exv10w4






Exhibit 10.4




SANTANDER DRIVE AUTO RECEIVABLES TRUST 2010-1




AMENDED AND RESTATED

TRUST AGREEMENT



between



SANTANDER DRIVE AUTO RECEIVABLES LLC,

as the Depositor



and



DEUTSCHE BANK TRUST COMPANY DELAWARE,

as the Owner Trustee



Dated as of May 26, 2010



 









 





TABLE OF CONTENTS





	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	SECTION 1.1. Capitalized Terms
	 	 	1	 
	 
	SECTION 1.2. Other Interpretive Provisions
	 	 	1	 
	 
	ARTICLE II ORGANIZATION
	 	 	2	 
	 
	SECTION 2.1. Name
	 	 	2	 
	 
	SECTION 2.2. Office
	 	 	2	 
	 
	SECTION 2.3. Purposes and Powers
	 	 	2	 
	 
	SECTION 2.4. Appointment of the Owner Trustee
	 	 	3	 
	 
	SECTION 2.5. Initial Capital Contribution of Trust Estate
	 	 	3	 
	 
	SECTION 2.6. Declaration of Trust
	 	 	3	 
	 
	SECTION 2.7. Organizational Expenses; Liabilities of the Holders
	 	 	3	 
	 
	SECTION 2.8. Title to the Trust Estate
	 	 	3	 
	 
	SECTION 2.9. Representations and Warranties of the Seller
	 	 	4	 
	 
	SECTION 2.10. Situs of Issuer
	 	 	5	 
	 
	SECTION 2.11. Covenants of the Residual Interestholders
	 	 	5	 
	 
	ARTICLE III RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES
	 	 	5	 
	 
	SECTION 3.1. Initial Ownership
	 	 	5	 
	 
	SECTION 3.2. Authorization of the Certificates
	 	 	5	 
	 
	SECTION 3.3. Form of the Certificate
	 	 	5	 
	 
	SECTION 3.4. Registration of the Certificates
	 	 	5	 
	 
	SECTION 3.5. Transfer of the Certificate
	 	 	5	 
	 
	SECTION 3.6. Lost, Stolen, Mutilated or Destroyed Certificates
	 	 	7	 
	 
	ARTICLE IV ACTIONS BY OWNER TRUSTEE
	 	 	7	 
	 
	SECTION 4.1. Prior Notice to Residual Interestholder with Respect to Certain Matters

	 	 	7	 
	 
	SECTION 4.2. Action by Residual Interestholder with Respect to Certain Matters
	 	 	8	 
	 
	SECTION 4.3. Action by Residual Interestholder with Respect to Bankruptcy
	 	 	8	 
	 
	SECTION 4.4. Restrictions on Residual Interestholder’s Power
	 	 	9	 
	 
	SECTION 4.5. Majority Control
	 	 	9	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
	 	 	9	 
	 
	SECTION 5.1. Application of Trust Funds
	 	 	9	 
	 
	SECTION 5.2. Method of Payment
	 	 	9	 
	 
	SECTION 5.3. Signature on Returns
	 	 	9	 
	 
	ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
	 	 	9	 
	 
	SECTION 6.1. General Authority
	 	 	9	 
	 
	SECTION 6.2. General Duties
	 	 	10	 
	 
	SECTION 6.3. Action upon Instruction
	 	 	10	 
	 
	SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions
	 	 	11	 
	 
	SECTION 6.5. No Action Except under Specified Documents or Instructions
	 	 	11	 
	 
	SECTION 6.6. Restrictions
	 	 	11	 
	 
	ARTICLE VII CONCERNING OWNER TRUSTEE
	 	 	12	 
	 
	SECTION 7.1. Acceptance of Trusts and Duties
	 	 	12	 
	 
	SECTION 7.2. Furnishing of Documents
	 	 	14	 
	 
	SECTION 7.3. Representations and Warranties
	 	 	14	 
	 
	SECTION 7.4. Reliance; Advice of Counsel
	 	 	14	 
	 
	SECTION 7.5. Not Acting in Individual Capacity
	 	 	15	 
	 
	SECTION 7.6. The Owner Trustee May Own Notes
	 	 	15	 
	 
	SECTION 7.7. Compliance with Patriot Act
	 	 	15	 
	 
	ARTICLE VIII COMPENSATION OF OWNER TRUSTEE
	 	 	15	 
	 
	SECTION 8.1. The Owner Trustee’s Compensation
	 	 	15	 
	 
	SECTION 8.2. Indemnification
	 	 	16	 
	 
	SECTION 8.3. Payments to the Owner Trustee
	 	 	16	 
	 
	ARTICLE IX TERMINATION OF TRUST AGREEMENT
	 	 	16	 
	 
	SECTION 9.1. Dissolution of Issuer
	 	 	16	 
	 
	SECTION 9.2. Termination of Trust Agreement
	 	 	16	 
	 
	SECTION 9.3. Limitations on Termination
	 	 	17	 
	 
	ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
	 	 	17	 






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TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 10.1. Eligibility Requirements for the Owner Trustee
	 	 	17	 
	 
