or obligation to the Indenture Trustee, the Controlling Party, any Noteholder or to
any Residual Interestholder, other than as expressly provided for herein and in the other
Transaction Documents;




     (f) the Owner Trustee shall not be liable for the default or misconduct of the
Seller, the Indenture Trustee, the Controlling Party, the Servicer or the Backup Servicer
under any of the Transaction Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations under this Agreement or the other
Transaction Documents that are required to be performed by the Seller under this Agreement,
by the Indenture Trustee under the Indenture or the Servicer or the Backup Servicer under
the Sale and Servicing Agreement; and



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     (g) the Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this Agreement or any other Transaction
Document, at the request, order or direction of the Controlling Party or any of the
Residual Interestholders, unless such Controlling Party or Residual Interestholders have
offered to the Owner Trustee security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or
thereby; the right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any other Transaction Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act.



     SECTION 7.2. Furnishing of Documents. The Owner Trustee shall furnish to the Residual
Interestholder 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.



     SECTION 7.3. Representations and Warranties. [___] hereby represents and warrants to
the Seller for the benefit of the Residual Interestholder, that:




     (a) It is a [___] duly organized and validly existing in good standing under
the laws 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 or any indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.



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     SECTION 7.4. Reliance; Advice of Counsel. (a) In the absence of bad faith, willful
misconduct or negligence, the Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper reasonably believed by it to be genuine and to be signed by the
proper party or parties; however, the Owner Trustee shall examine the same to determine whether or
not they conform on their face to this Agreement. 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 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 other Transaction Documents, the
Owner Trustee: (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care; and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such counsel,
accountants or other such Persons and according to such opinion not contrary to this
Agreement or any other Transaction Document.



     SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this Article VII, in
accepting the trusts hereby created, [___] 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 Residual Interests and Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of Residual Interests or Notes
and may deal with the Seller, the Indenture Trustee and the Servicer in banking transactions with
the same rights as it would have if it were not Owner Trustee, and the Seller, the Indenture
Trustee, the Administrator and their respective Affiliates may maintain normal commercial banking
relationships with the Owner Trustee and its Affiliates.



     SECTION 7.7. Owner Trustee Not Liable for Certificates or Contracts. The recitals contained
herein and, to the extent the Residual Interest is certificated, in the Certificates (other than
the signature and countersignature of the Owner Trustee on the Certificates) shall be taken as the
statements of the Seller and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Transaction Document, the Residual Interests (other than the signature and
countersignature of the Owner Trustee on the Certificates), the Notes or of



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any Contract or related documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to: (a) the legality, validity and enforceability of any Contract;
(b) the perfection and priority of any security interest created by any Contract in any Financed
Vehicle or the maintenance of any such perfection and priority; (c) with respect to the sufficiency
of the Trust Estate or its ability to generate the payments to be distributed to Residual
Interestholders under this Agreement or the Noteholders under the Indenture, including, in each
case (a), (b) and (c), (i) the existence, condition and ownership of any Financed Vehicle, (ii) the
existence and enforceability of any insurance thereon, (iii) the existence and contents of any
Contract on any computer or other record thereof, (iv) the validity of the assignment of any
Contract to the Issuer or of any intervening assignment, (v) the completeness of any Contract, (vi)
the performance or enforcement of any Contract, or (vii) the compliance by the Seller, the Servicer
or any other Person with any warranty or representation made under any Transaction Document or in
any related document or the accuracy of any such warranty or representation or any action of the
Indenture Trustee or the Servicer, the Backup Servicer or any subservicer taken in the name of the
Owner Trustee.



     SECTION 7.8. Payments from Trust Estate. All payments to be made by the Owner Trustee on
behalf of the Issuer under this Agreement or any of the other Transaction Documents to which the
Issuer or the Owner Trustee is a party shall be made only from the corpus, income and proceeds of
the Trust Estate and only to the extent that the Owner Trustee shall have received corpus, income
or proceeds from the Trust Estate to make such payments in accordance with the terms hereof.
[___], or any successor thereto, in its individual capacity, shall not be liable for any
amounts payable under this Agreement or any of the other Transaction Documents to which the Issuer
or the Owner Trustee is a party.



