EXECUTION COPY
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TRUST AGREEMENT
among
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor,
THE BANK OF NEW YORK,
as Owner Trustee
and
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
Dated February 13, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions........................................................................................ 1
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SECTION 1.01. Capitalized Terms......................................................................... 1
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SECTION 1.02. Other Definitional Provisions............................................................. 3
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ARTICLE II Organization....................................................................................... 4
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SECTION 2.01. Name...................................................................................... 4
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SECTION 2.02. Office.................................................................................... 4
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SECTION 2.03. Purposes and Powers....................................................................... 4
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SECTION 2.04. Appointment of Owner Trustee and Delaware Trustee......................................... 5
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SECTION 2.05. Initial Capital Contribution of Owner Trust Estate........................................ 5
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SECTION 2.06. Declaration of Trust...................................................................... 5
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SECTION 2.07. Liability of the Depositor and the Certificateholders..................................... 6
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SECTION 2.08. Title to Trust Property................................................................... 6
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SECTION 2.09. Situs of Trust............................................................................ 6
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SECTION 2.10. Representations and Warranties of the Depositor........................................... 6
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ARTICLE III Trust Certificates and Transfer of Interests....................................................... 8
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SECTION 3.01. Initial Ownership......................................................................... 8
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SECTION 3.02. The Trust Certificates.................................................................... 8
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SECTION 3.03. Authentication of Trust Certificates...................................................... 8
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SECTION 3.04. Registration of Transfer and Exchange of Trust Certificates............................... 8
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SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates................................... 10
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SECTION 3.06. Persons Deemed Owners..................................................................... 11
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SECTION 3.07. Access to List of Certificateholders' Names and Addresses................................. 11
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SECTION 3.08. Maintenance of Office or Agency........................................................... 11
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SECTION 3.09. Appointment of Paying Agent............................................................... 11
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ARTICLE IV Actions by Owner Trustee........................................................................... 12
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SECTION 4.01. Prior Notice to Certificateholders with Respect to Certain Matters........................ 12
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SECTION 4.02. Action by Certificateholders with Respect to Certain Matters.............................. 13
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SECTION 4.03. Action by Certificateholders with Respect to Bankruptcy................................... 13
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SECTION 4.04. Restrictions on Certificateholders' Power................................................. 13
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SECTION 4.05. Majority Control.......................................................................... 13
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ARTICLE V Application of Trust Funds; Certain Duties......................................................... 13
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[SECTION 5.01. [Reserved]]............................................................................... 13
SECTION 5.02. Application of Trust Funds................................................................ 14
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SECTION 5.03. Method of Payment......................................................................... 14
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SECTION 5.04. No Segregation of Monies; No Interest..................................................... 14
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SECTION 5.05. Accounting and Reports to the Certificateholders, the Internal Revenue
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Service and Others........................................................................ 14
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SECTION 5.06. Signature on Returns...................................................................... 15
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ARTICLE VI Authority and Duties of Owner Trustee.............................................................. 15
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SECTION 6.01. General Authority......................................................................... 15
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SECTION 6.02. General Duties............................................................................ 16
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SECTION 6.03. Action upon Instruction................................................................... 16
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SECTION 6.04. No Duties Except as Specified in this Agreement or in Instructions........................ 17
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SECTION 6.05. No Action Except Under Specified Documents or Instructions................................ 17
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SECTION 6.06. Restrictions.............................................................................. 17
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SECTION 6.07. Issuance of Notes......................................................................... 17
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ARTICLE VII Concerning the Owner Trustee and the Delaware Trustee.............................................. 17
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SECTION 7.01. Acceptance of Trusts and Duties........................................................... 17
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SECTION 7.02. Furnishing of Documents................................................................... 19
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SECTION 7.03. Representations and Warranties of the Owner Trustee....................................... 19
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SECTION 7.04. Representations and Warranties of the Delaware Trustee.................................... 20
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SECTION 7.05. Reliance; Advice of Counsel............................................................... 21
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SECTION 7.06. Not Acting in Individual Capacity......................................................... 21
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SECTION 7.07. Owner Trustee and Delaware Trustee Not Liable for Trust Certificates or Receivables....... 22
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SECTION 7.08. Owner Trustee and Delaware Trustee May Own Trust Certificates and Notes................... 22
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ARTICLE VIII Compensation of Owner Trustee and Delaware Trustee................................................. 22
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SECTION 8.01. Owner Trustee's and Delaware Trustee's Fees and Expenses.................................. 22
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SECTION 8.02. Indemnification........................................................................... 22
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SECTION 8.03. Payments to the Owner Trustee............................................................. 23
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ARTICLE IX Termination of Trust Agreement..................................................................... 23
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SECTION 9.01. Termination of Trust Agreement............................................................ 23
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ARTICLE X Successor Owner Trustees and Additional Owner Trustees............................................. 24
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SECTION 10.01. Eligibility Requirements for Owner Trustee and Delaware Trustee........................... 24
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SECTION 10.02. Resignation or Removal of Owner Trustee and Delaware Trustee.............................. 24
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SECTION 10.03. Successor Owner Trustee or Delaware Trustee............................................... 25
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SECTION 10.04. Merger or Consolidation of the Owner Trustee or Delaware Trustee.......................... 26
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SECTION 10.05. Appointment of Co-Trustee or Separate Trustee............................................. 26
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ARTICLE XI Miscellaneous...................................................................................... 27
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SECTION 11.01. Supplements and Amendments................................................................ 27
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SECTION 11.02. No Legal Title to Owner Trust Estate in Certificateholders................................ 29
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SECTION 11.03. Limitations on Rights of Others........................................................... 29
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SECTION 11.04. Notices................................................................................... 29
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SECTION 11.05. Severability.............................................................................. 29
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SECTION 11.06. Separate Counterparts..................................................................... 29
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SECTION 11.07. Successors and Assigns.................................................................... 30
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SECTION 11.08. Covenants of the Depositor................................................................ 30
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SECTION 11.09. No Petition............................................................................... 30
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SECTION 11.10. No Recourse............................................................................... 30
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SECTION 11.11. Headings.................................................................................. 30
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SECTION 11.12. GOVERNING LAW............................................................................. 31
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EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Transferor Certificate
EXHIBIT D Form of Investment Letter
EXHIBIT E [Reserved]
EXHIBIT F Forms of Receivables
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TRUST AGREEMENT
This TRUST AGREEMENT is dated February 13, 2001, among WORLD OMNI AUTO
RECEIVABLES LLC, a Delaware limited liability company, as depositor, THE BANK OF
NEW YORK, a New York banking corporation, as owner trustee and THE BANK OF NEW
YORK (DELAWARE), a Delaware banking corporation, as Delaware trustee.
ARTICLE I
Definitions
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SECTION 1.01. Capitalized Terms. For all purposes of this Agreement,
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the following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Administration Agreement
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dated as of the date hereof, among the Administrator, the Trust and the
Indenture Trustee, as amended from time to time.
"Administrator" shall mean World Omni, or any successor Administrator
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under the Administration Agreement.
"Agreement" shall mean this Trust Agreement, as the same may be
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amended and supplemented from time to time.
"Basic Documents" shall have the meaning assigned in the Indenture.
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"Benefit Plan" shall have the meaning assigned to such term in Section
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3.04.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
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Delaware Code, 12 Del. Code (S) 3801 et seq., as the same may be amended from
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time to time.
"Certificate of Trust" shall mean the Certificate of Trust in the form
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of Exhibit B filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
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register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" or "Holder" shall mean a Person in whose name a
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Trust Certificate is registered in the Certificate Register.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
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Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
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Trustee, the principal corporate trust office of the Owner Trustee located at
000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx Xxxxx, or at such
other address as the Owner Trustee may designate by notice to the
Certificateholders and the Depositor, or the principal corporate trust
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office of any successor Owner Trustee at the address designated by such
successor Owner Trustee by notice to the Certificateholders and the Depositor.
"Delaware Trustee" shall mean The Bank of New York (Delaware), a
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Delaware banking corporation, not in its individual capacity, but solely as
Delaware Trustee under this Agreement, and any successor Delaware Trustee
hereunder.
"Depositor" shall mean World Omni Auto Receivables LLC in its capacity
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as depositor hereunder.
"ERISA" shall have the meaning assigned thereto in Section 3.04.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
"Expenses" shall have the meaning assigned to such term in Section
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8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
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Section 8.02.