	SECTION 10.2. Resignation or Removal of the Owner Trustee
	 	 	17	 
	 
	SECTION 10.3. Successor Owner Trustee
	 	 	18	 
	 
	SECTION 10.4. Merger or Consolidation of the Owner Trustee
	 	 	19	 
	 
	SECTION 10.5. Appointment of Co-Trustee or Separate Trustee
	 	 	19	 
	 
	ARTICLE XI MISCELLANEOUS
	 	 	20	 
	 
	SECTION 11.1. Amendments
	 	 	20	 
	 
	SECTION 11.2. No Legal Title to Trust Estate in Residual Interestholder
	 	 	21	 
	 
	SECTION 11.3. Limitations on Rights of Others
	 	 	21	 
	 
	SECTION 11.4. Notices
	 	 	21	 
	 
	SECTION 11.5. Severability
	 	 	22	 
	 
	SECTION 11.6. Separate Counterparts
	 	 	22	 
	 
	SECTION 11.7. Successors and Assigns
	 	 	22	 
	 
	SECTION 11.8. No Petition
	 	 	22	 
	 
	SECTION 11.9. Information Request
	 	 	23	 
	 
	SECTION 11.10. Headings
	 	 	23	 
	 
	SECTION 11.11. GOVERNING LAW
	 	 	23	 
	 
	SECTION 11.12. Waiver of Jury Trial
	 	 	23	 
	 
	SECTION 11.13. Form 10-D and Form 10-K Filings
	 	 	24	 
	 
	SECTION 11.14. Form 8-K Filings
	 	 	24	 
	 
	SECTION 11.15. Indemnification
	 	 	24	 






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     This AMENDED AND RESTATED TRUST AGREEMENT is made as of May 26, 2010 (as amended, supplemented
or otherwise modified and in effect from time to time, this “Agreement”) between SANTANDER
DRIVE AUTO RECEIVABLES LLC, a Delaware limited liability company, as the depositor (the
“Seller”), and DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware banking corporation, as the
owner trustee (the “Owner Trustee”).



RECITALS




     WHEREAS, the Seller and the Owner Trustee entered into that certain Trust Agreement dated as
of April 5, 2010 (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”) between the Issuer, the Seller, the Servicer, and Wells Fargo Bank,
National Association, as Indenture Trustee, as the same may be amended, modified or supplemented
from time to time.



     SECTION 1.2. Other Interpretive Provisions. All terms defined in this Agreement shall have
the defined meanings when used in any certificate or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined
in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined,
shall have the respective meanings given to them under GAAP (provided, that, to the extent
that the definitions in this Agreement and GAAP conflict, the definitions in this Agreement shall
control); (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” and all variations thereof means “including without
limitation”; (f) references to any law or regulation refer to that law or regulation as



 









 




amended from time to time and include any successor law or regulation; and (g) references to
any Person include that Person’s successors and assigns.




ARTICLE II




ORGANIZATION



     SECTION 2.1. Name. The trust created under the Original Trust Agreement shall be known as
“Santander Drive Auto Receivables Trust 2010-1” (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;




     (b) 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 and the Reserve Account and to pay the organizational, start-up and
transactional expenses of the Issuer;




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




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




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




     (f) subject to compliance with the Transaction Documents, to engage in such other
activities as may be required in connection with conservation of the Trust Estate and the
making of distributions to the Residual Interestholder and the Noteholders.


The Owner Trustee is hereby authorized to engage in the foregoing activities on behalf of the
Issuer. Neither the Issuer nor the Owner Trustee on behalf of the Issuer shall engage in any






2









 







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 Act and that this Agreement constitute the governing instrument of such
statutory trust. It is the intention of the parties hereto that, solely for income, franchise and
value added tax purposes, so long as there is a single beneficial owner of the Residual Interest,
the Issuer will be disregarded as an entity separate from such beneficial owner and the Notes will
be characterized as debt. The parties agree that, unless otherwise required by appropriate tax
authorities, the Issuer will not file or cause to be filed annual or other necessary returns,
reports and other forms consistent with the characterization of the Issuer as an entity separate
from its owner. In the event that the Issuer is deemed to have more than one beneficial owner for
federal income tax purposes, the Issuer will file returns, reports and other forms consistent with
the characterization of the Issuer as a partnership, and this Agreement shall be amended to include
such provisions as may be required under Subchapter K of the Internal Revenue Code of 1986, as
amended. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Statutory Trust Act 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 Act. Notwithstanding
anything herein or in the Statutory Trust Act 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.




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




     (b) No Residual Interestholder (including the Seller if the Seller becomes a Residual
Interestholder) shall have any personal liability for any liability or obligation of the
Issuer.



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



3









 





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




     (a) Existence and Power. The Seller is a Delaware limited liability company validly
existing and in good standing under the laws of the State of Delaware and has, in all
material respects, full power and authority required to own its assets and operate its
business as presently owned or operated, and to execute, deliver and to perform its
obligations under the Transaction Documents to which it is a party. The Seller has obtained
all necessary licenses and approvals in each jurisdiction where the failure to do so would
materially and adversely affect the ability of the Seller to perform its obligations under
the Transaction Documents and the Underwriting Agreement.




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




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




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




     (e) No Proceedings. There are no actions, orders, suits or proceedings pending or, to
the knowledge of the Seller, threatened against the Seller before or by any Governmental
Authority that (i) assert the invalidity or unenforceability of this Agreement or any of the
other Transaction Documents, (ii) seek to prevent the issuance



4









 







of the Notes or the consummation of any of the transactions contemplated by this
Agreement or any of the other Transaction Documents or (iii) seek any determination or
ruling that would materially and adversely affect the performance by the Seller of its
obligations under this Agreement or any of the other Transaction Documents.