     SECTION 7.9. Doing Business in Other Jurisdictions. Notwithstanding anything contained
herein to the contrary, neither [___] nor the Owner Trustee shall be required to take any
action in any jurisdiction other than in the State of Delaware if the taking of such action will,
even after the appointment of a co-trustee or separate trustee in accordance with Section
10.5: (a) require the consent or approval or authorization or order of or the giving of notice
to, or the registration with or the taking of any other action in respect of, any State or other
governmental authority or agency of any jurisdiction other than the State of Delaware; (b) result
in any fee, tax or other governmental charge under the laws of the State of Delaware becoming
payable by [___] (or any successor thereto); or (c) subject [___] (or any successor
thereto) to personal jurisdiction in any jurisdiction other than the State of Delaware for causes
of action arising from acts unrelated to the consummation of the transactions by [ ] (or any
successor thereto) or the Owner Trustee, as the case may be, contemplated hereby.



ARTICLE VIII




COMPENSATION OF OWNER TRUSTEE




     SECTION 8.1. The Owner Trustee’s Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed upon before the
date hereof between Drive Consumer USA Inc. and the Owner Trustee, and the Owner Trustee shall be
entitled to be reimbursed by Drive Consumer USA Inc., within 30 days of a demand by the Owner
Trustee, upon receipt by the Owner Trustee of an invoice or other



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demand for payment, for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives, experts and counsel as
the Owner Trustee may employ in connection with the exercise and performance of its rights and its
duties hereunder and under the other Transaction Documents.



     SECTION 8.2. Indemnification. Drive Consumer USA Inc. shall be liable as primary obligor
for, and shall indemnify [___], individually and as Owner Trustee and its officers,
directors, successors, assigns, agents and servants (collectively, the “Indemnified Parties”) from
and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and
suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal
fees and expenses) of any kind and nature whatsoever (collectively, “Expenses”) which may at any
time be imposed on, incurred by, or asserted against any Indemnified Party in any way relating to
or arising out of this Agreement, the other Transaction Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of the Owner Trustee hereunder, within
30 days of a demand by the Owner Trustee, upon receipt by the Owner Trustee of an invoice or other
demand for payment, except only that Drive Consumer USA Inc. shall not be liable for or required to
indemnify the Owner Trustee from and against Expenses arising or resulting from the gross
negligence, willful misconduct or bad faith of the Owner Trustee. The indemnities contained in
this Section and the rights of the Owner Trustee under Section 8.1 shall survive the
resignation or termination of the Owner Trustee and the replacement of Drive Consumer USA Inc. as
Administrator or the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the Owner Trustee’s choice
of legal counsel shall be subject to the approval of Drive Consumer USA Inc. which approval shall
not be unreasonably withheld.



     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.



     SECTION 8.4. Non-Recourse Obligations. Notwithstanding anything in this Agreement or any
Transaction Document, the Owner Trustee agrees that all obligations of the Issuer individually or
as Owner Trustee for the Issuer shall be recourse to the Trust Estate only, shall be paid in
accordance with the priorities set forth in Section 4.4 of the Sale and Servicing Agreement and
Section 5.4 of the Indenture and specifically shall not be recourse to the assets of any Holder.



ARTICLE IX




TERMINATION OF TRUST AGREEMENT




     SECTION 9.1. Termination of Trust Agreement. The Issuer shall wind-up and dissolve, and this
Agreement (other than Article VIII) shall terminate, 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 the Residual Interestholder shall not (x) operate
to terminate this Agreement or the Issuer, nor (y) entitle the Residual Interestholder’s



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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. Dissolution of the Issuer. Upon dissolution of the Issuer, the Owner Trustee
shall 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 Residual Interestholder, 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 Seller nor the Residual Interestholder shall be entitled to revoke or terminate the Issuer.