"Indenture" shall mean the Indenture, dated as of the date hereof
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between the Trust and the Indenture Trustee, as amended and supplemented from
time to time.
"Indenture Trustee" shall mean The Chase Manhattan Bank, a New York
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banking corporation, not in its individual capacity but solely as indenture
trustee under the Indenture, and any successor Indenture Trustee.
"Issuer" shall mean the Trust.
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"Owner Trust Estate" shall mean all right, title and interest of the
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Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement and the Administration Agreement.
"Owner Trustee" shall mean The Bank of New York, a New York banking
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corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" shall mean any paying agent or co-paying agent
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appointed pursuant to Section 3.09 and shall initially be the Indenture Trustee.
"Percentage Interest" shall mean, with respect to each Trust
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Certificate, the percentage interest in the Trust represented by such Trust
Certificates.
"Person" shall mean any individual, corporation, limited liability
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company, estate, partnership, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
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"Receivables Purchase Agreement" shall mean the Receivables Purchase
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Agreement, dated as of the date hereof, between World Omni, as seller, and the
Depositor, as purchaser, as amended from time to time.
"Record Date" shall mean, with respect to any Payment Date, the close
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of business on the day immediately preceding such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and Servicing
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Agreement, dated as of the date hereof, among the Trust, as issuer, the
Depositor, as seller and World Omni, as servicer, as the same may be amended or
supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the State of
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Delaware.
"Servicer" shall mean World Omni, or any successor servicer under the
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Sale and Servicing Agreement.
"Treasury Regulations" shall mean regulations, including proposed or
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temporary Regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
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"Trust Certificate" shall mean a certificate evidencing the beneficial
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interest of a Certificateholder in the Trust, substantially in the form attached
hereto as Exhibit A.
"World Omni" shall mean World Omni Financial Corp., a Florida
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corporation, and any successor in interest.
SECTION 1.02. Other Definitional Provisions. (a) Capitalized terms
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used and not otherwise defined herein have the meanings assigned to them in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
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(d) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
Organization
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SECTION 2.01. Name. The Trust created hereby shall be known as
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"World Omni Auto Receivables Trust 2001-A" in which name the Owner Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02. Office. The Delaware office of the Trust shall be in
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care of the Delaware Trustee at Xxxxx Xxxx Center, Route 273, Newark, Delaware
19711 or at such other address in the State of Delaware as the Delaware Trustee
may designate by written notice to the Certificateholders and the Depositor. The
New York office of the Trust shall be in care of the Owner Trustee at the
Corporate Trust Office or at such other address in the State of New York as the
Owner Trustee may designate by written notice to the Certificateholders and the
Depositor.
SECTION 2.03. Purposes and Powers. (a) The purpose of the Trust is
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to engage in the following activities:
(i) to issue and cause to be authenticated the Notes pursuant
to the Indenture and the Trust Certificates pursuant to this Agreement and
to transfer the Notes and the Certificates to the Depositor;
(ii) with the proceeds of the sale of the Notes, to purchase
the Receivables and to pay the organizational, start-up and transactional
expenses of the Trust;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale and
Servicing Agreement any portion
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of the Owner Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith;
(vi) to give the Issuer Order (as defined in the Indenture) to
the Indenture Trustee to authenticate and deliver the Notes; and
(vii) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.04. Appointment of Owner Trustee and Delaware Trustee. The
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Depositor hereby appoints the Owner Trustee as trustee of the Trust effective as
of the date hereof, to have all the rights, powers and duties set forth herein
and appoints the Delaware Trustee as a trustee of the Trust effective as of the
date hereof for the sole purpose of satisfying Section 3807(a) of the Delaware
Business Trust Statute.
SECTION 2.05. Initial Capital Contribution of Owner Trust Estate.
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The Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
The Depositor shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. Declaration of Trust. The Owner Trustee hereby
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declares that it will hold the Owner Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. The Trust is not
intended to be a business trust within the meaning of Section 101(9)(A)(v) of
the Bankruptcy Code. It is also the intention of the parties hereto that, solely
for Federal, state and local income and franchise tax purposes, on and after the
Closing Date, (a) so long as the Trust has only one Certificateholder, the Trust
shall be disregarded as a separate entity and (b) at such time as the Trust has
more than one Certificateholder, the Trust will be treated as a partnership,
with the assets of the partnership being the Receivables and other assets held
by the Trust, the partners of the partnership being the Certificateholders, and
the Notes being non-recourse debt of the partnership. The Depositor (and any
future
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Certificateholder by the purchase of the Trust Certificate will be deemed to
have agreed) and the Owner Trustee agree to take no action inconsistent with
such tax treatment. The Trust shall not elect to be treated as an association
under Treasury Regulations Section 301.7701-3(a). The parties agree that, unless
otherwise required by appropriate tax authorities, the sole Certificateholder or
the Trust, as applicable, will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the foregoing
characterization of the Trust for such tax purposes. Effective as of the date
hereof, the Owner Trustee or the Delaware Trustee, as applicable, shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust. Any action taken on
behalf of the Trust prior to the date hereof with respect to the filing of
financing statements or the Certificate of Trust is hereby ratified.
SECTION 2.07. Liability of the Depositor and the Certificateholders.
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(a) The Depositor shall be liable directly to and will indemnify any injured
party for all losses, claims, damages, liabilities and expenses of the Trust
(including Expenses, to the extent not paid out of the Owner Trust Estate) to
the extent that the Depositor would be liable if the Trust were a partnership
under the Delaware Revised Uniform Limited Partnership Act in which the
Depositor were a general partner; provided, however, that the Depositor shall
not be liable for any losses incurred by a Certificateholder in the capacity of
an investor in the Trust Certificates, or by a Noteholder in the capacity of an
investor in the Notes. In addition, any third party creditors of the Trust
(other than in connection with the obligations described in the preceding
sentence for which the Depositor shall not be liable) shall be deemed third
party beneficiaries of this Section 2.07.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or obligation
of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all the Owner
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Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.09. Situs of Trust. The Trust will be located in the State
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of Delaware and administered in the State of New York. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the
State of Delaware. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware, and payments will be
made by the Trust only from Delaware. The principal office of the Trust shall be
in care of the Delaware Trustee in the State of Delaware. The Trust shall also
have an office in care of the Owner Trustee in the State of New York.
SECTION 2.10. Representations and Warranties of the Depositor. The
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Depositor hereby represents and warrants to the Owner Trustee and the Delaware
Trustee that:
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(a) The Depositor is duly organized and validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
material licenses and approvals, in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse
effect on the Depositor's earnings, business affairs or business prospects.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full
power and authority to sell and assign the property to be sold and assigned
to and deposited with the Trust and the Depositor has duly authorized such
sale and assignment and deposit to the Trust by all necessary action; and
the execution, delivery and performance of this Agreement have been duly
authorized by the Depositor by all necessary action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited
liability company agreement or bylaws of the Depositor; (ii) breach,
conflict with or violate any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement or other instrument to which the Depositor is a party
or by which it is bound; (iii) result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Basic
Documents); or (iv) violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Depositor
or its properties, except, in the case of clauses (ii), (iii) and (iv), for
such breaches, defaults, conflicts, liens or violations that would not have
a material adverse effect on the Depositor's earnings, business affairs or
business prospects.
(e) To the Depositor's best knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A) asserting the
invalidity of this Agreement or any of the other Basic Documents, (B)
seeking to prevent the issuance of the Trust Certificates or the
consummation of any of the transactions contemplated by this Agreement or
any of the other Basic Documents, (C) seeking any determination or ruling
that could reasonably be expected to materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Basic Documents or
(D) involving the Depositor and which might materially and
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adversely affect the federal income tax or other federal, state or local
tax attributes of the Trust Certificates.
ARTICLE III
Trust Certificates and Transfer of Interests
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SECTION 3.01. Initial Ownership. Upon the formation of the Trust by
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the contribution by the Depositor pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Depositor shall be the sole beneficiary
of the Trust.
SECTION 3.02. The Trust Certificates. The Trust Certificates shall
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represent a 100% Percentage Interest in the Trust. On the date hereof the
Depositor or its designee shall be the sole Holder of each of the Trust
Certificates and each of the Trust Certificates shall be registered, upon
initial issuance, in the name of the Depositor or its designee. The Trust
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee. Trust Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of authentication
and delivery of such Trust Certificates.
A transferee of a Trust Certificate shall become a Certificateholder
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Trust
Certificate duly registered in such transferee's name pursuant to Section 3.04.