     SECTION 2.10. Situs of Issuer. The Issuer shall be located in the State of Delaware (it
being understood that the Issuer may have bank accounts located and maintained outside of
Delaware).



     SECTION 2.11. Covenants of the Residual Interestholders. Each Residual Interestholder, by
becoming a beneficial owner of the Residual Interest, hereby acknowledges and agrees (a) that the
Residual Interestholder is subject to the terms, provisions and conditions of the Certificate, to
which the Residual Interestholder agrees to be bound; and (b) that it shall not take any position
in such Residual Interestholder’s tax returns inconsistent with Section 2.14 of the
Indenture.



ARTICLE III




RESIDUAL INTEREST AND TRANSFER OF CERTIFICATES



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



     SECTION 3.2. Authorization of the Certificates. Concurrently with the sale of the
Transferred Assets to the Issuer pursuant to the Sale and Servicing Agreement, the Owner Trustee
shall cause the Certificates to be executed on behalf of the Issuer, authenticated and delivered to
or upon the written order of the 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. The Certificates shall represent 100% of the beneficial interest in the Issuer and
shall be fully paid and nonassessable.



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



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



     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 Owner Trustee and the Issuer receive an Opinion of Counsel stating
that, in the



5









 




opinion of such counsel, such transfer will not cause the Issuer to be treated as a publicly traded
partnership for federal income tax purposes and (ii) the Certificate may not be acquired by or for
the account of or with any assets of a Benefit Plan or any governmental, non-U.S., church or other
plan or retirement arrangement that is subject to Similar Law; provided that the condition
set forth in (i) above will not apply to a transfer of 100% of the Certificate or
Certificates to an Affiliate of the Depositor or its designated nominee, provided such Affiliate
shall certify in writing to the Owner Trustee that it is a C Corporation for U.S. federal income
tax purposes (within the meaning of Section 1361(a)(2) of the Code) or a disregarded entity 100%
owned (directly or indirectly) by a C Corporation for U.S. federal income tax purposes (within the
meaning of Section 1361(a)(2) of the Code). By accepting and holding a Certificate (or any
interest therein), the holder thereof shall be deemed to have represented and warranted that it is
not, and is not purchasing the Certificate (or any interest therein) on behalf of or with any
assets of, a Benefit Plan or any governmental, non-U.S., church or other plan or retirement
arrangement that is subject to Similar Law. The Owner Trustee shall have no duty to independently
determine that the requirement in (ii) above is met and shall incur no liability to any
person in the event the holder of the Certificate does not comply with such restrictions. 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.
Such transfer 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 and with such signature guarantees and evidence of authority of the
Persons signing the instrument of transfer as the Owner Trustee may reasonably require. Promptly
upon the receipt of such documents and receipt by the Owner Trustee of the transferor’s
Certificate, the Owner Trustee shall record the name of such transferee as a Certificateholder and
its percentage of beneficial interest in the Issuer in the Certificate register and issue, execute
and deliver to such Certificateholder a Certificate evidencing such beneficial interest in the
Issuer. In the event a transferor transfers only a portion of its beneficial interest in the
Issuer, the Owner Trustee shall register and issue to such transferor a new Certificate evidencing
such transferor’s new percentage of beneficial interest in the Issuer. Subsequent to a transfer
and upon the issuance of the new Certificate or Certificates, the Owner Trustee shall cancel and
destroy the Certificate surrendered to it in connection with such transfer. The Owner Trustee may
treat the Person in whose name any Certificate is registered as the sole owner of the beneficial
interest in the Issuer evidenced by such Certificate.





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




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



6









 






     (d) No transfer (or purported transfer) of all or any part of a
Certificateholder’s interest (or any economic interest therein), whether to another
Certificateholder or to a person who is not a Certificateholder, shall be effective,
and any such transfer (or purported transfer) shall be void ab initio,
and no person shall otherwise become a Certificateholder if, after such transfer (or
purported transfer), the Issuer would have more than 95 direct or indirect holders of
an interest in the Certificates. For purposes of determining whether the Issuer will
have more than 95 holders of an interest in the Certificates, each Person indirectly
owning an interest through a partnership (including any entity treated as a partnership
for federal income tax purposes), a grantor trust or an S corporation (each such
entity, a “flow-through entity”) shall be treated as a Certificateholder unless
the Depositor determines in its sole and absolute discretion, after consulting with
qualified tax counsel, that less than substantially all of the value of the beneficial
owner’s interest in the flow-through entity is attributable to the flow-through
entity’s interest (direct or indirect) in the Issuer.




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



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



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 10 days
before the taking of such action (or if 10 days’ advance notice is impracticable, as much advance
notice as is practicable), the Owner Trustee shall have notified the Residual Interestholder in
writing of the proposed action and the Residual Interestholder shall not have



7









 




notified the Owner Trustee in writing 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.




