Exhibit 4.2
EXECUTION COPY
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POOLED AUTO SECURITIES SHELF LLC,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
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AMENDED AND RESTATED
TRUST AGREEMENT
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Dated as of December 1, 2005
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions..............................................1
Section 1.02. Other Definitional Provisions....................................6
Section 1.03. Interpretive Provisions..........................................6
ARTICLE TWO
ORGANIZATION
Section 2.01. Name 7
Section 2.02. Office...........................................................7
Section 2.03. Purposes and Powers..............................................7
Section 2.04. Appointment of Owner Trustee.....................................8
Section 2.05. Initial Capital Contribution of Owner Trust Estate...............8
Section 2.06. Declaration of Trust.............................................8
Section 2.07. Liability of Certificateholders..................................8
Section 2.08. Title to Trust Property..........................................8
Section 2.09. Situs of Issuer..................................................9
Section 2.10. Representations and Warranties of the Depositor..................9
Section 2.11. Federal Income Tax Matters......................................10
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership...............................................12
Section 3.02. The Certificates................................................12
Section 3.03. Authentication and Delivery of Certificates.....................12
Section 3.04. Registration, Transfer and Exchange of Certificates.............12
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates...............14
Section 3.06. Persons Deemed Certificateholders...............................14
Section 3.07. Access to List of Certificateholders' Names and
Addresses.......................................................15
Section 3.08. Maintenance of Office or Agency.................................15
Section 3.09. Appointment of Paying Agent.....................................15
Section 3.10. Certificates Nonassessable and Fully Paid.......................16
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to
Certain Matters.................................................17
Section 4.02. Action by Certificateholders with Respect to
Certain Matters.................................................17
Section 4.03. Action by Certificateholders with Respect to Bankruptcy.........18
Section 4.04. Restrictions on Certificateholders' Power.......................18
Section 4.05. Majority Control................................................18
Section 4.06. Certain Litigation Matters......................................18
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account....................19
Section 5.02. Application of Trust Funds......................................19
Section 5.03. Method of Payment...............................................20
Section 5.04. No Segregation of Monies; No Interest...........................20
Section 5.05. Accounting and Reports to Noteholders, Certificateholders,
the IRS and Others..............................................20
Section 5.06. Signature on Returns; Tax Matters Partner.......................21
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority...............................................22
Section 6.02. General Duties..................................................22
Section 6.03. Action Upon Instruction.........................................23
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions....................................................23
Section 6.05. No Action Except Under Specified Documents or Instructions......24
Section 6.06. Restrictions....................................................24
ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties............................................25
Section 7.02. Furnishing of Documents.........................................26
Section 7.03. Representations and Warranties..................................27
Section 7.04. Reliance; Advice of Counsel.....................................27
Section 7.05. Not Acting in Individual Capacity...............................28
Section 7.06. Owner Trustee Not Liable for Certificates or Receivables........28
Section 7.07. Owner Trustee May Own Certificates and Notes....................28
Section 7.08. Paying Agent; Authenticating Agent..............................29
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses...............................30
Section 8.02. Indemnification.................................................30
Section 8.03. Payments to the Owner Trustee...................................30
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement..................................31
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee.....................33
Section 10.02. Resignation or Removal of Owner Trustee........................33
Section 10.03. Successor Owner Trustee........................................34
Section 10.04. Merger or Consolidation of Owner Trustee.......................34
Section 10.05. Appointment of Co-Trustee or Separate Trustee..................35
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.....................................37
Section 11.02. No Legal Title to Owner Trust Estate in Certificateholders.....38
Section 11.03. Limitations on Rights of Others................................38
Section 11.04. Notices........................................................39
Section 11.05. Severability...................................................39
Section 11.06. Counterparts...................................................39
Section 11.07. Successors and Assigns.........................................39
Section 11.08. Covenants of the Depositor.....................................39
Section 11.09. No Petition....................................................40
Section 11.10. No Recourse....................................................40
Section 11.11. Headings.......................................................40
Section 11.12. GOVERNING LAW..................................................40
Section 11.13. Servicer Payment Obligation....................................40
EXHIBITS
Exhibit A - Form of Certificate..............................................A-1
Exhibit B - Form of Certificate of Trust.....................................B-1
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of December 1, 2005,
is between Pooled Auto Securities Shelf LLC, a Delaware limited liability
company, as depositor (the "Depositor"), and Wilmington Trust Company, a
Delaware banking corporation, as trustee (the "Owner Trustee").
