SALE AND SERVICING AGREEMENT

 

                                                                  Exhibit 10.1

 

 

                                                                EXECUTION COPY

 

 

 

 

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                          SALE AND SERVICING AGREEMENT

 

 

                                     among

 

 

                         USAA AUTO OWNER TRUST 2005-3,

                                  as Issuer,

 

 

                             USAA ACCEPTANCE, LLC,

                                  as Depositor,

 

 

                                      and

 

 

                          USAA FEDERAL SAVINGS BANK,

                            as Seller and Servicer

 

 

 

 

 

 

                          Dated as of October 1, 2005

 

 

 

 

 

 

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                                               Table of Contents

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ARTICLE I         DEFINITIONS AND USAGE.......................................................................1

 

 

ARTICLE II        TRUST PROPERTY..............................................................................1

 

   SECTION 2.1    Conveyance of Trust Property; Intent of the Parties.........................................1

   SECTION 2.2    Representations and Warranties of the Depositor regarding the Receivables...................2

   SECTION 2.3    Repurchase upon Breach......................................................................5

   SECTION 2.4    Custody of Receivable Files.................................................................5

   SECTION 2.5    Duties of Servicer as Custodian.............................................................6

   SECTION 2.6    Instructions; Authority to Act..............................................................7

   SECTION 2.7    Custodian's Indemnification.................................................................7

   SECTION 2.8    Effective Period and Termination............................................................7

 

ARTICLE III       ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY..............................8

 

   SECTION 3.1    Duties of Servicer..........................................................................8

   SECTION 3.2    Collection of Receivable Payments...........................................................8

   SECTION 3.3    Realization Upon Receivables................................................................9

   SECTION 3.4    Allocations of Collections..................................................................9

   SECTION 3.5    Maintenance of Security Interests in Financed Vehicles.....................................10

   SECTION 3.6    Covenants of Servicer......................................................................10

    SECTION 3.7    Purchase of Receivables Upon Breach........................................................10

   SECTION 3.8    Servicer Fees..............................................................................11

   SECTION 3.9    Servicer's Certificate.....................................................................11

   SECTION 3.10   Annual Statement as to Compliance; Notice of Event of Servicing Termination................11

   SECTION 3.11   Annual Independent Certified Public Accountant's Report....................................12

   SECTION 3.12   Access to Certain Documentation and Information Regarding Receivables......................13

   SECTION 3.13   Servicer Expenses..........................................................................13

   SECTION 3.14   Insurance..................................................................................13

 

ARTICLE IV        DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS...........13

 

   SECTION 4.1   Accounts...................................................................................13

   SECTION 4.2   Collections................................................................................15

   SECTION 4.3   Application of Collections.................................................................15

   SECTION 4.4   Advances...................................................................................15

 

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   SECTION 4.5   Additional Deposits........................................................................16

   SECTION 4.6   Distributions..............................................................................16

   SECTION 4.7   Reserve Account............................................................................20

   SECTION 4.8   Yield Supplement Account...................................................................22

   SECTION 4.9   Net Deposits...............................................................................24

   SECTION 4.10 Statements to Noteholders and Certificateholders...........................................24

 

ARTICLE V        THE DEPOSITOR..............................................................................25

 

   SECTION 5.1   Representations, Warranties and Covenants of Depositor.....................................25

   SECTION 5.2   Liability of Depositor; Indemnities........................................................27

   SECTION 5.3   Merger or Consolidation of, or Assumption of the Obligations of Depositor..................28

   SECTION 5.4   Limitation on Liability of Depositor and Others............................................28

   SECTION 5.5   Depositor May Own Notes or Certificates....................................................28

 

ARTICLE VI       THE SERVICER...............................................................................28

 

   SECTION 6.1    Representations of Servicer................................................................28

   SECTION 6.2    Indemnities of Servicer....................................................................29

   SECTION 6.3    Merger or Consolidation of, or Assumption of the Obligations of Servicer...................31

   SECTION 6.4    Limitation on Liability of Servicer and Others.............................................31

    SECTION 6.5    Delegation of Duties.......................................................................32

   SECTION 6.6    Servicer Not to Resign as Servicer.........................................................32

   SECTION 6.7    Servicer May Own Notes or Certificates.....................................................32

 

ARTICLE VII       SERVICING TERMINATION......................................................................32

 

   SECTION 7.1    Events of Servicing Termination............................................................32

   SECTION 7.2    Appointment of Successor Servicer..........................................................34

   SECTION 7.3    Repayment of Advances......................................................................35

   SECTION 7.4    Notification to Noteholders and Certificateholders.........................................35

   SECTION 7.5    Waiver of Past Events of Servicing Termination.............................................35

 

ARTICLE VIII      TERMINATION................................................................................35

 

   SECTION 8.1    Optional Purchase of All Receivables.......................................................35

   SECTION 8.2    Succession Upon Satisfaction and Discharge of Indenture....................................36

 

ARTICLE IX        MISCELLANEOUS PROVISIONS...................................................................36

 

   SECTION 9.1    Amendment..................................................................................36

   SECTION 9.2    Protection of Title to Trust Property......................................................37

   SECTION 9.3    GOVERNING LAW..............................................................................39

 

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   SECTION 9.4    Notices....................................................................................40

   SECTION 9.5    Severability of Provisions.................................................................40

   SECTION 9.6    Assignment.................................................................................40

   SECTION 9.7    Further Assurances.........................................................................41

   SECTION 9.8    No Waiver; Cumulative Remedies.............................................................41

   SECTION 9.9    Third-Party Beneficiaries..................................................................41

   SECTION 9.10   Actions by Noteholders or Certificateholders...............................................41

   SECTION 9.11   Limitation of Liability of Owner Trustee and Indenture Trustee.............................41

   SECTION 9.12   Savings Clause.............................................................................42

 

Schedule A        Schedule of Receivables...................................................................A-1

Schedule B        Location of Receivable Files .............................................................B-1

Appendix A        Definitions and Usage............................................................Appendix A-1

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      SALE AND SERVICING AGREEMENT, dated as of October 1, 2005 (as from time

to time amended, supplemented or otherwise modified and in effect, this

"Agreement"), among USAA AUTO OWNER TRUST 2005-3 (the "Issuer"), a Delaware

statutory trust, USAA ACCEPTANCE, LLC, a Delaware limited liability company

(the "Depositor") and USAA FEDERAL SAVINGS BANK, a federally chartered savings

association, as seller of the Receivables to the Depositor (in such capacity,

the "Seller") and servicer (in such capacity, the "Servicer").

 

      WHEREAS, the Issuer desires to purchase a portfolio of receivables and

related property consisting of motor vehicle installment loan contracts

originated by the Seller in the ordinary course of its business;

 

      WHEREAS, the Seller is concurrently selling such portfolio of

receivables and related property to the Depositor pursuant to the Receivables

Purchase Agreement, and the Depositor is willing to sell such portfolio of

receivables and related property to the Issuer; and

 

      WHEREAS, the Servicer is willing to service such receivables on behalf

of the Issuer.

 

      NOW, THEREFORE, in consideration of the premises and the mutual

covenants herein contained, and other good and valuable consideration, the

receipt and sufficiency of which is hereby acknowledged, the parties hereto,

intending to be legally bound, agree as follows:

 

                                  ARTICLE I

 

                             DEFINITIONS AND USAGE

 

      Except as otherwise specified herein or as the context may otherwise

require, capitalized terms used but not otherwise defined herein are defined

in Appendix A hereto, which also contains rules as to usage that shall be

applicable herein.

 

                                   ARTICLE II

 

                                TRUST PROPERTY

 

     SECTION 2.1 Conveyance of Trust Property; Intent of the Parties. In

consideration of the Issuer's delivery to, or upon the order of, the Depositor

of the Notes and the Certificates, the Depositor does hereby irrevocably sell,

transfer, assign and otherwise convey to the Issuer (i) without recourse

(subject to the obligations herein) all right, title and interest of the

Depositor, whether now owned or hereafter acquired, in and to the Trust

Property, (ii) funds in the amount of the Yield Supplement Account Initial

Deposit and (iii) funds in the amount of the Reserve Initial Deposit. The

sale, transfer, assignment and conveyance made hereunder shall not constitute

and is not intended to result in an assumption by the Issuer of any obligation

of the Depositor to the Obligors or any other Person in connection with the

Receivables and the other Trust Property or any agreement, document or

instrument related thereto. The Depositor and the Issuer intend that the sale,

transfer, assignment and conveyance of the Trust Property pursuant to this

Section 2.1 shall be a sale, and not a secured borrowing, for accounting

purposes.

 

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     SECTION 2.2.Representations and Warranties of the Depositor regarding the

Receivables. The Depositor makes the following representations and warranties

with respect to the Receivables, on which the Issuer relies in purchasing the

Receivables and pledging the same to the Indenture Trustee. Such

representations and warranties speak as of the execution and delivery of this

Agreement and as of the Transfer Date, but shall survive the sale, transfer

and assignment of the Receivables by the Depositor to the Issuer and the

pledge of the Receivables by the Issuer to the Indenture Trustee pursuant to

the Indenture.

 

      (i)        Schedule of Receivables. The information set forth in Schedule

                A to this Agreement with respect to each Receivable is true

                and correct in all material respects, and no selection

                procedures adverse to the Securityholders have been used in

                selecting the Receivables from all receivables owned by the

                Seller which meet the selection criteria specified herein.