     (a) The Issuer shall not, without the prior written consent of the Owner Trustee and
100% of the Residual Interestholders, commence a Bankruptcy Event with respect to the
Issuer. In considering whether to give or withhold written consent to the Bankruptcy Event
by the Issuer, the Owner Trustee, with the consent of the Residual Interestholder, shall
consider the interests of the Noteholders in addition to the interests of the Issuer and
whether the Issuer is insolvent. The Owner Trustee shall have no duty to give such written
consent to Bankruptcy Event by the Issuer if the Owner Trustee shall not have been furnished
(at the expense of the Person that requested such letter be furnished to the Owner Trustee)
a letter from an independent accounting firm of national reputation stating that in the
opinion of such firm the Issuer is then insolvent. The Owner Trustee shall not be
personally liable to any Noteholder or Residual Interestholder on account of the Owner
Trustee’s good faith reliance on the provisions of this Section and no Noteholder or
Residual Interestholder shall have any claim for breach of fiduciary duty or otherwise
against the Owner Trustee for withholding its consent to any such Bankruptcy Event.




     (b) The parties hereto stipulate and agree that no Residual Interestholder has power
to commence any Bankruptcy Action on the part of the Issuer.



8









 





     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.



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 Owner Trustee on behalf of the Issuer in
respect of the Trust Estate. After the termination of the Indenture in accordance with its terms,
the Owner Trustee shall distribute all amounts received (if any) by the 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. Signature on Returns. Subject to Section 2.6, the Residual
Interestholder shall sign on behalf of the Issuer the tax returns of the Issuer, unless applicable
law requires the Owner Trustee to sign such documents, in which case such documents shall be signed
by the Owner Trustee at the written direction of the Residual Interestholder.



ARTICLE VI




AUTHORITY AND DUTIES OF OWNER TRUSTEE



     SECTION 6.1. General Authority. The Owner Trustee is authorized and directed to execute and
deliver (i) the Transaction Documents to which the Issuer is named as a party and (ii) each
certificate or other document attached as an exhibit to or contemplated by the Transaction
Documents to which the Issuer or the Owner Trustee is named as a party and 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 at the written direction of the Seller,



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to direct the Indenture Trustee to authenticate and deliver Class A-1 Notes in the aggregate
principal amount of $366,000,000, Class A-2 Notes in the aggregate principal amount of
$287,000,000, Class A-3 Notes in the aggregate principal amount of $268,000,000 and Class A-4 Notes
in the aggregate principal amount of $79,000,000. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of the Issuer pursuant to
the Transaction Documents. The Owner Trustee is further authorized from time to time to take such
action as the Seller, the Administrator or the Residual Interestholder recommends or directs in
writing with respect to the Transaction Documents, except to the extent that this Agreement
expressly requires the consent of the Residual Interestholder for such action.




     SECTION 6.2. General Duties. It shall be the duty of the Owner Trustee to discharge (or
cause to be discharged) all of its responsibilities pursuant to the terms of this Agreement and the
other Transaction Documents and to administer the Issuer in the interest of the Residual
Interestholder, subject to Transaction Documents, and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its
duties and responsibilities hereunder and under the Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or to discharge any
duty of the Issuer or the Owner Trustee hereunder or under any Transaction Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement and shall have no duty to monitor the performance of
the Administrator or any other Person under the Administration Agreement or any other document.
The Owner Trustee shall have no obligation to administer, service or collect the Receivables or to
maintain, monitor or otherwise supervise the administration, servicing or collection of the
Receivables.



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




     (b) Subject to Section 7.1, the Owner Trustee shall not be required to take
any action hereunder or under any Transaction Document if the Owner Trustee shall have
reasonably determined or been advised by counsel that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or of any
Transaction Document or is otherwise contrary to law.




     (c) Whenever the Owner Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any Transaction Document or
is unsure as to the application of any provision of this Agreement or any Transaction
Document or any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to the course of
action that the Owner Trustee is required to take with respect to a particular set of facts,
the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Residual Interestholder requesting instruction as to the course of
action to be adopted or application of such provision, and to the extent the Owner Trustee
acts or refrains from acting in good faith in accordance



10









 







with any written instruction of the Residual Interestholder received, the Owner Trustee
shall not be liable on account of such action or inaction to any Person. If the Owner
Trustee shall not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Transaction Documents,
as it shall deem to be in the best interests of the Residual Interestholder, and shall have
no liability to any Person for such action or inaction.



     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 (including fiduciary duties existing at law or in
equity) or obligations shall be read into this Agreement or any Transaction Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or Lien granted to it hereunder or to prepare or file any
Commission filing (including any filings required under the Sarbanes-Oxley Act) for the Issuer or
to record this Agreement or any Transaction Document. Deutsche Bank 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, Deutsche Bank
that are not related to the ownership or the administration of the Trust Estate.



     SECTION 6.5. No Action Except under Specified Documents or Instructions. The Owner Trustee
shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Transaction Documents and
(iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to
Section 6.3.



     SECTION 6.6. Restrictions. The Owner Trustee shall not take any action (a) that is
inconsistent with the purposes of the Issuer set forth in Section 2.3 or (b) that, to the
actual knowledge of a Responsible Officer of the Owner Trustee, would (i) affect the treatment of
the Notes as indebtedness for federal income, state and local income, franchise and value added tax
purposes, (ii) be deemed to cause a taxable exchange of the Notes for federal income or state
income or franchise tax purposes or (iii) cause the Issuer or any portion thereof to be treated as
an association or publicly traded partnership taxable as a corporation for federal income, state
and local income or franchise tax purposes. The Residual Interestholder shall not direct the Owner
Trustee to take action that would violate the provisions of this Section.