WHEREAS, Wachovia Auto Owner Trust 2005-B has been created pursuant to a
trust agreement, dated as of June 17, 2005, between the Depositor and the Owner
Trustee (the "Initial Trust Agreement"), and the filing of a certificate of
trust with the Secretary of State of the State of Delaware on June 17, 2005; and
WHEREAS, the Depositor and the Owner Trustee wish to amend and restate the
Initial Trust Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accountants" means a firm of independent public accountants.
"Administration Agreement" means the administration agreement, dated as of
December 1, 2005, among the Administrator, the Issuer, the Depositor and the
Indenture Trustee.
"Administrator" means Wachovia Bank, in its capacity as administrator
under the Administration Agreement, and its successors in such capacity.
"Affiliate" has the meaning specified in the Sale and Servicing Agreement.
"Agreement" means this Amended and Restated Trust Agreement.
"Applicants" has the meaning specified in Section 3.07.
"Basic Documents" has the meaning specified in the Sale and Servicing
Agreement.
"Benefit Plan" means (i) an employee benefit plan (as such term is defined
in Section 3(3) of 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.
"Business Day" has the meaning specified in the Sale and Servicing
Agreement.
"Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Owner Trust Estate, substantially in the form of
Exhibit A.
"Certificate of Trust" means the Certificate of Trust substantially in the
form of Exhibit B filed for the Issuer pursuant to Section 3810(a) of the
Statutory Trust Statute.
"Certificate Payment Account" has the meaning specified in Section 5.01.
"Certificate Percentage Interest" has the meaning specified in the Sale
and Servicing Agreement.
"Certificate Register" and "Certificate Registrar" shall have the
respective meanings specified in Section 3.04(a).
"Certificateholder" or "Holder" means a Person in whose name a Certificate
is registered on the Certificate Register.
"Class" has the meaning specified in the Indenture.
"Closing Date" has the meaning specified in the Indenture.
"Code" has the meaning specified in the Indenture.
"Collection Period" has the meaning specified in the Indenture.
"Commission" has the meaning specified in the Sale and Servicing
Agreement.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, or at such other address as the Owner Trustee
may designate from time to time by notice to the Certificateholders, the
Indenture Trustee, the Servicer and the Depositor, or the principal corporate
trust office of any successor Owner Trustee at the address designated by such
successor Owner Trustee by notice to the Certificateholders, the Indenture
Trustee, the Servicer and the Depositor.
"Cutoff Date Pool Balance" has the meaning specified in the Sale and
Servicing Agreement.
"Depositor" means PASS, in its capacity as depositor hereunder, and its
successors in such capacity.
"Distribution Date" has the meaning specified in the Indenture.
"Eligible Institution" has the meaning specified in the Sale and Servicing
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Excess Collections" has the meaning specified in the Indenture.
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"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Final Scheduled Distribution Date" has the meaning specified in the Sale
and Servicing Agreement.
"Financed Vehicle" has the meaning specified in the Sale and Servicing
Agreement.
"Indemnified Parties" means the Owner Trustee and its successors, assigns,
directors, officers and agents.
"Indenture" means the indenture, dated as of December 1, 2005, between the
Issuer and the Indenture Trustee.
"Indenture Trustee" has the meaning specified in the Indenture.
"Initial Receivables" has the meaning set forth in the Sale and Servicing
Agreement.
"IRS" means the United States Internal Revenue Service.
"Issuer" has the meaning specified in the Indenture.
"Lien" has the meaning specified in the Sale and Servicing Agreement.
"Maryland Vehicle Sales Finance Act" has the meaning specified in the
Indenture.
"Xxxxx'x" has the meaning specified in the Indenture.
"Negative Carry Account" has the meaning set forth in the Sale and
Servicing Agreement.
"Note Balance" has the meaning specified in the Indenture.
"Note Registrar" has the meaning specified in the Indenture.
"Noteholder" has the meaning specified in the Indenture.
"Notes" has the meaning specified in the Indenture.
"Opinion of Counsel" means one or more written opinions of counsel, who
may be an employee of or counsel to the Depositor or the Servicer, which counsel
shall be acceptable to the Indenture Trustee or the Owner Trustee, as the case
may be.