 

      (ii)       No Sale or Transfer. No Receivable has been sold, transferred,

                assigned or pledged by the Depositor to any Person other than

                the Issuer.

 

      (iii)      Good Title. Immediately prior to the transfer and assignment

                of the Receivables to the Issuer herein contemplated, the

                Depositor had good and marketable title to each Receivable

                free and clear of all Liens and rights of others; and,

                immediately upon the transfer thereof, the Issuer, has either

                (i) good and marketable title to each Receivable, free and

                clear of all of all Liens and rights of others, and the

                transfer has been perfected under applicable law or (ii) a

                first priority perfected security interest in each Receivable.

 

      (iv)       Receivable Files. The Receivable Files shall be kept at one or

                more of the locations specified in Schedule B hereto.

 

       (v)        Characteristics of Receivables. Each Receivable (a) has been

                originated for the retail financing of a Financed Vehicle by

                an Obligor located in one of the States of the United States

                or the District of Columbia; (b) contains customary and

                enforceable provisions such that the rights and remedies of

                the holder thereof are adequate for realization against the

                collateral of the benefits of the security; and (c) provides

                for fully amortizing level scheduled monthly payments

                (provided that the payment in the last month in the life of

                the Receivable may be different from the level scheduled

                payment) and for accrual of interest at a fixed rate according

                to the simple interest method.

 

      (vi)       Compliance with Law. Each Receivable and each sale of the

                related Financed Vehicle complied at the time it was

                 originated or made, and complies on and after the Cut-off

                Date, in all material respects with all requirements of

                applicable federal, state, and local laws, and regulations

                thereunder, including usury laws, the Federal Truth-in-Lending

                Act, the Equal Credit Opportunity Act, the Fair Credit

                Reporting Act, the Federal Trade Commission Act, the

                Magnuson-Moss Warranty Act, Federal Reserve Board Regulations

                B and Z, state adaptations of the National Consumer Act and of

                the Uniform Consumer Credit Code, and any

 

 

 

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                other consumer credit, equal opportunity, and disclosure laws

                applicable to such Receivable and sale.

 

      (vii)      Binding Obligation. Each Receivable constitutes the legal,

                valid, and binding payment obligation in writing of the

                Obligor, enforceable by the holder thereof in all material

                respects in accordance with its terms, subject, as to

                enforcement, to applicable bankruptcy, insolvency,

                reorganization, liquidation and other similar laws and

                 equitable principles relating to or affecting the enforcement

                of creditors' rights.

 

      (viii)     No Government Obligor. No Receivable is due from the United

                States of America or any state or from any agency, department,

                instrumentality or political subdivision of the United States

                of America or any state or local municipality and no

                Receivable is due from a business except to the extent that

                such receivable has a personal guaranty.

 

      (ix)       Security Interest in Financed Vehicle. Immediately prior to

                the sale and assignment thereof to the Issuer as herein

                contemplated, each Receivable was secured by a validly

                 perfected first priority security interest in the Financed

                Vehicle in favor of the Seller as secured party or all

                necessary and appropriate action with respect to such

                Receivable had been taken to perfect a first priority security

                interest in the related Financed Vehicle in favor of the

                Seller as secured party, which security interest is assignable

                and has been so assigned by the Seller to the Depositor and by

                the Depositor to the Issuer.

 

      (x)        Receivables in Force. No Receivable has been satisfied,

                subordinated, or rescinded, nor has any Financed Vehicle been

                released from the Lien granted by the related Receivable in

                whole or in part.

 

      (xi)       No Waiver. No provision of a Receivable has been waived in

                such a manner that such Receivable fails either to meet all of

                the representations and warranties made by the Depositor

                herein with respect thereto pursuant to this Section 2.2.

 

      (xii)      No Amendments. No Receivable has been amended except pursuant

                to instruments included in the Receivable Files and no such

                 amendment has caused such Receivable either to fail to meet

                all of the representations and warranties made by the

                Depositor herein with respect thereto pursuant to this Section

                2.2.

 

      (xiii)     No Defenses. As of the Cut-off Date, there are no rights of

                rescission, setoff, counterclaim, or defense, and the

                Depositor has no knowledge of the same being asserted or

                threatened, with respect to any Receivable.

 

      (xiv)      No Liens. As of the Cut-off Date, the Depositor has no

                knowledge of any Liens, claims that have been filed, including

                Liens for work, labor, materials or unpaid taxes relating to a

                 Financed Vehicle, that would be Liens prior to, or equal or

                coordinate with, the Lien granted by the Receivable.

 

 

 

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      (xv)       No Default. Except for payment defaults continuing for a

                 period of not more than thirty (30) days as of the Cut-off

                Date, the Depositor has no knowledge that a default, breach,

                violation, or event permitting acceleration under the terms of

                any Receivable exists; the Depositor has no knowledge that a

                continuing condition that with notice or lapse of time would

                constitute a default, breach, violation, or event permitting

                acceleration under the terms of any Receivable exists; and the

                Depositor has not waived any of the foregoing.

 

      (xvi)      Insurance. Each Receivable requires that the Obligor

                thereunder obtain comprehensive and collision insurance

                covering the Financed Vehicle.

 

      (xvii)     Lawful Assignment. No Receivable has been originated in, or is

                subject to the laws of, any jurisdiction under which the sale,

                transfer, and assignment of such Receivable under the

                 Agreement is unlawful, void or voidable.

 

      (xviii)    All Filings Made. No filings (other than UCC filings which

                have been made) or other actions are necessary in any

                jurisdiction to give the Issuer a first priority perfected

                security interest in the Receivables and to give the Indenture

                Trustee a first priority perfected security interest in the

                Receivables.

 

      (xix)      One Original. With respect to any Receivable for which an

                original executed copy exists, there is no more than one

                original executed copy of such Receivable which does not have

                any marks or notations indicating that it has been pledged,

                 assigned or otherwise conveyed to any Person other than the

                Seller and which, immediately prior to the delivery thereof to

                the Servicer, as custodian for the Indenture Trustee, was in

                the possession of the Seller.

 

      (xx)       Security. Each Receivable is secured by a new or used

                automobile or light-duty truck.

 

      (xxi)      Maturity of Receivables. Each Receivable has a remaining

                maturity, as of the Cut-off Date, of not less than 6 months

                and not more than 72 months and an original maturity of not

                less than 9 months and not more than 72 months. No Receivable

                has a scheduled maturity later than October 15, 2011.

 

       (xxii)     Annual Percentage Rate. Each Receivable is a fully-amortizing

                simple interest contract which bears interest at a fixed rate

                per annum and which provides for level scheduled monthly

                payments (except for the last payment, which may be minimally

                different from the level payments) over its respective

                remaining term, is not secured by any interest in real estate,

                and has not been identified on the computer files of the

                Seller as relating to Obligors who have requested a reduction

                in the periodic finance charges, as of the Cut-off Date, by

                application of the Servicemembers Civil Relief Act.

 

      (xxiii)    No Repossessions. Each Receivable is secured by a Financed

                Vehicle that, as of the Cut-off Date, has not been repossessed

                without reinstatement of such Receivable.

 

 

 

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      (xxiv)     Obligor Not Subject to Bankruptcy Proceedings. Each Receivable

                has been entered into by an Obligor who has not been

                identified on the computer files of the Seller as being a

                debtor in any bankruptcy proceeding as of the Cut-off Date.

 

      (xxv)      No Overdue Payments. No Receivable has any payment that is

                more than thirty (30) days past due as of the Cut-off Date.

 

      (xxvi)     Tangible Chattel Paper. The Receivables constitute "tangible

                chattel paper" within the meaning of UCC Section 9-102.

 

      (xxvii)    Remaining Principal Balance. Each Receivable had a remaining

                principal balance, as of the Cut-off Date, of at least

                $800.00.

 

       (xxviii)   Filing Statement Language. The financing statements referenced

                in paragraph (xviii) above, will contain a statement to the

                following effect "A purchase of or security interest in any

                collateral described in this financing statement will violate

                the rights of the Secured Party".

 

      SECTION 2.3 Repurchase upon Breach. Each of the Depositor, the Servicer,

the Issuer and the Owner Trustee shall inform the other parties to this

Agreement promptly, in writing, upon the discovery by it of any breach of the

Depositor's representations and warranties pursuant to Section 2.2. Unless the

breach shall have been cured by the last day of the second Collection Period

following written notice to the Indenture Trustee of such breach, the

Indenture Trustee shall enforce the obligation of the Depositor under this

Section 2.3 to repurchase any Receivable, the Issuer's interest in which is

materially and adversely affected by the breach as of such last day (or, at

the Depositor's option, the last day of the first Collection Period following

the discovery). In consideration of the purchase of the Receivable, the

Depositor shall remit the Purchase Amount (less any Liquidation Proceeds

deposited, or to be deposited, in the Collection Account with respect to such

Receivable pursuant to Section 3.3), in the manner specified in Section 4.5.