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ARTICLE VII




CONCERNING OWNER TRUSTEE



     SECTION 7.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all moneys actually received by
it constituting part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be personally liable or accountable hereunder or under any
Transaction Document under any circumstances notwithstanding anything herein or in the Transaction
Documents to the contrary, except (i) for its own willful misconduct, bad faith or gross
negligence, (ii) in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by Deutsche Bank in its individual capacity, (iii) for
liabilities arising from the failure of Deutsche Bank to perform obligations expressly undertaken
by it in the last sentence of Section 6.4 or (iv) for taxes, fees or other charges on,
based on or measured by, any fees, commissions or compensation received by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exemptions set forth in the preceding
sentence):




     (a) The Owner Trustee shall not be liable for any error of judgment made in good faith
by any officer or employee of the Owner Trustee.




     (b) Under no circumstances shall the Owner Trustee be personally liable hereunder for
any indebtedness of the Issuer.




     (c) The Owner Trustee shall not be personally liable for the payment of any tax
imposed on the Issuer or amounts that are includable in the federal gross income of the
Residual Interestholder.




     (d) No provision of this Agreement shall require the Owner Trustee to expend or risk
funds or otherwise incur any financial liability in the performance of any of the Owner
Trustee’s duties or powers hereunder, if the Owner Trustee believes or is advised by its
legal counsel that repayment of such funds or adequate indemnity against such risk or
liability is not assured or provided to its reasonable satisfaction.




     (e) Under no circumstance shall the Owner Trustee be liable for any representation,
warranty, covenant, or obligation or indebtedness of the Issuer hereunder or under the
Transaction Documents or any other agreement, document or certificate contemplated by the
foregoing.




     (f) The Owner Trustee shall not be liable with respect to any action taken or omitted
to be taken by the Administrator, the Indenture Trustee or the Servicer and the Owner
Trustee shall not be liable for performing or supervising the performance of any obligations
or duties under this Agreement, the Administration Agreement, the Sale and Servicing
Agreement or the Indenture, or under any other document contemplated hereby or thereby,
which are to be performed by the Administrator, the Indenture Trustee or the Servicer or any
other Person under such documents.



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     (g) The Owner Trustee shall not be responsible for or in respect of the recitals
herein, 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 or any other document contemplated thereby to which the Owner Trustee is not a
party.




     (h) Notwithstanding anything contained herein or in any of the Transaction Documents
to the contrary, the Owner Trustee shall not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such action will (i)
require the consent or approval or authorization or order of or the giving of notice to, or
the registration with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii) result in any
fee, tax or other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of Delaware
becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes of action
arising from acts unrelated to the consummation of the transactions by the Owner Trustee
contemplated hereby.




     (i) The Owner Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in accordance with the instructions of the Residual Interestholder, the
Servicer or the Administrator.




     (j) The Owner Trustee shall be under no duty 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 Transaction Document, at the
request, order or written direction of the Residual Interestholder, unless such Residual
Interestholder has offered to provide to the Owner Trustee, to the extent requested by the
Owner Trustee, security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the
Owner Trustee to perform any discretionary act enumerated in this Agreement or in any
Transaction Document shall not be answerable for other than its gross negligence, bad faith
or willful misconduct in the performance of any such act.




     (k) All funds deposited with the Owner Trustee hereunder may be held in a non-interest
bearing account and the Owner Trustee shall not be liable for any interest thereon or for
any loss as a result of the investment thereof at the direction of the Residual
Interestholder.




     (l) In no event shall the Owner Trustee be liable for any damages in the nature of
punitive, special, indirect or consequential damages however styled, including, without
limitation, lost profits, or for losses due to forces beyond the control of the Owner
Trustee, including, without limitation, strikes, work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware)
services provided to the Owner Trustee.



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     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. Deutsche Bank hereby represents and warrants to
the Seller for the benefit of the Residual Interestholder, that:




     (a) It is a banking corporation duly incorporated 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.



     SECTION 7.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no personal
liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on
a certificate, signed by the president or any vice president or by the treasurer, secretary or
other Authorized Officers of the relevant party, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.




     (b) In the exercise or administration of the trusts hereunder and in the performance
of its duties and obligations under this Agreement or the Transaction



14









 







Documents, the Owner Trustee (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, but the Owner Trustee shall not be
personally liable for the conduct or misconduct of such agents, custodians, nominees
(including persons acting under a power of attorney) or attorneys selected in good faith and
(ii) may consult with counsel, accountants and other skilled persons knowledgeable in the
relevant area to be selected in good faith and employed by it at the expense of the Issuer.
The Owner Trustee shall not be personally liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such counsel,
accountants or other such persons.



     SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this Article
VII, in accepting the trusts hereby created, Deutsche Bank acts solely as the Owner Trustee
hereunder and not in its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by this Agreement or any Transaction Document
shall look only to the Trust Estate for payment or satisfaction thereof.



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



     SECTION 7.7. Compliance with Patriot Act. In order to comply with laws, rules, regulations
and executive orders in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering (“Applicable Law”), the
Owner Trustee is required to obtain, verify and record certain information relating to individuals
and entities which maintain a business relationship with the Owner Trustee. Accordingly, the
Depositor shall cause to be provided to the Owner Trustee upon its reasonable request from time to
time such identifying information and documentation as may be available to the Depositor in order
to enable the Owner Trustee to comply with Applicable Law.