"Optional Purchase" means the exercise by the Servicer of its option to
purchase all remaining Receivables from the Issuer on any Distribution Date
following the last day of a Collection Period as of which the Pool Balance is
10% or less of the Cutoff Date Pool Balance.
"Outstanding" has the meaning specified in the Indenture.
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"Owner Trust Estate" means the $1,000 initial capital contribution from
the Depositor and all right, title and interest of the Issuer in, to and under
the property and rights assigned to the Issuer pursuant to Article Two of the
Sale and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under this Agreement, and any successor in
such capacity.
"PASS" means Pooled Auto Securities Shelf LLC.
"Paying Agent" means Wachovia Bank, in its capacity as Paying Agent under
this Agreement, and any successor paying agent or co-paying agent appointed
pursuant to Section 3.09 who is authorized by the Owner Trustee on behalf of the
Issuer to make distributions from the Certificate Payment Account on behalf of
the Issuer.
"Pennsylvania Motor Vehicle Sales Finance Act" has the meaning specified
in the Indenture.
"Person" has the meaning specified in the Sale and Servicing Agreement.
"Plan Asset Regulation" means 29 C.F.R. Section 2510.3-101 issued by the
United States Department of Labor concerning the definition of what constitutes
the assets of a Benefit Plan with respect to such Benefit Plan's investment in
an entity for purposes of the fiduciary responsibility provisions of Title I of
ERISA and Section 4975 of the Code.
"Pool Balance" has the meaning specified in the Sale and Servicing
Agreement.
"Pre-Funding Account" has the meaning specified in the Sale and Servicing
Agreement.
"Pre-Funding Period" has the meaning specified in the Sale and Servicing
Agreement.
"Protected Purchaser" has the meaning specified in Section 8-303 of the
UCC.
"PTCE 95-60" means Prohibited Transaction Class Exemption 95-60.
"Rating Agency" has the meaning specified in the Indenture.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" has the meaning specified in the Receivables Purchase
Agreement.
"Receivables Purchase Agreement" means the receivables purchase agreement,
dated as of December 1, 2005, between the Seller and PASS.
"Record Date" means, with respect to the Certificates and any Distribution
Date, the close of business on the Business Day immediately preceding such
Distribution Date.
"Required Rating" has the meaning specified in the Sale and Servicing
Agreement.
"Reserve Fund" has the meaning specified in the Sale and Servicing
Agreement.
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"Responsible Officer" has the meaning specified in the Sale and Servicing
Agreement.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of December 1, 2005, among the Issuer, the Depositor, the Seller and
the Servicer.
"Secretary of State" means the Secretary of State of the State of
Delaware. "Seller" has the meaning specified in the Receivables Purchase
Agreement.
"Servicer" has the meaning specified in the Sale and Servicing Agreement.
"Servicer Termination Event" has the meaning specified in the Sale and
Servicing Agreement.
"Standard & Poor's" has the meaning specified in the Indenture.
"State" has the meaning specified in the Indenture.
"Statutory Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq.
"Subsequent Cutoff Date" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Receivables" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Transfer Date" has the meaning specified in the Sale and
Servicing Agreement.
"Successor Servicer" has the meaning specified in the Sale and Servicing
Agreement.
"Transfer" means a sale, exchange, transfer, assignment, participation,
pledge or other disposition of a Certificate.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary Treasury Regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"UCC" has the meaning specified in the Indenture.
"United States" has the meaning specified in the Indenture.
"Vice President" has the meaning specified in the Sale and Servicing
Agreement.
"Wachovia Bank" means Wachovia Bank, National Association.
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Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement or the
Indenture, as the case may be.
(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.
Section 1.03. Interpretive Provisions. With respect to all terms in this
Agreement, unless the context otherwise requires: (i) a term has the meaning
assigned to it; (ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect from time to time in the United States; (iii) "or" is not exclusive; (iv)
"including" means including without limitation; (v) words in the singular
include the plural and words in the plural include the singular; (vi) 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, restated, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; (vii)
references to a Person are also to its successors and permitted assigns; (viii)
the words "hereof", "herein" and "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; (ix) Section, subsection, Schedule and
Exhibit references in this Agreement are references to Sections, subsections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; (x)
references to "writing" include printing, typing, lithography and other means of
reproducing words in a visible form; and (xi) the term "proceeds" has the
meaning set forth in the applicable UCC.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The statutory trust created by the Initial Trust
Agreement and the filing of the Certificate of Trust and continued hereby shall
be known as "Wachovia Auto Owner Trust 2005-B", in which name the Owner Trustee
may conduct the business of the Issuer, make and execute contracts and other
instruments on behalf of the Issuer and xxx and be sued on behalf of the Issuer,
to the extent herein provided.