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 corporation or other institution: (i) satisfying the provisions of Section 3807(a) of
the Statutory Trust Act; (ii) authorized to exercise corporate trust powers; (iii) having a
combined capital and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; provided, however, the net worth of the parent organization of such
corporation shall be included in the determination of the combined capital and surplus of such
corporation[; and (iv) prior to the Termination Date, acceptable to the Insurer, so long as it is
the Controlling Party]. If such corporation or other institution 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 or other institution shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section 10.2.



     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
Seller, the Controlling Party and the Servicer. Upon receiving such notice of resignation, the
Seller shall promptly appoint a successor Owner Trustee which satisfies the eligibility
requirements set forth in Section 10.1 acceptable to the Controlling Party by written
instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner



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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 or, prior to the Termination Date, the Controlling Party
may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee
acceptable to the Controlling Party; 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 Seller [with
the prior written consent of the Insurer, so long as it is the Controlling Party,] 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, [prior to the Termination Date, the Insurer, so
long as it is the Controlling Party, or] the Seller [with, prior to the Termination Date, the
consent of the Insurer, so long as it is the Controlling Party,] may remove the Owner Trustee. If
the Seller or the Controlling Party shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Seller shall, or the Controlling Party may, promptly appoint a
successor Owner Trustee acceptable to the Controlling Party by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed, one copy
to the Controlling Party, one copy to the successor Owner Trustee and shall pay all fees owed to
the outgoing Owner Trustee.



     Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee
pursuant to any of the provisions of this Section shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 10.3 and payment of all fees
and expenses owed to the outgoing Owner Trustee. The Seller shall provide (or shall cause to be
provided) notice of such resignation or removal of the Owner Trustee to the Rating Agencies [and
the Insurer].



     SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to
Section 10.2 shall execute, acknowledge and deliver to the Seller, the Administrator, the
Controlling Party, the Servicer and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this Agreement; and the
Seller and the predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations. No successor Owner
Trustee shall accept appointment as provided in this Section unless at the time of such acceptance
such successor Owner Trustee shall be eligible pursuant to Section 10.1. Upon acceptance
of appointment by a successor Owner Trustee pursuant to this



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Section, the Administrator shall mail notice of the successor of such Owner Trustee to all
Residual Interestholders, the Trustee, the Controlling Party, the Noteholders, the Servicer and the
Rating Agencies. If the Administrator shall fail to mail 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 Administrator.



     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 be the successor of the Owner Trustee hereunder; provided such corporation
shall be eligible pursuant to Section 10.1, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided further that the Owner Trustee shall mail notice of such merger
or consolidation to the Seller, the Administrator, the Controlling Party 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 or any Financed Vehicle may at the time be
located, the Servicer 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 and the
Controlling Party to act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such Person, in such
capacity, such title to the Issuer, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the Servicer and the Owner
Trustee may consider necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the Owner Trustee 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;


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     (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 Seller and the Owner Trustee acting jointly may at any time accept
the resignation of or remove any separate trustee or co-trustee.



     Any notice, request or other writing given to the Owner Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Seller, the Servicer and the Controlling Party.



ARTICLE XI




MISCELLANEOUS




     SECTION 11.1. Amendments.




     (a) This Agreement may be amended by the Seller and the Owner Trustee, with[: (i)
prior to the Termination Date and so long as an Insurer Default has not occurred and is
continuing, the prior written consent of the Insurer; and (ii)] prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the Residual
Interestholders, (A) to cure any ambiguity or defect, (B) to correct, supplement or modify
any provisions in this Agreement or (C) to add any other provisions with respect to matters
or questions arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel which may be based upon an Officer’s Certificate of the Seller,
adversely affect in any material respect the interests of any Noteholder or Residual
Interestholder; provided that such amendment shall be deemed not to materially and
adversely affect the interests of any Noteholder, and no Opinion of Counsel shall be
required, if the Rating Agency Condition is satisfied with respect to such amendment.