ARTICLE VIII




COMPENSATION OF OWNER TRUSTEE



     SECTION 8.1. The Owner Trustee’s Compensation. The Issuer shall cause the Servicer to pay to
Deutsche Bank pursuant to Section 3.11 of the Sale and Servicing Agreement from time to
time compensation for all services rendered by Deutsche Bank under this Agreement pursuant to a fee
letter between the Servicer and the Owner Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust). The Servicer,
pursuant to Section 3.11 of the Sale and Servicing Agreement and the fee letter between the
Servicer and the Owner Trustee, shall reimburse Deutsche Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by Deutsche Bank in accordance with any
provision of this Agreement (including the reasonable compensation, expenses and disbursements of
such agents, experts and counsel as Deutsche



15









 




Bank may employ in connection with the exercise and performance of its rights and its duties
hereunder), except any such expense may be attributable to its willful misconduct, gross negligence
(other than an error in judgment) or bad faith. To the extent not paid by the Servicer, such fees
and reasonable expenses shall be paid by the Issuer in accordance with Section 4.4 of the
Sale and Servicing Agreement or Section 5.4(b) of the Indenture, as applicable.




     SECTION 8.2. Indemnification. The Seller shall cause the Servicer to indemnify Deutsche Bank
in its individual capacity and as trustee and its successors, assigns, directors, officers,
employees and agents (the “Indemnified Parties”) from and against, any and all loss,
liability, expense, tax, penalty or claim (including reasonable legal fees and expenses) of any
kind and nature whatsoever which may at any time be imposed on, incurred by, or asserted against
Deutsche Bank in its individual capacity and as trustee or any Indemnified Party in any way
relating to or arising out of this Agreement, the Transaction Documents, the Trust Estate, the
administration of the Trust Estate or the action or inaction of Deutsche Bank hereunder;
provided, however, that neither the Seller nor the Servicer shall be liable for or
required to indemnify Deutsche Bank from and against any of the foregoing expenses or indemnities
arising or resulting from (i) its own willful misconduct, bad faith or gross negligence, (ii) the
inaccuracy of any representation or warranty contained in Section 7.3 expressly made by
Deutsche Bank in its individual capacity, (iii) liabilities arising from the failure of Deutsche
Bank to perform obligations expressly undertaken by it in the last sentence of Section 6.4
or (iv) taxes, fees or other charges on, based on or measured by, any fees, commissions or
compensation received by the Owner Trustee. To the extent not paid by the Servicer, such
indemnification shall be paid by the Issuer in accordance with Section 4.4 of the Sale and
Servicing Agreement or Section 5.4(b) of the Indenture, as applicable. The provisions of
this Section 8.2 shall survive the termination of this Agreement and the resignation or
removal of the Owner Trustee.



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



ARTICLE IX




TERMINATION OF TRUST AGREEMENT



     SECTION 9.1. Dissolution of Issuer. The Issuer shall dissolve upon the final distribution of
all moneys or other property or proceeds of the Trust Estate in accordance with the terms of the
Indenture and the Sale and Servicing Agreement and 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 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. Termination of Trust Agreement. Upon dissolution of the Issuer, the
Administrator shall wind up the business and affairs of the Issuer as required by Section 3808 of
the Statutory Trust Act. Upon the satisfaction and discharge of the Indenture, and receipt of a



16









 




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 Administrator, in the absence of actual knowledge of any other claim
against the Issuer, 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 Act. The Owner Trustee, upon surrender of the outstanding
certificates shall distribute the remaining Trust Estate (if any) in accordance with Article V
hereof and, at the written direction of the Residual Interestholder, 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 Act, 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 bank (i) authorized to exercise corporate trust powers, (ii) having a combined capital
and surplus of at least $50,000,000 and (iii) subject to supervision or examination by Federal or
state authorities. If such bank shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published.
The Owner Trustee shall at all times be an institution satisfying the provisions of Section 3807(a)
of the Statutory Trust Act. 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 Administrator, the Servicer, the Indenture Trustee and the Residual Interestholder.
Upon receiving such notice of resignation, the Seller and the Administrator, acting jointly, shall
promptly appoint a successor Owner Trustee which satisfies the eligibility requirements set forth
in Section 10.1 by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner Trustee may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any such
successor shall in no event relieve the resigning Owner Trustee from any obligations otherwise
imposed on it under the Transaction Documents until such successor has in fact assumed such
appointment.



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     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 or
the Administrator, or if at any time the Owner Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Seller
or the Administrator may remove the Owner Trustee. If the Seller or the Administrator shall remove
the Owner Trustee under the authority of the immediately preceding sentence, the Seller and the
Administrator, acting jointly, shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and shall pay all fees owed to the
outgoing Owner Trustee.



     Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee
pursuant to any of the provisions of this Section 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 each of the Rating
Agencies.



     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 and to
its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and
thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and
such successor Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as the Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and
statements and monies held by it under this Agreement; and the 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 Section, the
Seller shall mail (or shall cause to be mailed) notice of the successor of such Owner Trustee to
the Residual Interestholder, Indenture Trustee, the Noteholders and each of the Rating Agencies.
If the Seller shall fail to mail (or cause to be mailed) such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause
such notice to be mailed at the expense of the Seller. Any successor Owner Trustee appointed
pursuant to this Section 10.3 shall promptly file an amendment to the Certificate of Trust
with the Secretary of State identifying the name and principal place of business of such successor
Owner Trustee in the State of Delaware.