Section 2.02. Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware 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 Issuer is, and the Issuer shall have the power and
authority to engage in, the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell the Notes upon the
written order of the Depositor;
(ii) to use the proceeds of the sale of the Notes, at the direction
of the Depositor, to (A) fund (1) the Reserve Fund with an amount equal to
the Reserve Fund Initial Deposit, (2) the Yield Supplement Account with an
amount equal to the Yield Supplement Account Initial Deposit, (3) the
Pre-Funding Account with an amount equal to the Pre-Funding Account
Initial Deposit (4) the Negative Carry Account with the Maximum Negative
Carry Amount, (B) purchase the Initial Receivables to be acquired on the
Closing Date, (C) purchase the Subsequent Receivables to be acquired on
one or more Subsequent Transfer Dates during the Pre-Funding Period and in
connection with each such Subsequent Transfer Date to fund (1) the Reserve
Fund with the applicable Reserve Fund Subsequent Deposit and (2) the Yield
Supplement Account with the Yield Supplement Account Subsequent Deposit,
(D) pay the organizational, start-up and transactional expenses of the
Issuer and (E) to pay the balance to the Depositor pursuant to the Sale
and Servicing Agreement;
(iii) to pay interest on and principal of the Notes to the
Noteholders and to cause any Excess Collections to be paid to the
Certificateholders or otherwise in accordance with the Indenture;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate (other than the Certificate Payment Account and the
proceeds thereof) to the Indenture Trustee pursuant to the Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
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(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(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
Noteholders and the Certificateholders.
(b) The Issuer is hereby authorized to engage in the foregoing activities.
The Issuer shall not engage in any activities other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
and the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby confirms
the appointment of the Owner Trustee as trustee of the Issuer effective as of
the date of creation of the Issuer, to have all the rights, powers and duties
set forth herein and in the Statutory Trust Statute, and the Owner Trustee
hereby confirms its acceptance of such appointment.
The Owner Trustee may engage, in the name of the Issuer or in its own name
on behalf of the Issuer, in the activities of the Issuer, make and execute
contracts on behalf of the Issuer and xxx on behalf of the Issuer.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. As of
June 17, 2005, the Depositor assigned, transferred, conveyed and set over to the
Owner Trustee the sum of $1,000. The Owner Trustee hereby acknowledges receipt
in trust from the Depositor, as of such date, of the foregoing contribution,
which amounts constituted the initial Owner Trust Estate and were deposited in
the Certificate Payment Account. The Depositor shall pay the organizational
expenses of the Issuer 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 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 Issuer under the Basic Documents. It is the intention of
the parties hereto that (i) the Issuer constitute a statutory trust under the
Statutory Trust Statute and that this Agreement constitute the governing
instrument of such statutory trust and (ii) solely for income and franchise tax
purposes, the Issuer shall be treated as either an entity that is disregarded as
separate from the beneficial owner of the equity if there is only one such
owner, or as a partnership (other than an association or publicly traded
partnership) if there are two or more such owners, with the assets of the
partnership being the Receivables and other assets held by the Issuer, the
partners of the partnership being the Certificateholders and any holders of the
Notes that are required by the IRS to be treated as equity in the Issuer, and
the remaining Notes constituting indebtedness of the partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Issuer
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the foregoing characterization of the Issuer for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Statutory Trust
Statute to accomplish the purposes of the Issuer as set forth in Section
2.03(a). The Owner Trustee has filed the Certificate of Trust with the Secretary
of State.
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Section 2.07. Liability of Certificateholders. The Certificateholders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations organized under the general corporation law
of the State of Delaware.
Section 2.08. Title to Trust Property. Legal title to the entirety of the
Owner Trust Estate shall be vested at all times in the Issuer as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the 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
or a separate trustee, as the case may be.