SECTION 3.03. Authentication of Trust Certificates. On the Closing
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Date, the Owner Trustee shall cause the Trust Certificates to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor signed by the Depositor's president, any vice president,
secretary, treasurer or any assistant treasurer, without further company action
by the Depositor. No Trust Certificate shall entitle its Holder to any benefit
under this Agreement or be valid for any purpose unless there shall appear on
such Trust Certificate a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Owner Trustee, by manual signature; such
authentication shall constitute conclusive evidence that such Trust Certificate
shall have been duly authenticated and delivered hereunder. All Trust
Certificates shall be dated the date of their authentication.
SECTION 3.04. Registration of Transfer and Exchange of Trust
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Certificates. The Certificate Registrar shall keep or cause to be kept, at the
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office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. The Bank of
New York shall be the initial Certificate Registrar.
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The Trust Certificates have not been and will not be registered under
the Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under said Act
and such state securities laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and state securities laws, in
order to assure compliance with the Securities Act and such laws, the Holder
desiring to effect such transfer and such Holder's prospective transferee shall
each certify to the Owner Trustee and the Depositor in writing the facts
surrounding the transfer in substantially the forms set forth in Exhibit C (the
"Transferor Certificate") and Exhibit D (the "Investment Letter"). Except in
the case of a transfer as to which the proposed transferee has provided an
Investment Letter with respect to a Rule 144A transaction, there shall also be
delivered to the Owner Trustee an opinion of counsel that such transfer may be
made pursuant to an exemption from the Securities Act and state securities laws,
which opinion of counsel shall not be an expense of the Trust, the Owner Trustee
or the Indenture Trustee (unless it is the transferee from whom such opinion is
to be obtained) or of the Depositor or World Omni; provided that such opinion of
counsel in respect of the applicable state securities laws may be a memorandum
of law rather than an opinion if such counsel is not licensed in the applicable
jurisdiction. The Depositor shall provide to any Holder of a Certificate and
any prospective transferee designated by any such Holder information regarding
the Certificates and the Receivables and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A.
Each Holder of a Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Issuer, the Owner Trustee, the Indenture Trustee,
the Depositor and World Omni (in any capacity) against any liability that may
result if the transfer is not so exempt or is not made in accordance with
federal and state securities laws.
No transfer of a Trust Certificate shall be made to any Person unless
the Owner Trustee has received (A) a certificate in the form of paragraph 3 to
the Investment Letter attached hereto as Exhibit D from such Person to the
effect that such Person is not (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity (each,
a "Benefit Plan") or (B) an opinion of counsel satisfactory to the Owner Trustee
and the Depositor to the effect that the purchase and holding of such Trust
Certificate will not constitute or result in the assets of the Issuer being
deemed to be "plan assets" subject to the prohibited transactions provisions of
ERISA or Section 4975 of the Code and will not subject the Owner Trustee, the
Delaware Trustee, the Indenture Trustee or the Depositor to any obligation in
addition to those undertaken in the Basic Documents; provided, however, that the
-------- -------
Owner Trustee will not require such certificate or opinion in the event that, as
a result of a change of law or otherwise, counsel satisfactory to the Owner
Trustee has rendered an opinion to the effect that the purchase and holding of a
Trust Certificate by a Benefit Plan or a Person that is purchasing or holding
such a Trust Certificate with the assets of a Benefit Plan will not constitute
or result in a prohibited transaction under ERISA or Section 4975 of the Code.
The preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Issuer, the Owner Trustee, the Indenture Trustee,
World Omni (in any capacity)
9
or the Depositor. Any attempted or purported transfer in violation of these
transfer restrictions will be null and void and will vest no rights in any
purported transferee.
The Owner Trustee shall cause each Certificate to contain a legend
stating that transfer of the Certificates is subject to certain restrictions and
referring prospective purchasers of the Certificates to the terms of this
Agreement with respect to such restrictions.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent. At the option of a Holder, Trust
Certificates may be exchanged for other Trust Certificates of authorized
denominations of a like aggregate amount upon surrender of the Trust
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.08.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Trust Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of 15 days preceding
the due date for any payment with respect to the Trust Certificates.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
-------------------------------------------------------
If (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Trust Certificate has been acquired by a
bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute and
the Owner Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Certificate, a new Trust
Certificate of like tenor and denomination. In connection with the issuance of
any new Trust Certificate under this Section, the Owner Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Certificate issued pursuant to this Section shall constitute
conclusive evidence of ownership in
10
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation of a
---------------------
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose name any
Trust Certificate is registered in the Certificate Register as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to Section
5.02 and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any Paying Agent shall be bound by any notice to the
contrary.
SECTION 3.07. Access to List of Certificateholders' Names and
-----------------------------------------------
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
---------
Servicer and the Depositor, within 15 days after receipt by the Owner Trustee of
a written request therefor from the Servicer or the Depositor, a list, in such
form as the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Trust Certificates
evidencing not less than a 25% Percentage Interest of the Certificates apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Trust Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Trust Certificate, shall be deemed to have agreed not to
hold any of the Depositor, the Certificate Registrar or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 3.08. Maintenance of Office or Agency. The Owner Trustee
-------------------------------
shall maintain in the State of New York, an office or offices or agency or
agencies where Trust Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Trust Certificates and the Basic Documents may be served. The
Owner Trustee initially designates its Corporate Trust Office, as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.09. Appointment of Paying Agent. The Paying Agent shall
---------------------------
make distributions to Certificateholders pursuant to Section 5.02 and shall
report the amounts of such distributions to the Owner Trustee. Any Paying Agent
shall have the revocable power to withdraw funds from the Collection Account for
the purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Indenture Trustee
will be the initial Paying Agent. In the event that the Indenture Trustee shall
no longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any
11
additional Paying Agent appointed by the Owner Trustee to execute and deliver to
the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that, as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. Any reference in
this Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE IV
Actions by Owner Trustee
------------------------
SECTION 4.01. Prior Notice to Certificateholders with Respect to
--------------------------------------------------
Certain Matters. With respect to the following matters, the Owner Trustee shall
---------------
not take action unless, at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and
such amendment would materially adversely affect the interests of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
12
SECTION 4.02. Action by Certificateholders with Respect to Certain
----------------------------------------------------
Matters. The Owner Trustee shall not have the power, except upon the written
-------
direction of the Certificateholders, to (a) remove the Administrator under the
Administration Agreement pursuant to Section 1.08 thereof, (b) appoint a
successor Administrator under the Administration Agreement pursuant to Section
1.08 thereof, (c) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 8.01 thereof or (d) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture.
The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Certificateholders.
SECTION 4.03. Action by Certificateholders with Respect to
--------------------------------------------
Bankruptcy. To the fullest extent permitted by applicable law, the Owner
----------
Trustee shall not have any power to, and shall not, (i) institute proceedings to
have the Trust declared or adjudicated a bankrupt or insolvent, (ii) consent to
the institution of bankruptcy or insolvency proceedings against the Trust, (iii)
file a petition or consent to a petition seeking reorganization or relief on
behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (iv) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the assets of the Trust, (v) make any assignment for the benefit of
the Trust's creditors, (vi) cause the Trust to admit in writing its inability to
pay its debts generally as they become due, or (vii) take any action, or cause
the Trust to take any action, in furtherance of any of the foregoing (any of the
above, a "Bankruptcy Action"). So long as the Indenture remains in effect, no
-----------------
Certificateholder shall have the power to take, and shall not take, any
Bankruptcy Action with respect to the Trust or direct the Owner Trustee to take
any Bankruptcy Action with respect to the Trust.
SECTION 4.04. Restrictions on Certificateholders' Power. The
-----------------------------------------
Certificateholders shall not direct the Owner Trustee to take or to refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.03 or contrary to applicable law,
nor shall the Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.05. Majority Control. Except as expressly provided herein,
----------------
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Holders of Trust Certificates evidencing in the aggregate not
less than a 50% Percentage Interest. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of Trust Certificates evidencing in the
aggregate not less than a 50% Percentage Interest at the time of the delivery of
such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
------------------------------------------
[SECTION 5.01. [RESERVED]]
13
SECTION 5.02. Application of Trust Funds. (a) On each Payment Date,
--------------------------
subject to Section 5.02(b) hereof, the Owner Trustee will distribute to
Certificateholders, on a pro rata basis, amounts pursuant to Section
5.06(ii)(F), (iii)(E) or (iv)(E) of the Sale and Servicing Agreement with
respect to such Payment Date.