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     SECTION 10.4. Merger or Consolidation of the Owner Trustee. Any Person into which the Owner
Trustee may be merged or converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business of the Owner Trustee,
shall, without the execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, be the successor of the Owner
Trustee hereunder; provided that such Person shall be eligible pursuant to Section
10.1; and provided further that the Owner Trustee shall file an amendment to
the Certificate of Trust of the Issuer, if required by applicable law, and mail notice of such
merger or consolidation to the Seller, the Administrator and the Rating Agencies.



     SECTION 10.5. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other
provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust Estate may at the time be located, the Seller and the
Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any 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 Seller and the Owner Trustee may consider necessary or desirable. If the Seller
shall not have joined in such appointment within 15 days after the receipt by it of a request so to
do, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.3.



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




     (i) all rights, powers, duties and obligations conferred or imposed upon the
Owner Trustee shall be conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of title to
the Issuer or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the direction
of the Owner Trustee;




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




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



19









 





     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 copies thereof given
to the Seller and the Administrator.



     Any separate trustee or co-trustee may at any time appoint the Owner Trustee, its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new or successor trustee. The Owner Trustee
shall have no obligation to determine whether a co-trustee or separate trustee is legally required
in any jurisdiction in which any part of the Trust Estate may be located.



ARTICLE XI




MISCELLANEOUS



     SECTION 11.1. Amendments.




     (a) Any term or provision of this Agreement may be amended by the Seller and the Owner
Trustee without the consent of the Indenture Trustee, any Noteholder, the Issuer or any
other Person subject to the satisfaction of one of the following conditions:




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




     (ii) the Seller notifies the Indenture Trustee in writing that the Rating
Agency Condition is satisfied with respect to such amendment;


provided, that no amendment shall be effective which affects the rights, protections or
duties of the Indenture Trustee or the Owner Trustee without the prior written consent of such
Person.





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



20









 






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




     (d) Prior to the execution of any such amendment, the Seller shall provide written
notification of the substance of such amendment to each Rating Agency and the Owner Trustee;
and promptly after the execution of any such amendment or consent, the Seller shall furnish
a copy of such amendment or consent to each Rating Agency, the Owner Trustee and the
Indenture Trustee.




     (e) Prior to the execution of any amendment to this Agreement, the Owner Trustee shall
be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement and that all
conditions precedent to the execution and delivery of such amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Owner Trustee’s own rights, duties or immunities under this Agreement.



     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.



     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



21









 




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) To the fullest extent permitted by law each of the Owner Trustee (in its
individual capacity), 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 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.




     (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 Certificateholder, by
accepting a Certificate, and the Indenture Trustee and each Noteholder or Note Owner, by
accepting the benefits of this Agreement, hereby acknowledges and agrees that such Person
has no right, title or interest in or to the Other



22









 







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 Certificateholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such
interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal
process, pursuant to applicable provisions of insolvency laws or otherwise (including by
virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then such Person further acknowledges and agrees that any
such interest, claim or benefit in or from Other Assets is and will be expressly
subordinated to the indefeasible payment in full, which, under the terms of the relevant
documents relating to the securitization or conveyance of such Other Assets, are entitled to
be paid from, entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally perfected or otherwise
entitled to a priority of distributions or application under applicable law, including
insolvency laws, and whether or not asserted against the 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 Certificateholder, by accepting
a Certificate, and the Indenture Trustee and each Noteholder or Note Owner, by accepting the
benefits of this Agreement, hereby further acknowledges and agrees that no adequate remedy
at law exists for a breach of this Section and the terms of this Section may be enforced by
an action for specific performance. The provisions of this Section will be for the third
party benefit of those entitled to rely thereon and will survive the termination of this
Agreement.



     SECTION 11.9. Information Request. Owner Trustee shall provide any information in its
possession 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. Waiver of Jury Trial. To the extent permitted by applicable law, each party
hereto irrevocably waives all right of trial by jury in any action, proceeding or counterclaim
based on, or arising out of, under or in connection with this Agreement, any other Transaction
Document, or any matter arising hereunder or thereunder.



23









 





     SECTION 11.13. Form 10-D and Form 10-K Filings. So long as the Seller is filing Exchange Act
Reports with respect to the Issuer (i) no later than each Payment Date, the Owner Trustee shall
notify the Seller of any Form 10-D Disclosure Item with respect to the Owner Trustee, together with
a description of any such Form 10-D Disclosure Item in form and substance reasonably acceptable to
the Seller and (ii) no later than March 15 of each calendar year, commencing March 15, 2011, the
Owner Trustee shall notify the Seller in writing of any affiliations or relationships between the
Owner Trustee and any Item 1119 Party; provided, that no such notification need be made if
the affiliations or relationships are unchanged from those provided in the notification in the
prior calendar year.



     SECTION 11.14. Form 8-K Filings. So long as the Seller is filing Exchange Act Reports with
respect to the Issuer, the Owner Trustee shall promptly notify the Seller, but in no event later
than five (5) Business Days after its occurrence, of any Reportable Event of which a Responsible
Officer of the Owner Trustee has actual knowledge (other than a Reportable Event described in
clause (a) or (b) of the definition thereof as to which the Seller or the Servicer
has actual knowledge). The Owner Trustee shall be deemed to have actual knowledge of any such event
to the extent that it relates to the Owner Trustee in its individual capacity or any action taken
by the Owner Trustee (and not by someone else on its behalf) under this Agreement.