Section 2.09. Situs of Issuer. The Issuer will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Issuer shall be located in the States of Delaware, North Carolina
or New York. The Issuer shall not have any employees in any State other than the
State of 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 Issuer only in, and payments will be
made by the Issuer only from, the States of Delaware, North Carolina or New
York. The only office of the Issuer will be at the Corporate Trust Office.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly existing as
a limited liability company in good standing under the laws of the State
of Delaware, with power, authority and legal right to own its properties
and to conduct its business as such properties are currently owned and
such business is presently conducted, and had at all relevant times, and
has the power, authority and legal right to acquire, own and sell the
Receivables.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing and has obtained all necessary
licenses and approvals in each jurisdiction in which the failure to so
qualify or to obtain such licenses and approvals would materially and
adversely affect the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement, any of the
other Basic Documents to which it is a party, the Receivables, the Notes
or the Certificates.
(c) The Depositor has the power and authority to execute, deliver
and perform its obligations under this Agreement and each other Basic
Document to which it is a party; the Depositor has full power and
authority to sell, assign, transfer and convey the property to be sold and
assigned to and deposited with the Owner Trustee as part of the Owner
Trust Estate and the Depositor has duly authorized such sale and
assignment and deposit to the Issuer by all necessary limited liability
company action; and the execution, delivery and performance of this
Agreement and the other Basic Documents to which it is a party have been
duly authorized by the Depositor by all necessary limited liability
company action.
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(d) This Agreement constitutes a legal, valid and binding obligation
of the Depositor, enforceable in accordance with its terms, except as such
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance 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.
(e) The execution, delivery and performance by the Depositor of this
Agreement and each other Basic Document to which the Depositor is a party,
the consummation of the transactions contemplated hereby and thereby and
the fulfillment of the terms hereof and thereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time or both) a default under, the
certificate of formation or limited liability company agreement of the
Depositor, or 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 or to which any of its
properties are subject; nor result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order of any court, rule or regulation applicable to the
Depositor or its properties or of any federal or State regulatory body,
court, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties; which breach, default,
conflict, Lien or violation would have a material adverse effect on the
earnings, business affairs or business prospects of the Depositor.
(f) There are no proceedings or investigations pending or, to the
Depositor's knowledge, threatened against the Depositor before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties
(i) asserting the invalidity of this Agreement, any other Basic Document,
the Notes or the Certificates, (ii) seeking to prevent the issuance of the
Notes or the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any of the other Basic Documents, (iii)
seeking any determination or ruling that would materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement, any of the other Basic
Documents, the Receivables, the Notes or the Certificates or (iv) that
would adversely affect the federal tax attributes of the Issuer or of the
Notes or the Certificates.
(g) The representations and warranties of the Depositor in Section
3.01 of the Receivables Purchase Agreement are true and correct.
Section 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent of
the Depositor and the Servicer that, for purposes of federal income, State and
local income and franchise tax and any other income taxes, the Issuer shall be
treated as either an entity that is disregarded as separate from the beneficial
owner of the equity in the Issuer if there is only one such owner, or as a
partnership (other than an association or publicly traded partnership) if there
are two or more such owners, and income,
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gain or loss of the Issuer for such month as determined for federal, State and
local income and franchise tax purposes shall be allocated among the
Certificateholders as of the Record Date occurring within such month, in
proportion to their ownership of the Certificate Percentage Interest on such
date. The Depositor hereby agrees and each Certificateholder by acceptance of
a Certificate agrees to such treatment and each agrees to take no action
inconsistent with the foregoing characterization.
The Depositor is authorized to modify the allocations in this Section if
necessary or appropriate, in its sole discretion, for the allocations to reflect
fairly the economic income, gain or loss to the Certificateholders or as
otherwise required by the Code.
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ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Issuer by the
contribution by the Depositor as described in Section 2.05 and until the
issuance of the Certificates, the Depositor shall be the sole beneficiary of the
Issuer.
Section 3.02. The Certificates. The Certificates shall be issued in one or
more registered, definitive, physical certificates substantially in the form of
Exhibit A. The Certificates may be in printed or typewritten form and shall be
executed on behalf of the Issuer by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer, shall be
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
If Transfer of the Certificates is permitted pursuant to this Section and
Section 3.04, a transferee of a 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 Certificate
duly registered in such transferee's name pursuant to Section 3.04.