The sole remedy of the Issuer, the Owner Trustee, the Indenture Trustee, the

Noteholders or the Certificateholders with respect to a breach of the

Depositor's representations and warranties pursuant to Section 2.2 shall be to

require the Depositor to repurchase such Receivables pursuant to this Section

2.3. The obligation of the Depositor to repurchase under this Section 2.3

shall not be solely dependent upon the actual knowledge of the Depositor of

any breached representation or warranty. Neither the Owner Trustee nor the

Indenture Trustee shall have any duty to conduct an affirmative investigation

as to the occurrence of any condition requiring the repurchase of any

Receivable pursuant to this Section 2.3 or the eligibility of any Receivable

for purposes of this Agreement. Notwithstanding anything herein to the

contrary, the Depositor shall only be obligated to pay such Purchase Amount

and repurchase the related Receivable to the extent it receives the Purchase

Amount from the Seller pursuant to Section 7.02 of the Receivables Purchase

Agreement.

 

      SECTION 2.4 Custody of Receivable Files. To assure uniform quality in

servicing the Receivables and to reduce administrative costs, the Issuer, upon

the execution and delivery of this Agreement, hereby revocably appoints the

Servicer, and the Servicer hereby accepts such appointment, to act as the

agent of the Issuer and the Indenture Trustee as custodian of the

 

 

 

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following documents or instruments, which are hereby constructively delivered

to the Indenture Trustee, as pledgee of the Issuer pursuant to the Indenture,

with respect to each Receivable:

 

            (i) The original executed Receivable or, if no such original

      exists, a copy thereof.

 

            (ii) The original credit application fully executed by the Obligor

      or a photocopy thereof or a record thereof on a computer file, diskette

      or on microfiche.

 

            (iii) The notice of recorded Lien or such documents that the

      Servicer or the Depositor shall keep on file, in accordance with its

      customary procedures, evidencing the first priority perfected security

      interest of the Seller in the Financed Vehicle.

 

            (iv) Any and all other documents (including any computer file,

      diskette or microfiche) that the Servicer or the Seller shall keep on

      file, in accordance with its customary procedures, relating to a

      Receivable, an Obligor (to the extent relating to a Receivable), or a

      Financed Vehicle.

 

      The Servicer acknowledges that it holds the documents and instruments

relating to the Receivables for the benefit of the Issuer and the Indenture

Trustee. The Issuer and the Indenture Trustee shall have no responsibility to

monitor the Servicer's performance as custodian and shall have no liability in

connection with the Servicer's performance of such duties hereunder.

 

      SECTION 2.5 Duties of Servicer as Custodian.

 

      (a) Safekeeping. The Servicer shall hold the Receivable Files for the

benefit of the Issuer and the Indenture Trustee and shall maintain such

accurate and complete accounts, records and computer systems pertaining to

each Receivable File as shall enable the Servicer and the Issuer to comply

with the terms and conditions of this Agreement, and the Indenture Trustee to

comply with the terms and conditions of the Indenture. In performing its

duties as custodian, the Servicer shall act with reasonable care, using that

degree of skill and attention that the Servicer exercises with respect to the

receivable files relating to all comparable automotive receivables that the

Servicer services for itself or others. The Servicer shall conduct, or cause

to be conducted, periodic audits of the Receivable Files held by it under this

Agreement and of the related accounts, records and computer systems, in such a

manner as shall enable the Issuer or the Indenture Trustee to identify all

Receivables Files and such related accounts, records and computer systems and

verify the accuracy of the Servicer's record keeping. The Servicer shall

promptly report to the Issuer and the Indenture Trustee any failure on its

part to hold the Receivable Files and maintain its accounts, records, and

computer systems as herein provided and shall promptly take appropriate action

to remedy any such failure. Nothing herein shall be deemed to require an

initial review or any periodic review by the Issuer, the Owner Trustee or the

Indenture Trustee of the Receivable Files.

 

      (b) Maintenance of and Access to Records. The Servicer shall maintain

each Receivable File at its offices specified in Schedule B to this Agreement,

or at such other office as shall be specified to the Issuer and the Indenture

Trustee by 30 days' prior written notice. The Servicer shall make available to

the Issuer and the Indenture Trustee or their duly authorized representatives,

attorneys, or auditors, the Receivable Files and the related accounts, records

and

 

 

 

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computer systems maintained by the Servicer during normal business hours as

the Issuer or the Indenture Trustee shall reasonably request, which does not

unreasonably interfere with the Servicer's normal operations.

 

      (c) Release of Documents. Upon written instructions from the Indenture

Trustee, the Servicer shall release or cause to be released any document in

the Receivable Files to the Indenture Trustee, the Indenture Trustee's agent

or the Indenture Trustee's designee, as the case may be, at such place or

places as the Indenture Trustee may reasonably designate, as soon as is

reasonably practicable, to the extent it does not unreasonably interfere with

the Servicer's normal operations. The Servicer shall not be responsible for

any loss occasioned by the failure of the Indenture Trustee or its agent or

designee to return any document or any delay in doing so.

 

      SECTION 2.6 Instructions; Authority to Act. All instructions from the

Indenture Trustee shall be in writing and signed by an Authorized Officer of

the Indenture Trustee, and the Servicer shall be deemed to have received

proper instructions with respect to the Receivable Files upon its receipt of

such written instructions.

 

      SECTION 2.7 Custodian's Indemnification. The Servicer, as custodian,

shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee for

any and all liabilities, obligations, losses, compensatory damages, payments,

costs, or expenses of any kind whatsoever that may be imposed on, incurred, or

asserted against the Issuer, the Owner Trustee or the Indenture Trustee as the

result of any improper act or omission in any way relating to the maintenance

and custody by the Servicer as custodian of the Receivable Files; provided,

however, that the Servicer shall not be liable (i) to the Issuer for any

portion of any such amount resulting from the willful misfeasance, bad faith,

or negligence of the Indenture Trustee, the Owner Trustee or the Issuer, (ii)

to the Owner Trustee for any portion of any such amount resulting from the

willful misfeasance, bad faith, or negligence of the Indenture Trustee, the

Owner Trustee or the Issuer and (iii) to the Indenture Trustee for any portion

of any such amount resulting from the willful misfeasance, bad faith, or

negligence of the Indenture Trustee, the Owner Trustee or the Issuer.

 

      SECTION 2.8 Effective Period and Termination. The Servicer's appointment

as custodian shall become effective as of the Cut-off Date and shall continue

in full force and effect until terminated pursuant to this Section 2.8. If the

Bank shall resign as Servicer in accordance with the provisions of this

Agreement or if all of the rights and obligations of the Servicer shall have

been terminated under Section 7.1, the appointment of the Servicer as

custodian hereunder may be terminated by the Indenture Trustee, or by the

holders of Notes evidencing not less than a majority of the principal amount

of the Notes Outstanding (or if no Notes are Outstanding, by holders of

Certificates evidencing not less than a majority of the Certificate Balance),

in the same manner as the Indenture Trustee or such Securityholders may

terminate the rights and obligations of the Servicer under Section 7.1. As

soon as practicable after any termination of such appointment, the Servicer

shall deliver to the Indenture Trustee or the Indenture Trustee's agent the

Receivable Files and the related accounts and records maintained by the

Servicer at such place or places as the Indenture Trustee may reasonably

designate.

 

 

 

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                                 ARTICLE III

 

        ADMINISTRATION AND SERVICING OF RECEIVABLES AND TRUST PROPERTY

 

       SECTION 3.1 Duties of Servicer. The Servicer shall manage, service,

administer and make collections on the Receivables with reasonable care, using

that degree of skill and attention that the Servicer exercises with respect to

all comparable new or used automobile and light-duty truck receivables that it

services for itself. The Servicer's duties shall include collection and

posting of all payments, responding to inquiries of Obligors on such

Receivables, investigating delinquencies, sending payment coupons to Obligors,

reporting tax information to Obligors, accounting for collections, furnishing

monthly and annual statements to the Owner Trustee and the Indenture Trustee

with respect to distributions, making Advances pursuant to Section 4.4,

preparing (or causing to be prepared) the tax returns of the Trust in

accordance with Section 5.6 of the Trust Agreement and, if requested to do so,

providing the certifications required, pursuant to Section 5.1(b) hereof. The

Servicer shall follow its customary standards, policies and procedures in

performing its duties as Servicer. Without limiting the generality of the

foregoing, the Servicer is hereby authorized and empowered to execute and

deliver, on behalf of itself, the Issuer, the Owner Trustee, the Indenture

Trustee, the Noteholders, the Certificateholders, or any of them, any and all

instruments of satisfaction or cancellation, or partial or full release or

discharge, and all other comparable instruments, with respect to such

Receivables or to the Financed Vehicles securing such Receivables. If the

Servicer shall commence a legal proceeding to enforce a Receivable, the Issuer

(in the case of a Receivable other than a Purchased Receivable) shall

thereupon be deemed to have automatically assigned, solely for the purpose of

collection, such Receivable to the Servicer. If in any enforcement suit or

legal proceeding it shall be held that the Servicer may not enforce a

Receivable on the ground that it shall not be a real party in interest or a

holder entitled to enforce the Receivable, the Issuer shall, at the Servicer's

expense and direction, take steps to enforce the Receivable, including

bringing suit in its name or the names of the Indenture Trustee, the

Noteholders, the Certificateholders, or any of them. The Issuer shall furnish

the Servicer with any powers of attorney and other documents reasonably

necessary or appropriate to enable the Servicer to carry out its servicing and

administrative duties hereunder.