(b) The Holders of 100% Percentage Interest of the Certificates will
have the right, but not the obligation, in their sole discretion, to instruct
the Indenture Trustee in writing to retain in the Collection Account all or a
portion of distributions otherwise payable to them pursuant to Section
5.06(ii)(F), (iii)(E) or (iv)(E) of the Sale and Servicing Agreement. If the
Certificateholders make this election, these amounts will be treated as
collections during the then-current Collection Period and the Certificateholders
will have no claim to such amounts (unless distributed on a subsequent Payment
Date pursuant to Section 5.06(ii)(F) of the Sale and Servicing Agreement).
(c) On each Payment Date, the Owner Trustee shall send to each
Certificateholder copies of the statement or statements provided to the Owner
Trustee by the Servicer pursuant to Section 5.08 of the Sale and Servicing
Agreement with respect to such Payment Date.
SECTION 5.03. Method of Payment. Subject to Section 9.01(c),
-----------------
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions no later than the Record Date prior to such
Payment Date, or (y) if such Holder does not qualify under clause (x), by check
mailed to such Certificateholder at the address of such holder appearing in the
Certificate Register.
SECTION 5.04. No Segregation of Monies; No Interest. Subject to
-------------------------------------
Section 5.02, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05. Accounting and Reports to the Certificateholders, the
-----------------------------------------------------
Internal Revenue Service and Others. The Owner Trustee shall deliver to each
-----------------------------------
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, or as may be requested by such Certificateholder, such information,
reports or statements as may be necessary to enable each Certificateholder to
prepare its federal and state income tax returns. Consistent with the Trust's
characterization for tax purposes as a disregarded entity so long as the
Depositor or any other Person is the sole Certificateholder, no federal income
tax return shall be filed on behalf of the Trust unless either (i) the Owner
Trustee shall be provided with an Opinion of Counsel that, based on a change in
applicable law occurring after the date hereof, or as a result of a transfer
permitted by Section 3.04, the Code requires such a filing or (ii) the Internal
------------
Revenue Service shall determine that the Trust is required to file such a
return. In the event that there shall be two or more beneficial owners of the
Trust, the Owner Trustee shall inform the Indenture Trustee in writing of such
event, (x) the Owner Trustee shall prepare or shall cause to be prepared federal
14
and, if applicable, state or local partnership tax returns, with all such
necessary information provided to it, required to be filed by the Trust and
shall remit such returns to the Depositor (or if the Depositor no longer owns
any Certificates, the Certificateholder designated for such purpose by the
Depositor to the Owner Trustee in writing) at least (5) days before such returns
are due to be filed, and (y) capital accounts shall be maintained for each
Certificateholder in accordance with the Treasury Regulations under Section
704(b) of the Code reflecting each such Certificateholder's share of the income,
gains, deductions, and losses of the Trust and/or guaranteed payments made by
the Trust and contributions to, and distributions from, the Trust. The Depositor
(or such designee Certificateholder, as applicable) shall promptly sign such
returns and deliver such returns after signature to the Owner Trustee and such
returns shall be filed by the Owner Trustee with the appropriate tax
authorities. In the event that a "tax matters partner" (within the meaning of
Code Section 6231(a)(7)) is required to be appointed with respect to the Trust,
the Depositor or its designee is hereby designated as tax matters partner or, if
the Depositor is not a Certificateholder, the Certificateholder selected by a
majority of the Certificateholders (by Percentage Interest) shall be designated
as tax matters partner. In no event shall the Certificateholder or the Depositor
(or such designee Certificateholder, as applicable) be liable for any
liabilities, costs or expenses of the Trust or the Noteholders arising out of
the application of any tax law, including federal, state, foreign or local
income or excise taxes or any other tax imposed on or measured by income (or any
interest, penalty or addition with respect thereto or arising from a failure to
comply therewith) except for any such liability, cost or expense attributable to
any negligent act or omission by the Owner Trustee or the Depositor (or such
designee Certificateholder, as applicable), as the case may be, in breach of its
obligations under this Agreement.
SECTION 5.06. Signature on Returns.
--------------------
The Depositor or the Certificateholder shall sign the tax returns of
the Trust on behalf of the Trust, unless applicable law requires the Owner
Trustee to sign such documents, in which case such documents shall be signed by
the Owner Trustee, as required by applicable law.
ARTICLE VI
Authority and Duties of Owner Trustee
-------------------------------------
SECTION 6.01. General Authority. The Owner Trustee is authorized and
-----------------
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and, in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
15
SECTION 6.02. General Duties. It shall be the duty of the Owner
--------------
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee or the Trust hereunder or under any Basic Document, and the Owner
Trustee shall not be held liable for the default or failure of the Administrator
to carry out its obligations under the Administration Agreement.
SECTION 6.03. Action upon Instruction. (a) Subject to Article IV
-----------------------
and in accordance with the terms of the Basic Documents, the Certificateholders
may by written instruction direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10 days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement or the Basic Documents, as it shall deem
necessary, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
16
refrain from taking such action not inconsistent with this Agreement or the
Basic Documents, as it shall deem necessary, and shall have no liability to any
Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to
------------
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03; and no implied duties or obligations
shall be read into this Agreement or any Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will promptly take all action as may be
necessary to discharge any liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.05. No Action Except Under Specified Documents or
---------------------------------------------
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
------------
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Owner Trustee shall not take any
------------
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.06.
SECTION 6.07. Issuance of Notes. The Owner Trustee is hereby
-----------------
authorized and directed on behalf of the Trust to issue the Notes pursuant to
the Indenture.
ARTICLE VII
Concerning the Owner Trustee and the Delaware Trustee
-----------------------------------------------------
SECTION 7.01. Acceptance of Trusts and Duties. Each of the Owner
-------------------------------
Trustee and the Delaware Trustee accepts the trusts hereby created and each
agrees to perform its duties hereunder with respect to such trusts, but only
upon the terms of this Agreement. Each of the Owner Trustee and the Delaware
Trustee also agrees to disburse all monies actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. Neither the Owner Trustee nor the Delaware Trustee shall be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence
(including where such willful misconduct or negligence
17
results in non-compliance with any covenant or agreement of the Owner Trustee
herein), (ii) for liabilities arising from the failure by the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
6.04 hereof, (iii) for any investments made by the Owner Trustee in The Bank of
New York (in its individual capacity) in its commercial capacity, (iv) in the
case of the inaccuracy of any representation or warranty contained in Section
7.03 or Section 7.04 expressly made by the Owner Trustee or the Delaware Trustee
or (v) for federal or state taxes, fees or other charges, based on or measured
by any fees, commissions or compensation received by the Owner Trustee or the
Delaware Trustee in connection with any of the transactions contemplated by this
Agreement or any of the Basic Documents. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) Neither the Owner Trustee nor the Delaware Trustee shall be
liable for any error of judgment made by a Trust Officer of the Owner
Trustee or the Delaware Trustee;
(b) Neither the Owner Trustee nor the Delaware Trustee shall be
liable with respect to any action taken or omitted to be taken by them in
accordance with the instructions of the Administrator or any
Certificateholder (provided that the instructions have been given by the
requisite Percentage Interest of the Certificates pursuant to this
Agreement or one of the Basic Documents, as applicable);
(c) No provision of this Agreement or any Basic Document shall
require the Owner Trustee or the Delaware Trustee to expend or risk funds
or otherwise incur any financial liability in the performance of any of
their rights or powers hereunder or under any Basic Document if the Owner
Trustee or the Delaware Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to them;
(d) Under no circumstances shall the Owner Trustee or the
Delaware Trustee be liable for indebtedness evidenced by or arising under
any of the Basic Documents, including the principal of and interest on the
Notes;
(e) Neither the Owner Trustee nor the Delaware Trustee shall be
responsible for or in respect of the validity or sufficiency of this
Agreement or for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the Trust
Certificates, and neither the Owner Trustee nor the Delaware Trustee shall
in any event assume or incur any liability, duty or obligation to any
Noteholder or to any Certificateholder, other than as expressly provided
for herein or expressly agreed to in the Basic Documents;
(f) Neither the Owner Trustee nor the Delaware Trustee shall be
liable for the default or misconduct of the Administrator, the Depositor,
the Indenture Trustee or the Servicer under any of the Basic Documents or
otherwise, and neither the Owner Trustee nor the Delaware Trustee shall
have any obligation or liability to perform the obligations of the Trust
under this Agreement or the Basic Documents that are required to
18
be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer or the Depositor
under the Sale and Servicing Agreement;
(g) Neither the Owner Trustee nor the Delaware Trustee shall be
under any obligation to exercise any of the rights or powers vested in them
by this Agreement, or to institute, conduct or defend any litigation under
this Agreement or otherwise or in relation to this Agreement or any Basic
Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to them
reasonable security or indemnity satisfactory to the Owner Trustee and the
Delaware Trustee against the costs, expenses and liabilities that may be
incurred by them therein or thereby. The right of the Owner Trustee and
the Delaware Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and
neither the Owner Trustee nor the Delaware Trustee shall be answerable for
other than their negligence or willful misconduct in the performance of any
such act;
(h) Neither the Owner Trustee nor the Delaware Trustee shall be
liable for any losses due to forces beyond the control of the Owner Trustee
or the Delaware Trustee, including without limitation strikes, work
stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God and interruptions, loss or malfunctions
of utilities or communications services; and
(i) In no event shall the Owner Trustee or the Delaware Trustee
be personally liable (i) for special, consequential or punitive damages,
(ii) for the acts or omissions of its nominees, correspondents, clearing
agencies or securities depositories and (iii) for the acts or omissions of
brokers or dealers. The Owner Trustee shall have no responsibility for the
accuracy of any information provided to the Holders or any other Person
that has been obtained from, or provided to the Owner Trustee.