Section 3.03. Authentication and Delivery of Certificates. Concurrently
with the sale of the Receivables to the Issuer pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates to be
executed on behalf of the Issuer, authenticated and delivered to or upon the
written order of the Depositor, signed by its president, any Vice President, its
treasurer, any assistant treasurer, its secretary or any assistant secretary,
without further limited liability company action by the Depositor. No
Certificate shall entitle the respective Certificateholder to any benefit under
this Agreement, or be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or its authenticating agent, by
manual signature; and such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Upon issuance, authentication and delivery pursuant to the terms hereof, the
Certificates will be entitled to the benefits of this Agreement.
Section 3.04. Registration, Transfer and Exchange of Certificates.
(a) The Owner Trustee initially shall be the registrar (the "Certificate
Registrar") for the purpose of registering Certificates and Transfers of
Certificates as herein provided. The Certificate Registrar shall keep or cause
to be kept, at the office or agency maintained pursuant to Section 3.08, a
register (the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and the registration of Transfers of Certificates.
Upon any resignation of any Certificate Registrar, the Owner Trustee shall, upon
receipt of written instructions from the Depositor, promptly appoint a successor
thereto.
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(b) The Certificates may not be acquired by or for the account of a
Benefit Plan. Each Certificateholder, by its acceptance of a Certificate, shall
be deemed to have represented and warranted that such Certificateholder is not
(i) a Benefit Plan and is not a Person acting on behalf of a Benefit Plan or a
Person using the assets of a Benefit Plan to effect the transfer of such
Certificate or (ii) an insurance company purchasing a Certificate with funds
contained in an "insurance company general account" (as defined in Section V(e)
of PTCE 95-60) that includes the assets of a Benefit Plan for purposes of the
Plan Asset Regulation.
Any Person who is not an Affiliate of the Seller and acquires more than
49.9% of the Certificates will be deemed to represent that it is not a party in
interest (within the meaning of ERISA) or a disqualified person (within the
meaning of Section 4975(e)(2) of the Code) with respect to any Benefit Plan,
other than a Benefit Plan that it sponsors for the benefit of its employees, and
that no Benefit Plan with respect to which it is a party in interest has or will
acquire any interest in the Notes.
To the extent permitted under applicable law (including ERISA), neither
the Owner Trustee nor the Certificate Registrar shall be under any liability to
any Person for any registration of Transfer of any Certificate that is in fact
not permitted under applicable law (including ERISA) or for taking any other
action with respect to such Certificate under the provisions of this Agreement
so long as such Transfer was registered by the Owner Trustee or the Certificate
Registrar in accordance with this Agreement.
(c) Upon surrender by a Certificateholder for registration of Transfer of
any Certificate at the office or agency of the Certificate Registrar to be
maintained as provided in Section 3.08, and upon compliance with any provisions
of this Agreement relating to such Transfer, the Owner Trustee shall execute on
behalf of the Issuer and the Owner Trustee shall authenticate and deliver to the
Certificateholder making such surrender, in the name of the designated
transferee or transferees, one or more new Certificates in any authorized
denomination evidencing the same aggregate interest in the Issuer. Each
Certificate presented or surrendered for registration of Transfer shall be
accompanied by a written instrument of transfer and accompanied by IRS Form
X-0XXX, X-0XXX or W-9, as applicable, in form satisfactory to the Owner Trustee
and the Certificate Registrar, duly executed by the Certificateholder or his
attorney duly authorized in writing. Each Certificate presented or surrendered
for registration of Transfer shall be canceled and subsequently disposed of by
the Certificate Registrar in accordance with its customary practice. No service
charge shall be made for any registration of Transfer of 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 of Certificates.
(d) All Certificates surrendered for registration of Transfer, if
surrendered to the Issuer or any agent of the Owner Trustee or the Issuer under
this Agreement, shall be delivered to the Owner Trustee and promptly cancelled
by it, or, if surrendered to the Owner Trustee, shall be promptly cancelled by
it, and no Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Owner Trustee shall
dispose of cancelled Certificates in accordance with its normal practice.