 

      SECTION 3.2 Collection of Receivable Payments. The Servicer shall make

reasonable efforts to collect all payments called for under the terms and

provisions of the Receivables as and when the same shall become due and shall

follow such collection procedures as it follows with respect to all comparable

new or used automobile and light-duty truck receivables that it services for

itself. The Servicer shall not change the amount of or reschedule the due date

of any scheduled payment of a Receivable to a date more than 30 days from the

original due date of such scheduled payment, change the annual percentage rate

of or extend any Receivable or change any material term of a Receivable,

except as provided by the terms of the Receivable or of this Agreement or as

required by law or court order; provided, however, that the Servicer may

extend any Receivable that is in default or with respect to which default is

reasonably foreseeable and that would be acceptable to the Servicer with

respect to comparable new or used automobile and light-duty truck receivables

that it services for itself if (a) the amount on deposit in the Reserve

Account is greater than zero at the time of the extension, (b) the total

credit-related extensions granted on the Receivable will not exceed four

months in the aggregate,

 

 

 

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(c) the total number of credit-related extensions granted on the Receivable

will not exceed two, and (d) the maturity of such Receivable will not be

extended beyond October 15, 2011. If, as a result of inadvertently

rescheduling or extending payments, such rescheduling or extension breaches

any of the terms of the proviso to the preceding sentence, then the Servicer

shall be obligated to purchase such Receivable pursuant to Section 3.7. For

the purpose of such purchases pursuant to Section 3.7, notice shall be deemed

to have been received by the Servicer at such time as shall make purchase

mandatory as of the last day of the Collection Period during which the

discovery of such breach occurred.

 

      Notwithstanding anything to the contrary herein, the Servicer may

implement programs that grant payment extensions in respect of receivables

that are not delinquent. Any such program shall be implemented with the

approval of the senior officer's credit committee of the Servicer in

accordance with the Servicer's general lending and policy guidelines. Any such

payment extension may extend the maturity of the applicable receivable beyond

its original term to maturity. Notwithstanding anything to the contrary

herein, the Servicer may also reduce the interest rate on Receivables affected

by the application of the Servicemembers Civil Relief Act to a rate that is

lower than the maximum rate prescribed by the Servicemembers Civil Relief Act

and may readjust the payment schedule for any Receivable that is affected by

the application of the Servicemembers Civil Relief Act until the maturity of

the receivable.

 

      SECTION 3.3 Realization Upon Receivables. On behalf of the Issuer, the

Servicer shall use reasonable efforts, consistent with its customary

standards, policies and procedures, to repossess or otherwise convert the

ownership of the Financed Vehicle securing any Receivable as to which the

Servicer shall have determined to be a Defaulted Receivable or otherwise (and

shall specify any such Defaulted Receivable to the Indenture Trustee no later

than the Determination Date following the Collection Period in which the

Servicer shall have made such determination). The Servicer shall follow such

customary standards, policies and procedures as it shall deem necessary or

advisable in its servicing of comparable receivables, which may include

selling the Financed Vehicle at public or private sale. The Servicer shall be

entitled to recover from proceeds all reasonable expenses incurred by it in

the course of converting the Financed Vehicle into cash proceeds. The

Liquidation Proceeds (net of such expenses) realized in connection with any

such action with respect to a Receivable shall be deposited by the Servicer in

the Collection Account in the manner specified in Section 4.2 and shall be

applied to reduce (or to satisfy, as the case may be) the Purchase Amount of

the Receivable, if such Receivable is to be repurchased by the Depositor

pursuant to Section 2.3, or is to be purchased by the Servicer pursuant to

Section 3.7. The foregoing shall be subject to the provision that, in any case

in which the Financed Vehicle shall have suffered damage, the Servicer shall

not be required to expend funds in connection with the repair or the

repossession of such Financed Vehicle unless it shall determine in its

discretion that such repair and/or repossession will increase the Liquidation

Proceeds by an amount greater than the amount of such expenses.

 

      SECTION 3.4 Allocations of Collections. If an Obligor is obligated under

one or more Receivables and also under one or more other assets owned by the

Bank or assigned by the Bank to third parties, then any payment on any such

asset received from or on behalf of such Obligor shall, if identified as being

made with respect to a particular item or asset, be applied to such

 

 

 

                                      9

<PAGE>

 

item, and otherwise shall be allocated by the Bank in accordance with its

customary standards, policies and procedures.

 

      SECTION 3.5 Maintenance of Security Interests in Financed Vehicles. The

Servicer shall, in accordance with its customary procedures, take such steps

as are necessary to maintain perfection of the security interest created by

each Receivable in the related Financed Vehicle. The Issuer hereby authorizes

the Servicer to take such steps as are necessary to re-perfect such security

interest on behalf of the Issuer and the Indenture Trustee in the event of the

relocation of a Financed Vehicle or for any other reason, in either case, when

the Servicer has knowledge of the need for such re-perfection. In the event

that the assignment of a Receivable to the Issuer is insufficient, without a

notation on the related Financed Vehicle's certificate of title, or without

fulfilling any additional administrative requirements under the laws of the

state in which the Financed Vehicle is located, to transfer to the Issuer a

perfected security interest in the related Financed Vehicle, the Servicer

hereby agrees that the Servicer's listing as the secured party on the

certificate of title is deemed to be in its capacity as agent of the Issuer

and the Indenture Trustee and further agrees to hold such certificate of title

as the agent and custodian of the Issuer and the Indenture Trustee; provided

that the Servicer shall not, nor shall the Issuer or the Indenture Trustee

have the right to require that the Servicer, make any such notation on the

related Financed Vehicles' certificate of title or fulfill any such additional

administrative requirement of the laws of the state in which a Financed

Vehicle is located.

 

      SECTION 3.6 Covenants of Servicer. The Servicer shall not (i) release

the Financed Vehicle securing each such Receivable from the security interest

granted by such Receivable in whole or in part except in the event of payment

in full by or on behalf of the Obligor thereunder, (ii) impair the rights of

the Trust or the Indenture Trustee in the Receivables, or (iii) increase the

number of payments under a Receivable, increase the Amount Financed under a

Receivable or extend or forgive payments on a Receivable, except as provided

in Section 3.2. In the event that at the end of the scheduled term of any

Receivable, the outstanding principal amount thereof is such that the final

payment to be made by the related Obligor is larger than the regularly

scheduled payment of principal and interest made by such Obligor, the Servicer

may permit such Obligor to pay such remaining principal amount in more than

one payment of principal and interest; provided that the last such payment

shall be due on or prior to the Collection Period immediately preceding the

Class B Final Scheduled Payment Date.

 

      SECTION 3.7 Purchase of Receivables Upon Breach. (a) The Servicer, the

Depositor or the Owner Trustee, as the case may be, promptly shall inform the

other parties to this Agreement, in writing, upon the discovery of any breach

pursuant to Section 3.2, 3.5 or 3.6. Unless the breach shall have been cured

by the last day of the second Collection Period following such discovery (or,

at the Servicer's election, the last day of the first following Collection

Period), the Servicer shall purchase any Receivable materially and adversely

affected by such breach as determined by the Indenture Trustee (which shall

include any Receivable as to which a breach of Section 3.6 has occurred) at

the Purchase Amount (less any Liquidation Proceeds deposited, or to be

deposited, in the Collection Account with respect to such Receivable pursuant

to Section 3.3). In consideration of the purchase of such Receivable, the

Servicer shall remit the Purchase Amount in the manner specified in Section

4.5. For purposes of this Section 3.7, the Purchase Amount shall consist in

part of a release by the Servicer of all

 

 

 

                                       10

<PAGE>

 

rights of reimbursement with respect to Outstanding Advances on the

Receivable. The sole remedy of the Issuer, the Owner Trustee, the Indenture

Trustee, the Noteholders or the Certificateholders with respect to a breach

pursuant to Section 3.2, 3.5 or 3.6 shall be to require the Servicer to

purchase Receivables pursuant to this Section 3.7.

 

      (b) With respect to all Receivables purchased pursuant to this Section

3.7, the Issuer shall assign to the Servicer or the Depositor, as applicable,

without recourse, representation or warranty, all of the Issuer's right, title

and interest in and to such Receivables and all security and documents

relating thereto.

 

      SECTION 3.8 Servicer Fees. The Servicer shall be entitled to any

interest earned on the amounts deposited in the Collection Account during each

Collection Period plus all late fees, prepayment charges and other

administrative fees and expenses or similar charges, if any, allowed by

applicable law and the terms of the Receivables during each Collection Period

(the "Supplemental Servicing Fee"). The Servicer also shall be entitled to the

Servicing Fee, as provided herein.

 

      SECTION 3.9 Servicer's Certificate. On or prior to the Determination

Date for each Payment Date, the Servicer shall deliver to the Depositor, the

Owner Trustee, each Note Paying Agent and Certificate Paying Agent, the

Indenture Trustee and the Seller, with a copy to the Rating Agencies, a

Servicer's Certificate containing all information (including all specific

dollar amounts) necessary to make the transfers and distributions pursuant to

Sections 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 hereof, and Section 8.2 of the

Indenture for the Collection Period preceding the date of such Servicer's

Certificate, together with the written statements to be furnished by the Owner

Trustee to Certificateholders pursuant to Section 4.10 hereof and by the

Indenture Trustee to the Noteholders pursuant to Section 4.10 hereof and

Section 6.6 of the Indenture. Receivables purchased or to be purchased by the

Servicer or the Depositor shall be identified by the Servicer by the Seller's

account number with respect to such Receivable (as specified in the Schedule

of Receivables).