SECTION 7.02. Furnishing of Documents. The Owner Trustee shall
-----------------------
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents. The Owner Trustee shall have no
responsibility for the accuracy of any information provided to the
Certificateholders or any other Person that has been obtained from, or provided
to the Owner Trustee.
SECTION 7.03. Representations and Warranties of the Owner Trustee.
---------------------------------------------------
The Owner Trustee hereby represents and warrants to the Depositor, for the
benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of New York. It has
all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
19
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
(i) contravene any federal or New York law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, (ii) constitute any default under its charter
documents or bylaws, (iii) constitute any default under any indenture,
mortgage, contract, agreement or instrument to which it is a party or by
which any of its properties may be bound or (iv) result in the creation or
imposition of any lien, charge or encumbrance on the Owner Trust Estate
resulting from actions by or claims against the Owner Trustee which are
unrelated to this Agreement or the other Basic Documents.
(d) It has the power and authority to execute and deliver this
Agreement and, on behalf of the Trust, the other Basic Documents to which
the Trust is a party and to carry out their respective terms; and the
execution, delivery, and performance of this Agreement by it and the other
Basic Documents to which the Trust is a party have been duly authorized by
all necessary corporate action.
(e) This Agreement constitutes the legal, valid, and binding
obligation of the Owner Trustee, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
SECTION 7.04. Representations and Warranties of the Delaware Trustee.
------------------------------------------------------
The Delaware Trustee hereby represents and warrants to the Depositor, for the
benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
(i) contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Delaware Trustee or any
judgment or order binding on it, (ii) constitute any default under
20
its charter documents or bylaws, (iii) constitute any default under any
indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound or (iv) result in the
creation or imposition of any lien, charge or encumbrance on the Owner
Trust Estate resulting from actions by or claims against the Delaware
Trustee which are unrelated to this Agreement or the other Basic Documents.
(d) It has the power and authority to execute and deliver this
Agreement; and the execution, delivery, and performance of this Agreement
by it has been duly authorized by all necessary corporate action.
(e) This Agreement constitutes the legal, valid, and binding
obligation of it, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
SECTION 7.05. Reliance; Advice of Counsel. (a) The Owner Trustee
---------------------------
and the Delaware Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper (whether in its original or
facsimile form) believed by it to be genuine and believed by it to be signed by
the proper party or parties. The Owner Trustee or the Delaware Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee and the Delaware Trustee may
for all purposes hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee or the Delaware Trustee, as applicable, for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee and the Delaware Trustee (i) may act directly or
through their agents or attorneys pursuant to agreements entered into with any
of them, and the Owner Trustee and the Delaware Trustee shall not be liable for
the conduct or misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee or the Delaware Trustee,
as applicable, with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by them. The Owner Trustee and the Delaware Trustee shall not be
liable for anything done, suffered or omitted in good faith by them in
accordance with the written opinion or advice of any such counsel, accountants
or other such Persons and not contrary to this Agreement or any Basic Document.
SECTION 7.06. Not Acting in Individual Capacity. Except as provided
---------------------------------
in this Article VII, in accepting the trusts hereby created, The Bank of New
York and The Bank of New York (Delaware) act solely as Owner Trustee and
Delaware Trustee, respectively, hereunder and not in their individual
capacities, and all Persons having any claim against the Owner Trustee or the
Delaware Trustee by reason of the transactions contemplated by this
21
Agreement or any Basic Document shall look only to the Owner Trust Estate for
payment or satisfaction thereof.
SECTION 7.07. Owner Trustee and Delaware Trustee Not Liable for Trust
-------------------------------------------------------
Certificates or Receivables. The Owner Trustee or the Delaware Trustee, as
---------------------------
applicable, make no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or of the Trust Certificates (other than the
signature and countersignature of the Owner Trustee on the Trust Certificates)
or the Notes, or of any Receivable or related documents. Neither the Owner
Trustee nor the Delaware Trustee shall at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including, without limitation: the existence, condition and ownership of any
Financed Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; the completeness of any Receivable; the performance or
enforcement of any Receivable; the compliance by the Depositor or the Servicer
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation, or any
action of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 7.08. Owner Trustee and Delaware Trustee May Own Trust
------------------------------------------------
Certificates and Notes. The Owner Trustee or the Delaware Trustee in their
----------------------
individual or any other capacity may become the owner or pledgee of Trust
Certificates or Notes and may deal with the Depositor, the Administrator, the
Indenture Trustee and the Servicer in banking transactions with the same rights
as they would have if they were not Owner Trustee or Delaware Trustee,
respectively.
ARTICLE VIII
Compensation of Owner Trustee and Delaware Trustee
--------------------------------------------------
SECTION 8.01. Owner Trustee's and Delaware Trustee's Fees and
-----------------------------------------------
Expenses. The Owner Trustee and Delaware Trustee shall receive as compensation
--------
for their services hereunder during the term of this Agreement such fees as have
been separately agreed upon in writing before the date hereof among the
Administrator, the Owner Trustee and the Delaware Trustee, and the Owner Trustee
shall be entitled to be reimbursed by the Administrator pursuant to the
Administration Agreement for its other reasonable and documented expenses
hereunder, including the reasonable and documented compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
SECTION 8.02. Indemnification. Pursuant to the Administration
---------------
Agreement, the Administrator shall be liable as primary obligor for, and shall
indemnify each of the Owner Trustee and the Delaware Trustee and their
successors, assigns, agents and servants
22
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable and documented costs, expenses and disbursements
(including reasonable and documented legal fees and expenses) of any kind and
nature whatsoever (collectively, "Expenses") which may at any time be imposed
on, incurred by or asserted against any Indemnified Party in any way relating to
or arising out of this Agreement, the Basic Documents, the Owner Trust Estate,
the administration of the Owner Trust Estate or the action or inaction of any
Indemnified Party hereunder, except only that the Administrator shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in clauses (i),
(ii), (iii), (iv) or (v) of the third sentence of Section 7.01. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee, the Delaware Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity is sought pursuant
to this Section, the Owner Trustee's or the Delaware Trustee's choice of legal
counsel shall be subject to the approval of the Administrator, which approval
shall not be unreasonably withheld.
SECTION 8.03. Payments to the Owner Trustee. Any amounts paid to
-----------------------------
the Owner Trustee or the Delaware Trustee pursuant to this Article VIII shall be
deemed not to be a part of the Owner Trust Estate simultaneously with such
payment.
ARTICLE IX
Termination of Trust Agreement
------------------------------
SECTION 9.01. Termination of Trust Agreement. (a) This Agreement
------------------------------
(other than Article VIII) and the Trust shall terminate and be of no further
force or effect upon the final distribution by the Owner Trustee of all monies
or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture, the Sale and Servicing Agreement and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the Trust
or (y) entitle such Certificateholder's legal representatives or heirs to claim
an accounting or to take any action or proceeding in any court for a partition
or winding up of all or any part of the Trust or Owner Trust Estate or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Payment
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of actual notice of such termination from the Servicer
given pursuant to Section 9.01(b) of the Sale and Servicing Agreement, stating
(i) the Payment Date upon or with respect to which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, and, as a result, payments
will be made only upon presentation and surrender of the Trust Certificates by
23
Certificateholders at the office of the Paying Agent therein specified. The
Owner Trustee shall give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust Certificates,
the Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Payment Date pursuant to Section 5.02.