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Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is 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 Certificate has been acquired by a Protected Purchaser, the
Owner Trustee on behalf of the Issuer shall execute and the Owner Trustee or its
authenticating agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of a like tenor and Certificate Percentage Interest. If, after the delivery of
such replacement Certificate or payment of a destroyed, lost or stolen
Certificate, a Protected Purchaser of the original Certificate in lieu of which
such replacement Certificate was issued presents for payment such original
Certificate, the Issuer and the Owner Trustee shall be entitled to recover such
replacement Certificate (or such payment) from the Person to whom such
replacement Certificate was delivered or any Person taking such replacement
Certificate from such Person to whom such replacement Certificate was delivered
or any assignee of such Person, except a Protected Purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the Owner
Trustee in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of ownership in the Issuer, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
(b) Upon the issuance of any replacement Certificate under this Section,
the Issuer may require the payment by the Certificateholder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with such issuance and any other reasonable expenses (including the fees and
expenses of the Owner Trustee) related thereto.
(c) Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.06. Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of Transfer, the Owner Trustee, the
Certificate Registrar, any Paying Agent and any of their respective agents may
treat the Person in whose name such Certificate is registered in the Certificate
Register (as of the day of determination) as the Certificateholder of such
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, any Paying Agent or any of their respective agents shall
be bound by any notice to the contrary.
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Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the
Servicer, the Paying Agent and the Depositor, or to the Indenture Trustee or the
Owner Trustee, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer, the Paying Agent, the Depositor or
the Indenture Trustee or the Owner Trustee, as the case may be, a list, in such
form as the requesting party may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less than
25% of the aggregate Certificate Percentage Interest (hereinafter referred to as
the "Applicants"), apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such Applicants propose to transmit (which shall be deemed to
be a purpose reasonably related to the Applicants' interest in the Issuer), then
the Certificate Registrar 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 Certificateholder, by receiving and
holding a 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 Certificate Registrar
shall maintain an office or offices or agency or agencies where Certificates may
be surrendered for registration of Transfer or exchange and where notices and
demands to or upon the Certificate Registrar in respect of the Certificates and
the Basic Documents may be served. The Certificate Registrar initially
designates the Corporate Trust Office as its office for such purposes. The
Certificate Registrar shall give prompt written notice to the Depositor, the
Owner Trustee and the Certificateholders of any change in the location of the
Certificate Registrar or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Payment Account
pursuant to Section 5.02(a) 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 Certificate Payment 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 Paying Agent shall initially be Wachovia
Bank, and any co-paying agent chosen by the Paying Agent that is acceptable to
the Owner Trustee and the Depositor. Each Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' prior written notice to the Owner Trustee.
In the event that Wachovia Bank shall no longer be the Paying Agent, the Owner
Trustee, upon receipt of written instruction from the Depositor, 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 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 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
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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. If at any time the Owner Trustee shall act as Paying Agent, the
rights, privileges, protections and indemnities afforded to the Owner Trustee
hereunder shall apply equally to the Owner Trustee in its role as Paying
Agent. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 3.10. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Issuer.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Issuer or for any reason whatsoever, and, upon the
authentication thereof by the Owner Trustee pursuant to Section 3.03, 3.04 or
3.05, the Certificates are and shall be deemed fully paid.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain
Matters. Subject to the provisions and limitations of Section 4.04, 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 and the Rating Agencies in writing of the
proposed action and the Certificateholders evidencing not less than 51% of the
aggregate Certificate Percentage Interest 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 Issuer and the
settlement of any action, proceeding, investigation, claim or lawsuit
brought by or against the Issuer, in each case (except claims or lawsuits
for collection by the Servicer of the Receivables brought by the Issuer);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Statutory 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 materially adversely affects the interests of the
Certificateholders;
(e) the amendment of the Sale and Servicing Agreement or the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or to 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, Indenture Trustee or Certificate
Registrar of its respective obligations under the Indenture or this
Agreement, as applicable.
Section 4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of a Servicer
Termination Event, subsequent to the payment in full of the Notes and in
accordance with the written direction of the Certificateholders evidencing not
less than 51% of the aggregate Certificate Percentage Interest, (i) remove the
Servicer pursuant to Article Seven of the Sale and Servicing Agreement, (ii)
appoint a Successor Servicer pursuant to Article Seven of the Sale and Servicing
Agreement, (iii) remove the Administrator pursuant to Section 1.09 of the
Administration Agreement, (iv) appoint a successor Administrator pursuant to
Section 1.09 of the Administration Agreement
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or (v) sell the Receivables after the termination of the Indenture, except as
expressly provided in the Basic Documents.