 

      SECTION 3.10 Annual Statement as to Compliance; Notice of Event of

Servicing Termination. (a) The Servicer shall deliver to the Owner Trustee,

the Indenture Trustee and each Rating Agency on or before March 31 of each

year beginning March 31, 2006, an Officer's Certificate, with respect to the

preceding 12-month period (or such shorter period in the case of the first

such certificate), stating that (i) a review of the activities of the Servicer

during the preceding 12-month period (or such shorter period in the case of

the first such certificate) and of its performance under this Agreement has

been made under such officer's supervision and (ii) to the best of such

officer's knowledge, based on such review, the Servicer has fulfilled all its

obligations under this Agreement throughout such period, or, if there has been

a default in the fulfillment of any such obligation, specifying each such

default known to such officer and the nature and status thereof. A copy of

such Officer's Certificate and the report referred to in Section 3.11 may be

obtained by any Certificateholder by a request in writing to the Owner

Trustee, or by any Noteholder or Person certifying that it is a Note Owner by

a request in writing to the Indenture Trustee, in either case addressed to the

applicable Corporate Trust Office. Upon the telephone request of the Owner

Trustee, the Indenture Trustee shall promptly furnish the Owner Trustee a list

of Noteholders as of the date specified by the Owner Trustee.

 

 

 

                                      11

<PAGE>

 

Notwithstanding the foregoing in this Section 3.10(a), the Servicer, in its

sole discretion, may deliver, in addition to or in lieu of the Officer's

Certificate referred to above in this Section 3.10(a), the report on

compliance with servicing criteria that would be required to be filed in

respect of the Trust under the Exchange Act if periodic reports under Section

15(d) of the Exchange Act, or any successor provision thereto, were required

to be filed in respect of the Trust.

 

      (b) The Servicer shall deliver to the Owner Trustee, the Indenture

Trustee and each Rating Agency promptly after having obtained knowledge

thereof, but in no event later than five (5) Business Days thereafter, written

notice in an Officer's Certificate of any event which with the giving of

notice or lapse of time, or both, would become an Event of Servicing

Termination under Section 7.1. The Seller shall deliver to the Owner Trustee,

the Indenture Trustee and each Rating Agency promptly after having obtained

knowledge thereof, but in no event later than five (5) Business Days

thereafter, written notice in an Officer's Certificate of any event which with

the giving of notice or lapse of time, or both, would become an Event of

Servicing Termination under clause (a)(ii) of Section 7.1.

 

      SECTION 3.11 Annual Independent Certified Public Accountant's Report.

The Servicer shall cause a firm of independent certified public accountants,

who may also render other services to the Servicer, the Seller or the

Depositor, to deliver to the Owner Trustee and the Indenture Trustee on or

before March 31 of each year beginning March 31, 2006 with respect to the

prior calendar year (or such shorter period in the case of the first such

report) a report addressed to the board of directors of the Servicer and to

the Owner Trustee and the Indenture Trustee, to the effect that such firm has

examined the automobile and light-duty truck receivable servicing functions of

the Servicer for such period, including the Servicer's procedures and records

relating to servicing of the Receivables under this Agreement and that, on the

basis of such examination, such firm is of the opinion that such servicing has

been conducted during such period in compliance with this Agreement except for

(a) such exceptions as such firm believes to be immaterial and (b) such other

exceptions as shall be set forth in such firm's report. In addition, such

report shall state that such firm has compared the mathematical calculations

of each amount set forth in the Servicer's Certificates forwarded by the

Servicer pursuant to Section 3.9 during the period covered by such report

(which shall be the preceding calendar year or such shorter period in the case

of the first such report) with the Servicer's computer reports which were the

source of such amounts and that on the basis of such comparison, such firm is

of the opinion that such amounts are in agreement, except for such exceptions

as such firm believes to be immaterial and such other exceptions as shall be

set forth in such statement. In addition, such report shall set forth the

procedures performed in conjunction with the examination and shall contain a

statement of such firm as to the accuracy of the amounts set forth in the

Servicer's Certificates delivered pursuant to Section 3.9 in such period.

Notwithstanding the foregoing in this Section 3.11, the Servicer, in its sole

discretion, may cause to be delivered, in lieu of the report referred to above

in this Section 3.11, the attestation report of a registered public accounting

firm that would be required to be filed in respect of the Trust under the

Exchange Act if periodic reports under Section 15(d) of the Exchange Act, or

any successor provision thereto, were required to be filed in respect of the

Trust.

 

 

 

                                      12

<PAGE>

 

      The report or attestation report, as applicable, will also indicate that

the firm is independent of the Servicer within the meaning of the Code of

Professional Ethics of the American Institute of Certified Public Accountants.

 

      SECTION 3.12 Access to Certain Documentation and Information Regarding

Receivables. The Servicer shall provide to the Certificateholders, the

Indenture Trustee and the Noteholders access to the Receivable Files in such

cases where the Certificateholders, the Indenture Trustee or the Noteholders

shall be required by applicable statutes or regulations to review such

documentation. Access shall be afforded without charge, but only upon

reasonable request and during the normal business hours at the respective

offices of the Servicer. Nothing in this Section 3.12 shall affect the

obligation of the Servicer to observe any applicable law prohibiting

disclosure of information regarding the Obligors, and the failure of the

Servicer to provide access to information as a result of such obligation shall

not constitute a breach of this Section 3.12.

 

      SECTION 3.13 Servicer Expenses. The Servicer shall be required to pay

all expenses incurred by it in connection with its activities hereunder,

including fees, expenses (including counsel fees and expenses) and

disbursements of the Owner Trustee and the Indenture Trustee, independent

accountants, taxes imposed on the Servicer and expenses incurred in connection

with distributions and reports to Noteholders and Certificateholders.

 

      SECTION 3.14 Insurance. The Servicer, in accordance with its customary

servicing procedures and underwriting standards, shall require that each

Obligor shall have obtained and shall maintain comprehensive and collision

insurance covering the related Financed Vehicle as of the execution of the

Receivable. The Servicer shall enforce its rights under the Receivables to

require the Obligors to maintain comprehensive and collision insurance, in

accordance with the Servicer's customary practices and procedures with respect

to comparable new or used automobile and light-duty truck receivables that it

services for itself or others.

 

                                  ARTICLE IV

 

         DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO NOTEHOLDERS AND

                               CERTIFICATEHOLDERS

 

      SECTION 4.1 Accounts. (a) The Servicer shall, prior to the Closing Date,

cause to be established and maintained an Eligible Deposit Account in the name

"JPMorgan Chase Bank, National Association, as Indenture Trustee, as secured

party from USAA Auto Owner Trust 2005-3", initially at the corporate trust

department of the Indenture Trustee, which shall be designated as the

"Collection Account". The Collection Account shall be under the sole dominion

and control of the Indenture Trustee; provided, that the Servicer may make

deposits to and direct the Indenture Trustee in writing to make withdrawals

from the Collection Account in accordance with the terms of the Basic

Documents. The Collection Account will be established and maintained pursuant

to an account agreement which specifies New York law as the governing law. In

addition, the Collection Account shall be established and maintained at an

institution which agrees in writing that for so long as the Notes are

outstanding it will comply with entitlement orders (as defined in Article 8 of

the UCC) originated by the Indenture Trustee

 

 

 

                                      13

<PAGE>

 

without further consent of the Issuer. All monies deposited from time to time

in the Collection Account shall be held by the Indenture Trustee as secured

party for the benefit of the Noteholders and, after payment in full of the

Notes, as agent of the Issuer and as part of the Trust Property. All deposits

to and withdrawals from the Collection Account shall be made only upon the

terms and conditions of the Basic Documents.

 

      If the Servicer is required to remit collections pursuant to the first

sentence of Section 4.2, all amounts held in the Collection Account shall, to

the extent permitted by applicable law, rules and regulations, be invested, as

directed in writing by the Servicer, by the bank or trust company then

maintaining the Collection Account in specified Permitted Investments that

mature not later than the Business Day immediately prior to the Payment Date

for the Collection Period to which such amounts relate (or in the case of the

Special Payment Date, the portion of such funds needed to make the final

payment on the Class A-1 Notes shall mature not later than the Business Day

immediately prior to the Special Payment Date) and such Permitted Investments

shall be held to maturity. All interest and other income (net of losses and

investment expenses) on funds on deposit in the Collection Account shall be

withdrawn from the Collection Account at the written direction of the Servicer

and shall be paid to the Servicer. The Indenture Trustee shall not be liable

for investment losses in Permitted Investments made in accordance with

directions from the Servicer. In the event that the Collection Account is no

longer to be maintained at the corporate trust department of the Indenture

Trustee, the Servicer shall, with the Indenture Trustee's or Issuer's

assistance as necessary, cause an Eligible Deposit Account to be established

as the Collection Account within ten (10) Business Days (or such longer period

not to exceed thirty (30) calendar days as to which each Rating Agency may

consent) and give written notice of the location and account number of such

account to the Indenture Trustee.

 

      (b) The Servicer shall, prior to the Closing Date, establish and

maintain an administrative subaccount within the Collection Account at the

bank or trust company then maintaining the Collection Account, which

subaccount shall be designated as the "Principal Distribution Account". The

Principal Distribution Account is established and maintained solely for

administrative purposes.