     SECTION 11.15. Indemnification. (a) Deutsche Bank shall indemnify the Seller, each Affiliate
of the Seller or each Person who controls any of such parties (within the meaning of Section 15 of
the Securities Act and Section 20 of the Exchange Act) and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:




     (i) (A) any untrue statement of a material fact contained in any information
provided in writing by Deutsche Bank to the Seller or its affiliates under
Sections 11.13 or 11.14 (such information, the “Provided
Information”), or (B) the omission to state in the Provided Information a
material fact required to be stated in the Provided Information, or necessary in
order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
related information and not to any other information communicated in connection with
a sale or purchase of securities, without regard to whether the Provided Information
or any portion thereof is presented together with or separately from such other
information; or




     (ii) any failure by Deutsche Bank to deliver any information, report, or other
material when and as required under Sections 11.13 or 11.14.



          (b) In the case of any failure of performance described in clause (a)(ii) of this
Section, Deutsche Bank shall promptly reimburse the Seller for all costs reasonably incurred in
order to obtain the information, report or other material not delivered as required by Deutsche
Bank.



24









 





          (c) Notwithstanding anything to the contrary contained herein, in no event shall Deutsche Bank
be liable under this Section 11.15 for special, indirect or consequential damages of any
kind whatsoever, including but not limited to lost profits, even if Deutsche Bank has been advised
of the likelihood of such loss or damage and regardless of the form of action.



[Remainder of Page Intentionally Left Blank]




25









 





     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.



	 	 	 	 	 	 	 

	 	 	DEUTSCHE BANK TRUST COMPANY DELAWARE,	 	 
	 	 	as Owner Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Elizabeth B. Ferry 	 	 
	 

	 	Name:
	 	Elizabeth B. Ferry
	 	 
	 

	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Susan
T. Rodriguez 	 	 
	 

	 	Name:
	 	Susan T. Rodriguez
	 	 
	 

	 	Title:	 	Assistant Vice President	 	 






Trust Agreement


S-1









 






	 	 	 	 	 	 	 

	 	 	SANTANDER DRIVE AUTO RECEIVABLES LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mark
McCastlain 	 	 
	 

	 	Name:
	 	Mark McCastlain
	 	 
	 

	 	Title:	 	Vice President	 	 






Trust Agreement


S-2









 





EXHIBIT A




FORM OF CERTIFICATE




	 	 	 
	NUMBER
R-             
        	 	100% BENEFICIAL INTEREST









SANTANDER DRIVE AUTO RECEIVABLES TRUST 2010-1



CERTIFICATE



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



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



     NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD (IN THE INITIAL
ACQUISITION OR THROUGH A TRANSFER) BY OR FOR THE ACCOUNT OF OR WITH ANY ASSETS OF (A) AN EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED (“ERISA”)) WHICH IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (B) A PLAN DESCRIBED BY
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, WHICH IS SUBJECT TO SECTION
4975 OF THE CODE, (C) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF AN
EMPLOYEE BENEFIT PLAN’S OR A PLAN’S INVESTMENT IN THE ENTITY OR (D) ANY GOVERNMENTAL, NON-U.S., OR
CHURCH PLAN OR ANY OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT ARRANGEMENT THAT IS SUBJECT TO A LAW
THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”).



     THIS CERTIFIES THAT                                          is the registered owner of a 100% nonassessable,
fully-paid, beneficial interest in the Trust Estate of SANTANDER DRIVE AUTO RECEIVABLES TRUST
2010-1, a Delaware statutory trust (the “Issuer”)



A-1









 




formed by Santander Drive Auto Receivables LLC, a Delaware limited liability company, as
depositor (the “Seller”).




     The Issuer was created pursuant to a Trust Agreement dated as of April 5, 2010 (as amended and
restated as of May 26, 2010, the “Trust Agreement”), between the Seller and Deutsche Bank
Trust Company Delaware, 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 May 26, 2010, between the Seller, the Issuer, Wells Fargo Bank, National
Association, as Indenture Trustee, and Santander 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.



     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 such Person
shall not commence, join or institute against, with any other Person, any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.



     By accepting and holding this Certificate (or any interest herein), the holder hereof shall be
deemed to have represented and warranted that it is not, and is not purchasing on behalf of or with
any assets of, a Benefit Plan or a governmental, non-U.S., church or other plan or retirement
arrangement that is subject to Similar Law.



     It is the intention of the parties to the Trust Agreement that, solely for income, franchise
and value added tax purposes, (i) so long as there is a single Certificateholder, the Issuer will
be disregarded as an entity separate from such Certificateholder, and if there is more than one
Certificateholder, the Issuer will be treated as a partnership; and (ii) the Notes will be
characterized as debt. By accepting this Certificate, the Certificateholder agrees to take no
action inconsistent with the foregoing intended tax treatment.



A-2









 





     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.



A-3









 





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



	 	 	 	 	 	 	 

	 	 	SANTANDER DRIVE AUTO RECEIVABLES TRUST 2010-1	 	 
	 
	 	 	 	 	 	 
	 	 	By: Deutsche Bank Trust Company Delaware, 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.



	 	 	 	 	 	 	 

	 	 	DEUTSCHE BANK TRUST COMPANY DELAWARE, not in 
its
individual capacity but solely as Owner Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 







A-5