     (b) This Agreement may also be amended from time to time, with[: (i) prior to the
Termination Date, the prior written consent of the Insurer (so long as it is the
Controlling Party); and (ii)] prior written notice to the Rating Agencies with the consent
of the Holders of not less than a majority of the Note Balance, and the consent of the
Residual Interestholders evidencing not less than a majority of the then-outstanding
Residual Interest (which consent of any Holder of a Residual Interest or Note given
pursuant to this Section or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such Residual Interests
or Notes and of any Residual Interest or Note issued upon the transfer thereof



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or in exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Certificate or Note) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement other than under
Section 11.1(a) or of modifying in any manner the rights of the Noteholders or the
Residual Interestholders; provided, however, that, [subject to the express rights of the
Insurer (so long as it is the Controlling Party) under the Transactions Documents,] no such
amendment shall (A) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Contracts or distributions that shall be required
to be made for the benefit of the Noteholders or the Residual Interestholders or (B) reduce
the aforesaid percentage of the Holders of Notes and/or the Residual Interest required to
consent to any such amendment, without the consent of the Holders of all the outstanding
Notes and Holders of all outstanding Residual Interests.




     (c) Promptly after the execution of any such amendment or consent, the Owner Trustee
shall furnish written notification of the substance of such amendment or consent to each
Residual Interestholder[, the Insurer (so long as it is the Controlling Party)] and the
Indenture Trustee.




     (d) It shall not be necessary for the consent of Residual Interestholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the particular
form of any proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any other
consents of Residual Interestholders provided for in this Agreement or in any other
Transaction Document) and of evidencing the authorization of the execution thereof by
Residual Interestholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe. Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.




     (e) Prior to the execution of any amendment to this Agreement or the Certificate of
Trust, the Owner Trustee [and the Insurer (so long as it is the Controlling Party)] shall
be entitled to receive and rely upon an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement, that all conditions precedent
to the execution and delivery of such amendment have been satisfied and that any such
amendment would not result in the Issuer becoming taxable as a corporation for federal
income tax purposes. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee’s own rights, duties or immunities under
this Agreement or otherwise.



     SECTION 11.2. No Legal Title to Trust Estate in Residual Interestholder. The Residual
Interestholder shall not have legal title to any part of the Trust Estate. The Residual
Interestholder 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 the Residual Interestholder 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.



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     SECTION 11.3. Limitations on Rights of Others. The provisions of this Agreement are solely
for the benefit of the Owner Trustee, the Seller, the Administrator, the Residual Interestholder
and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.



     SECTION 11.4. Notices. (a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given by telecopy with receipt
acknowledged by the recipient thereof or upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested or via Electronic Transmission, 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 a Residual Interestholder shall
be given by first-class mail, postage prepaid, at the address of such Residual
Interestholder 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 the Residual Interestholder
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 Seller, the Owner Trustee and its successors and the
Residual Interestholder and its successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the Residual
Interestholder shall bind the successors and assigns of the Residual Interestholder.



     SECTION 11.8. No Petition.




     (a) Each of the Owner Trustee (in its individual capacity and as the Owner Trustee),
by entering into this Agreement, the Seller, the Residual Interestholder, by accepting the
Residual Interest, 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



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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 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. 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 without the prior written approval of the Residual
Interestholder and the delivery to the Owner Trustee of a certificate certifying that the
Residual Interestholder reasonably believes that the Issuer is insolvent.




     (b) The Seller’s obligations under this Agreement are obligations solely of the
Seller and will not constitute a claim against the Seller to the extent that the Seller
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 (in its individual capacity
and as the Owner Trustee), by entering into or accepting this agreement, each Residual
Interestholder, by accepting a Residual Interest 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 Seller. 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 the Residual Interestholder 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 Seller), 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 (in its individual capacity and as the Owner Trustee), by
entering into or accepting this agreement, each Residual Interestholder, by accepting a
Residual Interest



Trust Agreement




29









 






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. Information Request. Owner Trustee shall provide any information reasonably
requested by the Servicer, the Issuer, the Seller or any of their Affiliates, in order to comply
with or obtain more favorable treatment under any current or future law, rule, regulation,
accounting rule or principle.



     SECTION 11.10. Headings. The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or provisions hereof.