 

      (c) The Servicer shall, prior to the Closing Date, cause an Eligible

Deposit Account to be established and maintained, in the name "USAA Auto Owner

Trust 2005-3 Certificate Distribution Account", initially at the corporate

trust department of the Owner Trustee, which shall be designated as the

"Certificate Distribution Account". The Certificate Distribution Account shall

be under the sole dominion and control of the Owner Trustee. All monies

deposited from time to time in the Certificate Distribution Account pursuant

to this Agreement and the Indenture shall be held by the Owner Trustee as part

of the Trust Property and shall be applied as provided in the Basic Documents.

In the event that the Certificate Distribution Account is no longer to be

maintained at the corporate trust department of the Owner Trustee, the

Servicer shall cause an Eligible Deposit Account to be established as the

Certificate Distribution Account within ten (10) Business Days (or such longer

period not to exceed thirty (30) calendar days as to which each Rating Agency

may consent) and give written notice of the location and account number of

such account to the Owner Trustee. The Certificate Distribution

 

 

 

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Account will be established and maintained pursuant to an account agreement

which specifies New York law as the governing law.

 

      SECTION 4.2 Collections. The Servicer shall remit to the Collection

Account within two (2) Business Days of the receipt thereof (i) all payments

by or on behalf of the Obligors (but excluding Purchased Receivables) and (ii)

all Liquidation Proceeds, both as collected during the Collection Period;

provided that the Bank, so long as it is acting as the Servicer and no Event

of Servicing Termination has occurred and is continuing, may make remittances

of collections on a less frequent basis than that specified in the immediately

preceding sentence. It is understood that such less frequent remittances may

be made only on the specific terms and conditions set forth below in this

Section 4.2 and only for so long as such terms and conditions are fulfilled.

Accordingly, notwithstanding the provisions of the first sentence of this

Section 4.2, the Servicer shall remit collections received during a Collection

Period to the Collection Account in immediately available funds on the

Business Day preceding the related Payment Date (or in the case of the Special

Payment Date, on the Business Day preceding the Special Payment Date) but only

for so long as the Monthly Remittance Condition is satisfied. The Owner

Trustee or the Indenture Trustee shall not be deemed to have knowledge of any

event or circumstance in the definition of Monthly Remittance Condition that

would require remittance by the Servicer to the Collection Account within two

(2) Business Days of receipt as aforesaid unless the Owner Trustee or the

Indenture Trustee has received written notice of such event or circumstance

from the Seller or the Servicer in an Officer's Certificate or from the

holders of Notes evidencing not less than 25% of the principal amount of the

Notes Outstanding or from the Certificateholders of Certificates evidencing

not less than 25% of the Certificate Balance or a Trustee Officer in the

Corporate Trust Office with knowledge hereof or familiarity herewith has

actual knowledge of such event or circumstance. For purposes of this Article

IV the phrase "payments by or on behalf of Obligors" shall mean payments made

by Persons other than the Servicer or by other means.

 

      SECTION 4.3 Application of Collections. For the purposes of this

Agreement, as of the close of business on the last day of each Collection

Period, all collections for the Collection Period with respect to each

Receivable (other than a Purchased Receivable) shall be applied by the

Servicer first to the amount of interest accrued on such Receivable to the

date of receipt, then to reduce the scheduled principal amount outstanding on

the Receivable to the extent of the remaining scheduled payment and then to

any outstanding fees under the terms of the Receivable. Amounts paid by the

Depositor, the Seller or the Servicer in respect of Purchased Receivables

shall be allocated first to any interest accrued on the related Receivable and

then to the Principal Balance of the related Receivable.

 

      SECTION 4.4 Advances. (a) As of each Determination Date, the Servicer

shall make a payment with respect to each Receivable (other than a Defaulted

Receivable) equal to the excess, if any, of (x) the product of the Principal

Balance of such Receivable as of the first day of the related Collection

Period and one-twelfth of the Annual Percentage Rate (as adjusted downward, as

the case may be, in accordance with the Servicemembers Civil Relief Act or

pursuant to Section 3.2) on such Receivable (calculated on the basis of a

360-day year of twelve 30-day months), over (y) the interest actually received

by the Servicer with respect to such Receivable from the Obligor or from

payment of the Purchase Amount during or with respect to such Collection

Period. The Servicer shall deposit all such Advances into the Collection

Account in

 

 

 

                                      15

<PAGE>

 

immediately available funds no later than, 11:00 a.m. New York City time, on

the Determination Date. Notwithstanding the foregoing, the Servicer may elect

not to make any Advance with respect to a Receivable to the extent that the

Servicer, in its sole discretion, shall determine that such Advance is not

recoverable from subsequent payments on such Receivable or from withdrawals

from the Reserve Account. To the extent that the amount set forth in clause

(y) above with respect to a Receivable is greater than the amount set forth in

clause (x) above with respect thereto, such excess amount shall be distributed

to the Servicer pursuant to Section 4.6(b). In addition, in the event that a

Receivable becomes a Defaulted Receivable, Outstanding Advances in respect of

that Receivable shall be reimbursed to the extent of interest Collections with

respect to such Receivable and, if such amounts are insufficient, from amounts

on deposit in the Reserve Account, and if such amounts are not sufficient,

from amounts on deposit in the Collection Account. The Servicer shall not make

any advance with respect to principal of Receivables.

 

      (b) The Servicer shall deposit in the Collection Account the aggregate

Advances on the Receivables pursuant to Section 4.4(a). To the extent that the

Servicer fails to make an Advance pursuant to Section 4.4(a) on the date

required, the Servicer shall so notify the Issuer and the Indenture Trustee in

writing specifying the amount of the Advance and the Receivable to which such

Advance related, and the Indenture Trustee shall withdraw such amount (or, if

determinable by the Servicer, such portion of such amount as does not

represent advances for delinquent interest) from the Reserve Account and

deposit such amount in the Collection Account.

 

      SECTION 4.5 Additional Deposits. (a) The Depositor and the Servicer

shall deposit in the Collection Account the aggregate Purchase Amounts with

respect to Purchased Receivables pursuant to Sections 2.3 and 3.7,

respectively, and the Servicer shall deposit therein all Purchase Amounts to

be paid under Section 8.1. All such deposits with respect to a Collection

Period shall be made, in immediately available funds, on the Business Day

preceding the Payment Date related to such Collection Period (or in the case

of the Special Payment Date, the Business Day preceding the Special Payment

Date).

 

      (b) The Indenture Trustee, in accordance with the written instructions

of the Servicer, shall, on each Payment Date, and the Special Payment Date to

the extent such amounts are for distribution to the Class A-1 Notes, make a

withdrawal from the Reserve Account (i) first, in an amount equal to the

Reserve Account Excess Amount for such Payment Date and (ii) second, in an

amount equal to the amount (if positive) calculated by the Servicer pursuant

to the second sentence of Section 4.6(b).

 

      (c) The Indenture Trustee, in accordance with the written instructions

of the Servicer, shall, on each Payment Date, and the Special Payment Date to

the extent such amounts are for distribution to the Class A-1 Notes, make a

withdrawal from the Yield Supplement Account in an amount equal to the Yield

Supplement Account Draw Amount for such Payment Date and deposit such amount

into the Collection Account.

 

      SECTION 4.6 Distributions. (a) On each Payment Date, the Indenture

Trustee shall cause the transfer and distribution of the amounts set forth in

the Servicer's Certificate for such

 

 

 

                                      16

<PAGE>

 

Payment Date from the Collection Account to the Servicer, in immediately

available funds, for repayment of Outstanding Advances pursuant to Section

4.4(a).

 

      (b) The Servicer shall on or before each Determination Date calculate

the Available Collections, the Yield Supplement Account Draw Amount, the

Reserve Account Excess Amount, the Available Funds, the Servicing Fee and all

unpaid Servicing Fees from prior Collection Periods, if any, the Accrued Class

A Note Interest, the Accrued Class B Certificate Interest, the Priority Note

Principal Payment, if any, and the Regular Principal Distribution Amount. In

addition, the Servicer shall calculate on or before each Determination Date

the difference, if any, between the Total Required Payment and the Available

Funds and, pursuant to Section 4.5(b), the Indenture Trustee shall withdraw

funds from the Reserve Account in an amount equal to the lesser of such

difference (if positive) or the balance of such Reserve Account.