In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Owner Trust Estate after exhaustion of such remedies shall be distributed by the
Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee and/or the Delaware Trustee shall cause the Certificate of Trust to be
cancelled by filing a certificate of cancellation (as provided to it) with the
Secretary of State of the State of Delaware in accordance with the provisions of
Section 3810 of the Business Trust Statute.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
------------------------------------------------------
SECTION 10.01. Eligibility Requirements for Owner Trustee and
----------------------------------------------
Delaware Trustee. The Delaware Trustee shall at all times be a corporation
----------------
satisfying the provisions of Section 3807(a) of the Business Trust Statute. The
Owner Trustee shall at all times be authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authorities and having (or
having a parent which has) a long-term rating of at least "A" (or the
equivalent) by each Rating Agency. If such corporation shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee or the Delaware
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Owner Trustee or the Delaware Trustee, as applicable, shall resign
promptly in the manner and with the effect specified in Section 10.02.
SECTION 10.02. Resignation or Removal of Owner Trustee and Delaware
----------------------------------------------------
Trustee. (a) Subject to paragraph (c) of this Section, the Owner Trustee or
-------
the Delaware Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee or Delaware Trustee, as applicable, by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner
24
Trustee or Delaware Trustee, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee
or Delaware Trustee and one copy to the successor Owner Trustee or Delaware
Trustee. If no successor Owner Trustee or Delaware Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Owner Trustee or Delaware Trustee, as
applicable, may petition (at the expense of the Depositor) any court of
competent jurisdiction for the appointment of a successor Owner Trustee or
Delaware Trustee, as applicable.
(b) Subject to paragraph (c) of this Section, if at any time the
Owner Trustee or Delaware Trustee shall cease to be eligible in accordance with
the provisions of Section 10.01 and shall fail to resign after written request
therefor by the Administrator, or if at any time the Owner Trustee or Delaware
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or the Delaware Trustee or of
either of their property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or the Delaware Trustee or of either of
their property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator may remove the Owner Trustee or Delaware
Trustee, as applicable. If the Administrator shall remove the Owner Trustee or
Delaware Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee or Delaware
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the outgoing Owner Trustee or Delaware Trustee so removed and
one copy to the successor Owner Trustee or Delaware Trustee, and shall pay all
fees owed to the outgoing Owner Trustee or Delaware Trustee.
(c) Any resignation or removal of the Owner Trustee or Delaware
Trustee and appointment of a successor Owner Trustee or Delaware Trustee
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor Owner Trustee or Delaware
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee or Delaware Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee or Delaware Trustee
to each Rating Agency.
SECTION 10.03. Successor Owner Trustee or Delaware Trustee. Any
-------------------------------------------
successor Owner Trustee or Delaware Trustee appointed pursuant to Section 10.02
shall execute, acknowledge and deliver to the Administrator and to its
predecessor Owner Trustee or Delaware Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee or Delaware Trustee shall become effective, and
such successor Owner Trustee or Delaware Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Owner Trustee or Delaware Trustee. The predecessor Owner
Trustee or Delaware Trustee shall upon payment of its fees and expenses deliver
to the successor Owner Trustee or Delaware Trustee all documents and statements
and monies held by it under this Agreement, and the Administrator and the
predecessor Owner Trustee or Delaware Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee or Delaware
Trustee all such rights, powers, duties and obligations.
25
No successor Owner Trustee or Delaware Trustee shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Owner Trustee or Delaware Trustee shall be eligible pursuant to
Section 10.01.
Upon written acceptance of appointment by a successor Owner Trustee or
Delaware Trustee pursuant to this Section, the Administrator shall mail notice
thereof to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator shall fail to mail such notice within
10 business days after acceptance of such appointment by the successor Owner
Trustee or Delaware Trustee, the successor Owner Trustee or Delaware Trustee
shall cause such notice to be mailed at the expense of the Administrator.
Any successor Delaware Trustee appointed hereunder shall promptly file
an amendment to the Certificate of Trust with the Secretary of State of the
State of Delaware as required by the Business Trust Statute.
SECTION 10.04. Merger or Consolidation of the Owner Trustee or
-----------------------------------------------
Delaware Trustee. Any corporation or other entity into which the Owner Trustee
----------------
or Delaware Trustee may be merged or converted or with which it may be
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Owner Trustee or Delaware Trustee shall
be a party, or any corporation or other entity succeeding to all or
substantially all of the corporate trust business of the Owner Trustee or
Delaware Trustee, shall be the successor to and assume all obligations of the
Owner Trustee or Delaware Trustee hereunder, as applicable, without the
execution or filing of any assignment or other instrument or any further act on
the part of such other entity or any of the parties hereto, anything herein to
the contrary notwithstanding; provided, that such corporation shall be eligible
pursuant to Section 10.01 and, provided, further, that the Owner Trustee or
Delaware Trustee shall mail notice of such merger or consolidation to each
Rating Agency.
SECTION 10.05. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
26
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that, under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the Owner Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement;
and
(c) The Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or co-
trustee without notice to any Rating Agency or any other Person.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Supplements and Amendments. This Agreement may be
--------------------------
amended by the Depositor, the Owner Trustee and the Delaware Trustee, without
the consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provision in this Agreement or for the
purpose of adding any provision to or changing in any manner or eliminating any
of the provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders. Such amendments require: (i)
satisfaction of
27
the Rating Agency Condition and (ii) an officer's certificate of the Depositor
stating that the amendment will not materially and adversely affect the interest
of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor,
the Owner Trustee and the Delaware Trustee, with the consent of holders of at
least 50% of the Outstanding Amount of the Controlling Securities (as defined in
the Indenture) and the consent of the Certificateholders evidencing not less
than a 50% Percentage Interest of the Trust Certificates, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Controlling Securities and the Percentage Interest in the Trust
Certificates required to consent to any such amendment, without the consent of
the holders of all the outstanding Notes and Certificates affected thereby.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
Rating Agency.
It shall not be necessary for the consent of Certificateholders,
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State of the State of Delaware.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee and the Delaware Trustee shall be
entitled to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this Agreement. The
Owner Trustee or Delaware Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's or Delaware Trustee's own
rights, duties or immunities under this Agreement or otherwise.
In connection with the execution of any amendment to this Agreement or
any amendment of any other agreement to which the Issuer is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Basic Documents and that all conditions precedent in the Basic Documents for the
execution and delivery thereof by the Issuer or the Owner Trustee, as the case
may be, have been satisfied.
28
SECTION 11.02. No Legal Title to Owner Trust Estate in
---------------------------------------
Certificateholders. The Certificateholders shall not have legal title to any
------------------
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except for Section
-------------------------------
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Delaware Trustee, the Depositor, the Certificateholders, the
Administrator, the Servicer and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement (other than
Section 2.07 hereof), whether express or implied, shall be construed to give to
any other Person any legal or equitable right, remedy or claim in the Owner
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.04. Notices. (a) Unless otherwise expressly specified or
-------
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or on the next Business Day
after delivery if delivered by a recognized overnight courier or upon receipt of
written confirmation of receipt of facsimile, if delivered by facsimile (except
that notice to the Owner Trustee shall be deemed given only upon actual receipt
by the Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust
Office, telephone: (000) 000-0000, facsimile: (000) 000-0000; if to the Delaware
Trustee, addressed to Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
telephone: (000) 000-0000; if to the Depositor, addressed to World Omni Auto
Receivables LLC, 000 X.X. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000,
telephone: (000) 000-0000, facsimile: (000) 000-0000, Attention: Xxxxxxx X.
Xxxxxxxxx; or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.05. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be executed
---------------------
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
29
SECTION 11.07. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor and its permitted assignees, the Owner Trustee and its successors, the
Delaware Trustee and its successors and each Certificateholder and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.08. Covenants of the Depositor. In the event that any
--------------------------
Certificateholder commences any litigation with claims in excess of $1,000,000
to which the Depositor is a party which in the judgment of counsel to the
Depositor who may be an employee of the Depositor, shall be reasonably likely to
result in a material judgment against the Depositor that the Depositor will not
be able to satisfy, during the period beginning nine months following the
commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to World Omni, or make any distribution to
World Omni, or repay the principal amount of any indebtedness of the Depositor
held by World Omni, unless (i) after giving effect to such dividend,
distribution or repayment, the Depositor's liquid assets shall not be less than
the amount of actual damages claimed in such litigation that are reasonably
likely to equal the amount of the judgment, if any, against the Depositor or
(ii) the Rating Agency Condition shall have been satisfied with respect to any
such dividend, distribution or repayment. The Depositor will not at any time
institute against the Trust any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, the Trust Agreement or any of the
Basic Documents.