     SECTION 11.11. 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 11.12. Information to Be Provided by the Owner Trustee. The Owner Trustee shall (i)
on or before the fifth Business Day of each month, provide to the Depositor, in writing, such
information regarding the Owner Trustee as is requested for the purpose of compliance with Item
1117 of Regulation AB, and (ii) as promptly as practicable following notice to or discovery by the
Owner Trustee of any changes to such information, provide to the Depositor, in writing, such
updated information.



     SECTION 11.13. Information Request. The Owner Trustee shall provide any information available
and deliverable without undue expense as requested by the Servicer, the Issuer, the Seller or any
of their Affiliates, 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. Limitation of Rights. All of the rights of the Insurer in, to and under this
Agreement (including, but not limited to, all of the Insurer’s rights to receive notice of any
action hereunder and to give or withhold consent to any action hereunder) shall terminate upon the
termination of the Insurance Agreement in accordance with the terms thereof and the payment in full
of all amounts owing to the Insurer.]



Trust Agreement




30









 





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



	 	 	 
	 

	 	[      ], not in its individual capacity, but solely
	 

	 	as Owner Trustee
	 
	 	 
	 

	 	By:                                                             
	 

	 	Name:
	 

	 	Title:






Trust Agreement




31









 






	 	 	 
	 

	 	DRIVE AUTO RECEIVABLES LLC
	 
	 	 
	 

	 	By:                                                             
	 

	 	Name:
	 

	 	Title:






Trust Agreement




32









 






EXHIBIT A




FORM OF CERTIFICATE




			
	 	 	 
	NUMBER

R-___
	 	100% BENEFICIAL INTEREST






DRIVE AUTO RECEIVABLES TRUST 20[  ]-[  ]




CERTIFICATE




     Evidencing the 100% beneficial interest in all of the assets of the Issuer (as defined below),
which consist primarily of motor vehicle retail installment sales contracts that are secured by new
and used automobiles, light-duty trucks and motorcycles.



     (This Certificate does not represent an interest in or obligation of Drive Auto Receivables
LLC, Drive Consumer USA Inc. 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.



     THIS
CERTIFIES THAT ___ is the registered owner of a 100%
nonassessable, fully-paid, beneficial interest in the Trust Estate of DRIVE AUTO RECEIVABLES TRUST
20[ ]-[ ], a Delaware statutory trust (the “Issuer”) formed by [___], a Delaware
limited liability company, as depositor (the “Seller”).



     The Issuer was created pursuant to a Trust Agreement dated as of [___], 20[ ] (as
amended and restated as of [___], 20[ ], the “Trust Agreement”), between the Seller
and [___], as owner trustee (the “Owner Trustee”), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the Sale and Servicing
Agreement, dated as of [___], 20[ ], between the Seller, the Issuer, [___], as
Indenture Trustee, and Drive Consumer USA Inc., 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.



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     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.



     This Certificate may not be acquired by or for the account of or with the assets of (a) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of an employee benefit plan’s or other plan’s
investment in the entity (each, a “Benefit Plan”). By accepting and holding this
Certificate, 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 or with the assets of a Benefit Plan. By its
acquisition and holding of this Certificate (or any interest herein), each Certificateholder that
is a governmental plan, church plan or foreign plan shall be deemed to represent and warrant that
its acquisition, holding and disposition of the Certificate (or interest therein) will not result
in a nonexempt prohibited transaction under, or a violation of, any applicable law that is
substantially similar to ERISA or Section 4975 of the Code



     It is the intention of the parties to the Trust Agreement that, solely for income and
franchise 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; (ii) the Seller will be disregarded
as an entity separate from Drive Consumer USA Inc.; and (iii) the Notes will be characterized as



A-2









 







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 a beneficial interest in the Issuer only and does not represent interests in or
obligations of the Seller, 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.



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



	 	 	 
	 

	 	DRIVE AUTO RECEIVABLES TRUST 20[  ]-[  ]
	 
	 	 
	 

	 	By: [___], not in its individual capacity,
	 

	 	but solely as Owner Trustee
	 
	 	 
	Dated:                                                             

	 	By:                                                             






A-4









 






OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 
	 	 	[______________], not in its individual capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authenticating Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory







A-5