 

      (c) On each Payment Date, the Servicer shall instruct the Indenture

Trustee (based on the information contained in the Servicer's Certificate

delivered on or before the related Determination Date pursuant to Section

3.9), to make the following withdrawals from the Collection Account and make

deposits, distributions and payments, to the extent of Available Funds for

such Payment Date (plus funds, if any, deposited in the Collection Account

from the Reserve Account pursuant to Section 4.5(b)), in the following order

of priority:

 

            (i) first, to the Servicer, the Servicing Fee and all unpaid

      Servicing Fees from prior Collection Periods;

 

            (ii) second, to the Noteholders, the Accrued Class A Note Interest

      for such Payment Date; provided that if there are not sufficient funds

      available to pay the entire amount of the Accrued Class A Note Interest,

      the amounts available shall be applied to the payment of such interest

      on the Class A Notes on a pro rata basis;

 

            (iii) third, to the Noteholders, the Priority Note Principal

      Payment, if any, for such Payment Date to be distributed in the same

      priority as described under Section 4.6(d) of this Agreement;

 

            (iv) fourth, to the Certificate Distribution Account, the Accrued

      Class B Certificate Interest for such Payment Date;

 

            (v) fifth, to the Principal Distribution Account, the Regular

      Principal Distribution Amount (less any amounts distributed under clause

      (iii) above) for such Payment Date;

 

            (vi) sixth, if such Payment Date is a Final Scheduled Payment Date

      for any Class, to the Principal Distribution Account, the amount

      necessary to reduce the remaining principal amount of such Class to zero

      after giving effect to the amount, if any, to be applied on such Payment

      Date to such Class from funds deposited pursuant to clauses (iii) and

      (v) above;

 

 

 

                                      17

<PAGE>

 

            (vii) seventh, to the Reserve Account, the amount, if any,

      required to reinstate the amount in the Reserve Account up to the

      Specified Reserve Balance for such Payment Date;

 

            (viii) eighth, to the Indenture Trustee and the Owner Trustee, all

      amounts due for fees, expenses and indemnification pursuant to Section

      6.7 of the Indenture and Section 7.1 of the Trust Agreement,

      respectively, and not previously paid; and

 

            (ix) ninth, to the Depositor, any remaining Available Funds for

      such Payment Date.

 

      Notwithstanding the foregoing in this Section 4.6(c),

 

                 (A) if the Class A Notes have been accelerated after an Event

          of Default specified in Section 5.1(iii) of the Indenture, then the

          Available Funds shall instead be applied in the following order of

          priority:

 

                  (1)    to the Indenture Trustee and the Owner Trustee, all

                        amounts due for fees, expenses and indemnification

                        under Section 6.7 of the Indenture, Section 7.1 of the

                        Trust Agreement and Section 6.2 of this Agreement,

                        respectively, and not previously paid;

 

                  (2)    to the Servicer, the Servicing Fee and all unpaid

                        Servicing Fees from prior Collection Periods;

 

                  (3)    to the Noteholders, the Accrued Class A Note Interest

                        for such Payment Date; provided that if there are not

                        sufficient funds available to pay the entire amount of

                        the Accrued Class A Note Interest, the amounts

                        available shall be applied to the payment of such

                        interest on the Class A Notes on a pro rata basis;

 

                  (4)     to the Noteholders, the Priority Note Principal

                        Payment, if any, for such Payment Date to be

                        distributed in the same manner as described under

                        Section 4.6(d) of this Agreement;

 

                   (5)    to the Certificate Distribution Account, the Accrued

                        Class B Certificate Interest for such Payment Date;

 

                  (6)    first, to the holders of the Class A-1 Notes in

                        reduction of principal until the principal amount of

                        the Class A-1 Notes has been paid in full and then to

                        the holders of the Class A-2 Notes, the Class A-3

                        Notes and the Class A-4 Notes on a pro rata basis in

                        reduction of principal until the principal amount of

                        such Class A Notes has been paid in full;

 

                  (7)    to the Certificate Distribution Account, the

                        Certificate Balance of the Class B Certificates; and

 

 

 

                                      18

<PAGE>

 

                  (8)    to the Depositor, any remaining Available Funds for

                        such Payment Date; and

 

                 (B) if the Class A Notes have been accelerated after an Event

          of Default specified in Section 5.1(i), (ii), (iv) or (v) of the

          Indenture, then the Available Funds shall instead be applied in the

          following order of priority:

 

                   (1)    to the Indenture Trustee and the Owner Trustee, all

                        amounts due for fees, expenses and indemnification

                        under Section 6.7 of the Indenture, Section 7.1 of the

                        Trust Agreement and Section 6.2 of this Agreement,

                        respectively, and not previously paid;

 

                  (2)    to the Servicer, the Servicing Fee and all unpaid

                        Servicing Fees from prior Collection Periods;

 

                   (3)    to the Noteholders, the Accrued Class A Note Interest

                        for such Payment Date; provided that if there are not

                        sufficient funds available to pay the entire amount of

                        the Accrued Class A Note Interest, the amounts

                        available shall be applied to the payment of such

                        interest on the Class A Notes on a pro rata basis;

 

                  (4)    first, to the holders of the Class A-1 Notes in

                        reduction of principal until the principal amount of

                        the Class A-1 Notes has been paid in full and then to

                        the holders of the Class A-2 Notes, the Class A-3

                        Notes and the Class A-4 Notes on a pro rata basis in

                        reduction of principal until the principal amount of

                        such Class A Notes has been paid in full;

 

                  (5)    to the Certificate Distribution Account, the sum of

                        (x) the Accrued Class B Certificate Interest for such

                        Payment Date and (y) the Certificate Balance of the

                        Class B Certificates; and

 

                  (6)    to the Depositor, any remaining Available Funds for

                        such Payment Date.

 

      (d) If the Notes have not been accelerated because of an Event of

Default, then on each Payment Date the Servicer shall instruct the Indenture

Trustee (based on the information contained in the Servicer's Certificate

delivered on or before the related Determination Date pursuant to Section

3.9), to withdraw the funds deposited in the Principal Distribution Account on

such Payment Date and make distributions and payments in the following order

of priority:

 

            (i)    first, to the holders of the Class A-1 Notes on a pro rata

                  basis in reduction of principal until the principal amount

                  of the Class A-1 Notes has been paid in full;

 

 

 

                                      19

<PAGE>

 

            (ii)   second, to the holders of the Class A-2 Notes on a pro rata

                  basis in reduction of principal until the principal amount

                  of the Class A-2 Notes has been paid in full;

 

            (iii) third, to the holders of the Class A-3 Notes on a pro rata

                  basis in reduction of principal until the principal amount

                  of the Class A-3 Notes has been paid in full;

 

            (iv)   fourth, to the holders of the Class A-4 Notes on a pro rata

                  basis in reduction of principal until the principal amount

                  of the Class A-4 Notes has been paid in full; and

 

            (v)    fifth, to the Certificate Distribution Account in reduction

                  of the Certificate Balance of the Class B Certificates until

                  the Certificate Balance of the Class B Certificates has been

                  reduced to zero.

 

Any funds remaining on deposit in the Principal Distribution Account shall be

paid to the Indenture Trustee and the Owner Trustee to the extent, if any, of

amounts due to them hereunder that are unpaid and then to the Depositor.

 

            If the Notes have been accelerated because of an Event of Default,

then on each Payment Date the Servicer shall instruct the Indenture Trustee

(based on the information contained in the Servicer's Certificate delivered on

or before the related Determination Date pursuant to Section 3.9), to withdraw

the funds deposited in the Principal Distribution Account on such Payment Date

and pay them to the holders of the Class A-1 Notes until the principal amount

of the Class A-1 Notes has been paid in full and then to the holders of the

Class A-2 Notes, Class A-3 Notes and Class A-4 Notes on a pro rata basis in

reduction of principal until the principal amount of the Notes has been paid

in full.

 

            (e) Notwithstanding anything to the contrary contained herein,

with respect to the Special Payment Date, the instructions provided by the

Servicer to the Indenture Trustee pursuant to Section 4.6(c) and Section

4.6(d) (based on the information contained in the Servicer's Certificate

delivered on or before the related Determination Date pursuant to Section 3.9)

shall specify that on the Special Payment Date, distributions shall be made

from the Collection Account and the Principal Distribution Account in respect

of the Class A-1 Notes. The portion of the Available Funds (plus funds, if

any, deposited in the Collection Account from the Reserve Account pursuant to

Section 4.5(b)) distributed from the Collection Account and the Principal

Distribution Account in respect of the Class A-1 Notes on the Special Payment

Date, shall be allocated in the order and priority set forth in Section 4.6(c)

and Section 4.6(d) as though such amounts were to be distributed on the

November 2006 Payment Date.

 

      SECTION 4.7 Reserve Account. (a) (i) The Servicer shall, prior to the

Closing Date, cause to be established and maintained an Eligible Deposit

Account in the name "JPMorgan Chase Bank, National Association, as Indenture

Trustee, as secured party from USAA Auto Owner Trust 2005-3", initially at the

corporate trust department of the Indenture Trustee, which shall be designated

as the "Reserve Account" (the Reserve Account, together with the Collection

Account (including the Principal Distribution Account) and the Yield

Supplement Account, the

 

 

 

                                      20

<PAGE>

 

"Trust Accounts"). The Reserve Account shall be under the sole dominion and

control of the Indenture Trustee; provided, that the Servicer may make

deposits to the Reserve Account in accordance with the Basic Documents. The

Reserve Account will be established and maintained pursuant to an account

agreement which specifies New York law as the governing law. In addition, the

Reserve Account shall be established and maintained at an institution which

agrees in writing that for so long as the Notes are Outstanding it will comply

with entitlement orders (as defined in Article 8 of the UCC) originated by the

Indenture Trustee without further consent of the Issuer. On the Closing Date,

the Depositor shall deposit the Reserve Initial Deposit into the Reserve

Account. The Reserve Account and all amounts, securities, investments,

financial assets and other property deposited in or credited to the Reserve

Account (such amounts, the "Reserve Account Property") shall be held by the

Indenture Trustee as secured party for the benefit of the Noteholders and,

after payment in full of the Notes, as agent of the Owner Trustee and as part

of the Trust Property, and all deposits to and withdrawals from there from

shall be made only upon the terms and conditions of the Basic Documents.