SECTION 11.09. No Petition. The Owner Trustee and Delaware Trustee,
-----------
by entering into this Agreement, each Certificateholder, by accepting a Trust
Certificate, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificates, the Notes, this Agreement or
any of the Basic Documents.
SECTION 11.10. No Recourse. Each Certificateholder by accepting a
-----------
Trust Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Servicer, the Administrator, the Owner
Trustee, the Delaware Trustee, the Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated in this Agreement, the Trust Certificates
or the Basic Documents to which such parties are a party.
SECTION 11.11. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
30
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY
OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
* * * * * *
31
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK
not in its individual capacity but solely as Owner
Trustee,
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE)
not in its individual capacity but solely as
Delaware Trustee,
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: SVP
EXHIBIT A
FORM OF TRUST CERTIFICATE
-------------------------
THIS CERTIFICATE IS SUBORDINATED TO THE NOTES, AS AND TO THE EXTENT SET FORTH IN
THE SALE AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE SECURITIES OR BLUE SKY
LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS CERTIFICATE THE HOLDER HEREOF IS DEEMED TO REPRESENT TO THE
DEPOSITOR AND THE OWNER TRUSTEE (i) THAT IT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
1933 ACT (AN "ACCREDITED INVESTOR") AND THAT IT IS ACQUIRING THIS CERTIFICATE
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER
IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF,
(ii) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE 1933 ACT (A "QUALIFIED INSTITUTIONAL BUYER") AND IS ACQUIRING SUCH
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS) OR (iii) THAT IT IS AN INVESTOR THAT IS OTHERWISE PERMITTED TO ACQUIRE
THIS CERTIFICATE UNDER THE TRUST AGREEMENT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE BY ANY PERSON
UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE DEPOSITOR,
(ii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN ACCREDITED INVESTOR THAT
EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE TRUST
AGREEMENT, TO THE EFFECT THAT IT IS AN ACCREDITED INVESTOR ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO A PERSON WHO THE PROSPECTIVE TRANSFEROR REASONABLY BELIEVES
AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER, ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE
SALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iv) SUCH
SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT, IN WHICH CASE THE OWNER TRUSTEE
SHALL
A-1
REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND THE DEPOSITOR. EXCEPT IN THE CASE OF A TRANSFER
DESCRIBED IN CLAUSES (i) OR (iii) ABOVE, THE OWNER TRUSTEE SHALL REQUIRE A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR,
ANY AFFILIATE OF THE DEPOSITOR OR THE OWNER TRUSTEE) SATISFACTORY TO THE
DEPOSITOR AND THE OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT
VIOLATE THE 1933 ACT.
EACH SECURITYHOLDER, BY ITS ACCEPTANCE OF THIS SECURITY, COVENANTS AND AGREES
THAT SUCH SECURITYHOLDER, SHALL NOT, PRIOR TO THE DATE THAT IS ONE YEAR AND ONE
DAY AFTER THE TERMINATION OF THE TRUST AGREEMENT, ACQUIESCE, PETITION OR
OTHERWISE INVOKE OR CAUSE THE TRUST OR THE DEPOSITOR TO INVOKE THE PROCESS OF
ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING
A CASE AGAINST THE TRUST OR THE DEPOSITOR UNDER ANY FEDERAL OR STATE BANKRUPTCY,
INSOLVENCY, REORGANIZATION OR SIMILAR LAW, OR APPOINTING A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE
TRUST OR THE DEPOSITOR OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE
WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE TRUST OR THE DEPOSITOR.
THIS CERTIFICATE WILL NOT BE REGISTERED FOR TRANSFER UNLESS THE OWNER TRUSTEE
RECEIVES EITHER (1) A REPRESENTATION FROM THE TRANSFEREE OF SUCH CERTIFICATE TO
THE EFFECT THAT SUCH TRANSFEREE NEITHER IS NOR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN") AND IS NOT
USING THE ASSETS OF A PLAN SUBJECT TO ERISA, THE CODE OR SIMILAR LAW TO INVEST
IN THE CERTIFICATES OR (2) IF THE TRANSFEREE IS A PLAN, OR IS ACTING ON BEHALF
OF A PLAN TO INVEST IN THIS CERTIFICATE, OR IS USING THE ASSETS OF A PLAN TO
INVEST IN THIS CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE OWNER
TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT RESULT IN THE ASSETS OF THE
TRUST BEING DEEMED TO BE "PLAN ASSETS" OR SUBJECT THE DEPOSITOR, THE SERVICER,
THE OWNER TRUSTEE OR THE INDENTURE TRUSTEE TO ANY OBLIGATION IN ADDITION TO
THOSE UNDERTAKEN IN THE TRUST AGREEMENT, THE SALE AND SERVICING AGREEMENT AND
THE ADMINISTRATION AGREEMENT, INCLUDING ANY LIABILITIES ASSESSED FOR "PROHIBITED
TRANSACTIONS" UNDER ERISA, THE CODE OR SIMILAR LAW. ANY
A-2
PURPORTED TRANSFER OF A CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT THE
DELIVERY OF AN OPINION OF COUNSEL REFERRED TO IN CLAUSE (2) ABOVE SHALL BE VOID
AND OF NO EFFECT.
A-3
NO.:
WORLD OMNI AUTO RECEIVABLES TRUST 2001-A
TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which consists of retail installment sale contracts for new and used
automobiles and light-duty trucks (collectively, the "Receivables"), all monies
received on or after the Cutoff Date; any proceeds with respect to the
Receivables from claims on any physical damage, credit life or disability,
theft, mechanical breakdown or "guaranteed auto protection" insurance policies
relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have
secured a Receivable and shall have been acquired by or on behalf of the
Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the
Sale and Servicing Agreement, including the right of the Depositor to cause
World Omni to purchase Receivables under certain circumstances; the Trust
Accounts; and certain other rights under the Trust Agreement and Sale and
Servicing Agreement and all proceeds of the foregoing
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF WORLD
OMNI AUTO RECEIVABLES LLC, WORLD OMNI FINANCIAL CORP. OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner of ___%
nonassessable, fully-paid, fractional undivided interest in World Omni Auto
Receivables Trust 2001-A (the "Trust"), formed by World Omni Auto Receivables
LLC, a Delaware limited liability company (the "Depositor").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
THE BANK OF NEW YORK,
not in its individual capacity, but solely as
Owner Trustee
By:____________________________________________
Authorized Signatory
A-4
The Trust was created pursuant to a Trust Agreement dated February __,
2001, (as amended or supplemented from time to time, the "Trust Agreement"),
among the Depositor, The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee") and The Bank of New York, as owner trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Trust Agreement or the
Sale and Servicing Agreement, dated as of February __, 2001 (as amended and
supplemented from time to time, the "Sale and Servicing Agreement"), among the
Trust, the Depositor and World Omni Financial Corp., as servicer (the
"Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designated
as "Trust Certificates" (herein called the "Trust Certificates"). Also issued
under an Indenture, dated as of February __, 2001 (the "Indenture"), between the
Trust and The Chase Manhattan Bank, as indenture trustee, are the Notes
designated as "Asset-Backed Notes" (the "Notes"). This Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Trust Certificate by
virtue of its acceptance hereof assents and by which such Holder is bound. The
property of the Trust consists of retail installment sale contracts for new and
used automobiles and light-duty trucks (collectively, the "Receivables"), all
monies received on or after the Cutoff Date; any proceeds with respect to the
Receivables from claims on any physical damage, credit life or disability,
theft, mechanical breakdown or "guaranteed auto protection" insurance policies
relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have
secured a Receivable and shall have been acquired by or on behalf of the
Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the
Sale and Servicing Agreement, including the right of the Depositor to cause
World Omni to purchase Receivables under certain circumstances; the Trust
Accounts; and certain other rights under the Trust Agreement and Sale and
Servicing Agreement and all proceeds of the foregoing. The rights of the
Certificateholders are subordinated to the rights of the Noteholders, as and to
the extent set forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there will be distributed on the 20/th/ of
each month of each year or, if such day is not a Business Day, the immediately
following Business Day (each, a "Payment Date"), commencing on February 20,
2001, to the Person in whose name this Trust Certificate is registered at the
close of business on the last day of the month immediately preceding such
Payment Date (the "Record Date"), such Certificateholder's fractional undivided
interest in the amount to be distributed to Certificateholders on such Payment
Date. No distributions will be made on any Certificate on any Payment Date until
the full amount of interest and principal payable on the Notes on such Payment
Date has been paid in full and the Reserve Account has been replenished to its
required amount, if necessary.
The Holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
It is the intention of the Depositor, the Servicer and the
Certificateholders that, solely for Federal, state and local income and
franchise tax purposes, (a) so long as the Trust has only one Certificateholder,
the Trust will be disregarded as a separate entity and (b) at such time
A-5
as the Trust has more than one Certificateholder, the Trust will be treated as a
partnership. Neither the Servicer nor the Depositor or any Certificateholder
will take any action to the contrary.
Each Certificateholder, by its acceptance of a Trust Certificate,
covenants and agrees that such Certificateholder will not at any time institute
against the Depositor, or join in any institution against the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Trust
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Trust Certificate will be made as provided in
the Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Trust
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Trust Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Trust Certificate at the office or agency maintained for that purpose by the
Owner Trustee in the City of New York, New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the Holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Trust Certificate to be duly
executed.
WORLD OMNI AUTO RECEIVABLES TRUST 0000-X
XXX XXXX XX XXX XXXX,
not in its individual capacity but solely as Owner
Trustee,
Dated: _________________ By:_______________________________________________
Authorized Signatory
A-7
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee, the Delaware
Trustee or any affiliates of any of them and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Sale and Servicing Agreement. A copy of each of the
Sale and Servicing Agreement and the Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the
Certificateholders of not less than a 50% Percentage Interest in the Trust
Certificates and holders of not less than 50% of the Outstanding Amount of the
Controlling Securities (as defined in the Indenture). Any such consent by the
Holder of this Trust Certificate shall be conclusive and binding on such Holder
and on all future Holders of this Trust Certificate and of any Trust Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent is made upon this Trust Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Trust
Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in The City of New York, New York, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is the Owner Trustee.
Except as provided in the Trust Agreement, the Trust Certificates
shall be issued in a 100% Percentage Interest. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as
A-8
the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of all
property held as part of the Owner Trust Estate. The Servicer may at its option
purchase the Owner Trust Estate at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Trust Certificates; however,
such right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Original
Pool Balance.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, and hereby irrevocably
constitutes and appoints , attorney, to transfer said Trust Certificate on the
books of the Certificate Registrar, with full power of substitution in the
premises.
Dated:
________________________________________*/
-
Signature Guaranteed:
____________________________*/
-
_________________
*/ NOTICE: The signature to this assignment must correspond with the name as
-
it appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-10
EXHIBIT B
CERTIFICATE OF TRUST OF
WORLD OMNI AUTO RECEIVABLES TRUST 2001-A
----------------------------------------
THIS Certificate of Trust of WORLD OMNI AUTO RECEIVABLES TRUST 2001-A
(the "Trust"), is being duly executed and filed by the undersigned, as trustees,
to form a business trust under the Delaware Business Trust Act (12 Del. C. (S)
-------
3801 et seq.) (the "Act").
------
1. Name. The name of the business trust formed hereby is World Omni
----
Auto Receivables Trust 2001-A.
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust in the State of Delaware is The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective on
--------------
February 13, 2001.
B-1
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written in accordance with Section 3811(a) of the Act.
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
By:____________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Owner Trustee,
By:____________________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
World Omni Auto Receivables LLC
000 X.X. 00/xx/ Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
The Bank of New York, as Owner Trustee
World Omni Auto Receivables Trust 2001-A
Re: World Omni Auto Receivables Trust 2001-A
Trust Certificates
------------------
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Trust
Certificates (the "Certificates") we certify that (a) we understand that the
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and are being transferred by us in a transaction that is
exempt from the registration requirements of the Act and (b) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which would
result in, a violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By: _______________________________
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
World Omni Auto Receivables LLC
000 X.X. 00/xx/ Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
The Bank of New York, as Owner Trustee
World Omni Auto Receivables Trust 2001-A
Ladies and Gentlemen:
In connection with our proposed purchase of Trust Certificates (the
"Certificates") of World Omni Auto Receivables Trust 2001-A (the "Issuer"), we
confirm that:
1. We understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "1933 Act"), and may not
be sold except as permitted in the following sentence. We understand and
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, (x) that such Certificates are being offered
only in a transaction not involving any public offering within the meaning
of the 1933 Act and (y) that such Certificates may be resold, pledged or
transferred only (i) to the Depositor, (ii) to an "accredited investor" as
defined in Rule 501(a)(1),(2),(3) or (7) of Regulation D under the 1933 Act
(an "Accredited Investor") acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others also
are Accredited Investors unless the holder is a bank acting in its
fiduciary capacity) that executes a certificate substantially in the form
hereof, (iii) so long as such Certificate is eligible for resale pursuant
to Rule 144A under the 1933 Act ("Rule 144A"), to a person whom we
reasonably believe after due inquiry is a "qualified institutional buyer"
as defined in Rule 144A, acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others also
are "qualified institutional buyers") to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A or (iv)
in a sale, pledge or other transfer made in a transaction otherwise exempt
from the registration requirements of the 1933 Act, in which case the Owner
Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor in
writing the facts surrounding such transfer, which certification shall be
in form and substance satisfactory to the Owner Trustee and the Depositor.
Except in the case of a transfer described in clauses (i) or (iii) above,
the Owner Trustee shall require that a written opinion of counsel (which
will not be at the expense of the Depositor, any affiliate of the Depositor
or the Owner Trustee) satisfactory to the Depositor and the Owner Trustee
be delivered to the Depositor and the Owner Trustee to the effect that such
transfer will not violate the 1933 Act, and will be effected in accordance
with any applicable securities laws of each state of the United States. We
will notify any purchaser of the Certificates from us of the above resale
restrictions, if then applicable. We further understand that in connection
with any transfer of the Certificates by us that the Depositor and the
Owner Trustee may
D-1
request, and if so requested we will furnish, such certificates and other
information as they may reasonably require to confirm that any such
transfer complies with the foregoing restrictions.
2. [CHECK ONE]
(a) We are an Accredited Investor acting for our own account
(and not for the account of others) or as a fiduciary or agent
for others (which others also are Accredited Investors unless we
are a bank acting in its fiduciary capacity). We have such
knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment
in the Certificates, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their
investment for an indefinite period of time. We are acquiring the
Certificates for investment and not with a view to, or for offer
and sale in connection with, a public distribution.
(b) We are a "qualified institutional buyer" as defined under
Rule 144A under the 1933 Act and are acquiring the Certificates
for our own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are "qualified
institutional buyers"). We are familiar with Rule 144A under the
1933 Act and are aware that the seller of the Certificates and
other parties intend to rely on the statements made herein and
the exemption from the registration requirements of the 1933 Act
provided by Rule 144A.
3. We are not (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code, (iii) a
governmental plan (as defined in Section 3(32) of ERISA) subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code or (iv) any entity
whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). We hereby acknowledge
that no transfer of any Certificate shall be permitted to be made to any
person unless the Trustee has received (i) a certificate from such
transferee to the effect of the preceding sentence or (ii) an opinion of
counsel satisfactory to the Trustee to the effect that the purchase and
holding of any such Certificate will not constitute or result in the assets
of the Issuer being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA or Section 4975 of the Code and
will not subject the Owner Trustee, the Indenture Trustee, the Seller, the
Servicer or the Depositor to any obligation in addition to those undertaken
in the Basic Documents with respect to the Certificates (provided, however,
that the Owner Trustee will not require such certificate or opinion in the
event that, as a result of change of law or otherwise, counsel satisfactory
to the Owner Trustee has rendered an opinion to the effect that the
purchase and holding of any such Certificate by a Benefit Plan or a Person
that is purchasing or holding any such Certificate with the assets of a
Benefit Plan will not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code).
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4. We understand that the Depositor, the Trust and others will
rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and we agree that if any of the
acknowledgments, representations and warranties deemed to have been made by
us by our purchase of the Certificates, for our own account or for one or
more accounts as to each of which we exercise sole investment discretion,
are no longer accurate, we shall promptly notify the Depositor.
5. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By: ________________________________
Name:
Title:
Date: ______________________________
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