 

      The Reserve Account Property shall, to the extent permitted by

applicable law, rules and regulations, be invested, as directed in writing by

the Depositor, by the bank or trust company then maintaining the Reserve

Account in Permitted Investments that mature not later than the next Payment

Date (or in the case of the Special Payment Date, the portion of such funds

needed to make final payment on the Class A-1 Notes shall mature not later

than the Business Day immediately prior to the Special Payment Date) or such

later date that satisfies the Rating Agency Condition, and such Permitted

Investments shall be held to maturity. If JPMorgan Chase Bank, National

Association is the Indenture Trustee, in the absence of written direction, all

funds shall be retained uninvested. All interest and other income (net of

losses and investment expenses) on funds on deposit in the Reserve Account

shall be deposited therein. The Indenture Trustee shall not be liable for

investment losses in Permitted Investments made in accordance with directions

from the Depositor. In the event the Reserve Account is no longer to be

maintained at the corporate trust department of the Indenture Trustee, the

Servicer shall, with the Indenture Trustee's or Owner Trustee's assistance as

necessary, cause an Eligible Deposit Account to be established as the Reserve

Account within ten (10) Business Days (or such longer period not to exceed

thirty (30) calendar days as to which each Rating Agency may consent) and give

written notice of the location and account number of such account to the

Indenture Trustee.

 

            (ii) With respect to Reserve Account Property:

 

                  (A) any Reserve Account Property that is a "financial asset"

            as defined in Section 8-102(a)(9) of the UCC shall be physically

             delivered to, or credited to an account in the name of, the

            institution maintaining the Reserve Account in accordance with

            such institution's customary procedures such that such institution

            establishes a "securities entitlement" in favor of the Indenture

            Trustee with respect thereto; and

 

                  (B) any Reserve Account Property that is held in deposit

            accounts shall be held solely in the name of the Indenture Trustee

            at one or more depository institutions having the Required Rating

            and each such deposit account shall be

 

 

 

                                      21

<PAGE>

 

            subject to the exclusive custody and control of the Indenture

            Trustee and the Indenture Trustee shall have sole signature

            authority with respect thereto.

 

            (iii) Except for any deposit accounts specified in clause (ii)(B)

      above, the Reserve Account shall only be invested in securities or in

      other assets which the institution maintaining the Reserve Account

      agrees to treat as "financial assets" as defined in Section 8-102(a)(9)

      of the UCC.

 

      (b) If the Servicer pursuant to Section 4.4 determines on or before any

Determination Date that it is required to make an Advance and does not do so

from its own funds, the Servicer shall promptly instruct the Indenture Trustee

in writing to draw funds, in an amount specified by the Servicer, from the

Reserve Account and deposit them in the Collection Account to cover any

shortfall. Such payment shall be deemed to have been made by the Servicer

pursuant to Section 4.4 for purposes of making distributions pursuant to this

Agreement, but shall not otherwise satisfy the Servicer's obligation to

deliver the amount of the Advances to the Indenture Trustee, and the Servicer

shall within two (2) Business Days replace any funds in the Reserve Account so

used.

 

      (c) Following the payment in full of the aggregate principal amount of

the Notes and the Certificate Balance and of all other amounts owing or to be

distributed hereunder or under the Indenture or the Trust Agreement to

Noteholders and Certificateholders, the Indenture Trustee and the Owner

Trustee and the termination of the Trust, any remaining Reserve Account

Property shall be distributed to the Depositor.

 

      (d) The Depositor shall be permitted to sell, transfer, convey or assign

in any manner its rights in the Reserve Account under Section 4.7(c), together

with its rights to receive amounts under Sections 4.6(c) and 4.6(d) of this

Agreement and Sections 5.4(b)(v), 8.2(c) and 8.2(d) of the Indenture in

accordance with the priority of payments, provided that each of the following

conditions shall be satisfied:

 

            (i) the Rating Agency Condition is satisfied with respect to such

      action;

 

            (ii) such action shall not, as evidenced by an Opinion of Counsel,

      cause the Issuer to be characterized as an association (or a publicly

      traded partnership) taxable as a corporation for federal income tax

      purposes; and

 

            (iii) the transferee or assignee agrees in writing to take

      positions for federal income tax purposes consistent with the federal

      income tax positions taken previously by the Depositor.

 

      SECTION 4.8 Yield Supplement Account. (a) (i) The Servicer shall, prior

to the Closing Date, cause to be established and maintained an Eligible

Deposit Account in the name "JPMorgan Chase Bank, National Association, as

Indenture Trustee, as secured party from USAA Auto Owner Trust 2005-3",

initially at the corporate trust department of the Indenture Trustee, which

shall be designated as the "Yield Supplement Account." The Yield Supplement

Account shall be under the sole dominion and control of the Indenture Trustee.

The Yield Supplement Account will be established and maintained pursuant to an

account agreement which

 

 

 

                                      22

<PAGE>

 

specifies New York law as the governing law. In addition, the Yield Supplement

Account shall be established and maintained at an institution which agrees in

writing that for so long as the Notes are Outstanding it will comply with

entitlement orders (as defined in Article 8 of the UCC) originated by the

Indenture Trustee without further consent of the Issuer. On the Closing Date,

the Depositor shall deposit the Yield Supplement Account Initial Deposit into

the Yield Supplement Account. No additional deposits to the Yield Supplement

Account shall be made. The Yield Supplement Account and all amounts,

securities, investments, financial assets and other property deposited in or

credited to the Yield Supplement Account (such amounts, the "Yield Supplement

Account Property") shall be held by the Indenture Trustee as secured party for

the benefit of the Noteholders and, after payment in full of the Notes, as

agent of the Owner Trustee and as part of the Trust Property, and all

withdrawals from there from shall be made only upon the terms and conditions

of the Basic Documents.

 

      The Yield Supplement Account Property shall, to the extent permitted by

applicable law, rules and regulations, be invested, as directed in writing by

the Depositor, by the bank or trust company then maintaining the Yield

Supplement Account in Permitted Investments that mature not later than the

next Payment Date (or in the case of the Special Payment Date, the portion of

such needed to make final payment on the Class A-1 Notes shall not mature

later than the Business Day immediately prior to the Special Payment Date) or

such later date that satisfies the Rating Agency Condition, and such Permitted

Investments shall be held to maturity. If JPMorgan Chase Bank, National

Association is the Indenture Trustee, in the absence of written direction, all

funds shall be retained uninvested. All interest and other income (net of

losses and investment expenses) on funds on deposit in the Yield Supplement

Account shall be deposited therein. The Indenture Trustee shall not be liable

for investment losses in Permitted Investments made in accordance with

directions from the Depositor. In the event the Yield Supplement Account is no

longer to be maintained at the corporate trust department of the Indenture

Trustee, the Servicer shall, with the Indenture Trustee's or Owner Trustee's

assistance as necessary, cause an Eligible Deposit Account to be established

as the Yield Supplement Account within ten (10) Business Days (or such longer

period not to exceed thirty (30) calendar days as to which each Rating Agency

may consent) and give written notice of the location and account number of

such account to the Indenture Trustee.

 

            (ii) With respect to Yield Supplement Account Property:

 

                  (A) any Yield Supplement Account Property that is a

             "financial asset" as defined in Section 8-102(a)(9) of the UCC

            shall be physically delivered to, or credited to an account in the

            name of, the institution maintaining the Yield Supplement Account

            in accordance with such institution's customary procedures such

            that such institution establishes a "securities entitlement" in

            favor of the Indenture Trustee with respect thereto; and

 

                  (B) any Yield Supplement Account Property that is held in

            deposit accounts shall be held solely in the name of the Indenture

            Trustee at one or more depository institutions having the Required

            Rating and each such deposit account shall be subject to the

            exclusive custody and control of the Indenture Trustee and the

            Indenture Trustee shall have sole signature authority with respect

            thereto.

 

 

 

                                      23

<PAGE>

 

            (iii) Except for any deposit accounts specified in clause (ii)(B)

      above, the Yield Supplement Account shall only be invested in securities

      or in other assets which the institution maintaining the Yield

      Supplement Account agrees to treat as "financial assets" as defined in

      Section 8-102(a)(9) of the UCC.

 

      (b) Following the payment in full of the aggregate principal amount of

the Notes and the Certificate Balance and of all other amounts owing or to be

distributed hereunder or under the Indenture or the Trust Agreement to

Noteholders and Certificateholders, the Indenture Trustee and the Owner

Trustee and the termination of the Trust, any remaining Yield Supplement

Account Property shall be distributed to the Depositor.

 

      SECTION 4.9 Net Deposits. For so long as (i) the Bank shall be the

Servicer and (ii) the Servicer shall be entitled pursuant to Section 4.2 to

remit collections on a monthly basis rather than within two (2) Business Days

of receipt, the Bank may make the remittances pursuant to Sections 4.2 and 4.5

above, net of amounts to be distributed to the Bank pursuant to Section

4.6(c). Nonetheless, the Servicer shall account for all of the above described

remittances and distributions except for the Supplemental Servicing Fee in the

Servicer's Certificate as if the amounts were deposited and/or transferred

separately.

 

      SECTION 4.10 Statements to Noteholders and Certificateholders. On the

Business Day prior to each Payment Date (or in the case of the Special Payment

Date, on the Business Day prior to the Special Payment Date), the Servicer

shall provide to