Section 4.03. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer unless (i) the Notes have been paid in full
and (ii) each Certificateholder approves of such commencement in writing in
advance and delivers to the Owner Trustee a certificate certifying that such
Person reasonably believes that the Issuer is insolvent.
Section 4.04. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to the purposes of the Issuer as set forth
in Section 2.03, 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 Certificateholders evidencing not less than 51% of the aggregate
Certificate Percentage Interest. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Certificateholders evidencing not less than 51%
of the aggregate Certificate Percentage Interest at the time of the delivery of
such notice.
Section 4.06. Certain Litigation Matters. The Owner Trustee shall provide
prompt written notice to the Depositor, the Seller and the Servicer of any
action, proceeding or investigation actually known to a Responsible Officer of
the Owner Trustee that could reasonably be expected to adversely affect the
Issuer or the Owner Trust Estate or their respective rights or obligations under
any of the Basic Documents.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account. Pursuant to
Section 4.01 of the Sale and Servicing Agreement, the Servicer has agreed to
establish, on or before the Closing Date, and maintain in the name of the Owner
Trustee at an Eligible Institution (which shall initially be the Paying Agent) a
segregated trust account designated as the "Wachovia Auto Owner Trust 2005-B
Certificate Payment Account" (the "Certificate Payment Account"). The
Certificate Payment Account shall be held in trust for the benefit of the
Certificateholders. Except as expressly provided in Section 3.09, the
Certificate Payment Account shall be under the sole dominion and control of the
Owner Trustee. All monies deposited from time to time in the Certificate Payment
Account pursuant to the Sale and Servicing Agreement or the Indenture shall be
applied as provided in this Agreement, the Sale and Servicing Agreement and the
Indenture.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, upon receipt from the Servicer of a
distribution statement pursuant to Section 4.09(a) of the Sale and Servicing
Agreement, the Owner Trustee shall (if at any time it is the Paying Agent), or
shall direct the Paying Agent to, distribute to the Certificateholders, in
proportion to each Certificateholder's Certificate Percentage Interest, amounts
deposited in the Certificate Payment Account on such Distribution Date pursuant
to Section 4.06 of the Sale and Servicing Agreement and Section 2.08 of the
Indenture.
(b) On each Distribution Date, the Owner Trustee shall (if at any time it
is the Paying Agent), or shall direct the Paying Agent to, send to each
Certificateholder the statement or statements provided to the Owner Trustee by
the Servicer pursuant to Section 4.09 of the Sale and Servicing Agreement with
respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to such Certificateholder in accordance with
this Section. The Owner Trustee and each Paying Agent are hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any such withholding tax
that is legally owed by the Issuer (but such authorization shall not prevent the
Owner Trustee or any Paying Agent from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings, it being understood that neither the Owner
Trustee nor any Paying Agent shall have any duty to contest such amounts). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Issuer and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the Owner
Trustee or any Paying Agent may, but shall not be obligated to, withhold such
amounts in accordance with this Section. If a Certificateholder wishes to apply
for a refund of any such withholding tax, the Owner Trustee and each Paying
Agent shall reasonably cooperate with such Certificateholder in making such
claim so long as such
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Certificateholder agrees to reimburse the Owner Trustee and each Paying Agent
for any out-of-pocket expenses incurred, as applicable.
Section 5.03. Method of Payment. Subject to Section 9.01(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date by wire transfer,
in immediately available funds, to the account of such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar and the
Paying Agent appropriate written instructions at least five Business Days prior
to such Distribution Date and such Certificateholder is the Seller or an
Affiliate thereof or, if not, by check mailed to such Certificateholder at the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the foregoing, the final distribution in respect of any
Certificate (whether on the Final Scheduled Distribution Date or otherwise) will
be payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by the Certificate Registrar
pursuant to Section 3.08.
Section 5.04. No Segregation of Monies; No Interest. Subject to Sections
5.01 and 5.02, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, the Indenture 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 Noteholders, Certificateholders,
the IRS and Others. The Owner Trustee shall, upon receipt of and based on
information provided by the Seller, (i) maintain (or cause to be maintained) the
books of the Issuer on the basis of a fiscal year ending December 31 and, based
on the accrual method of accounting, (ii) deliver to each Certificateholder, as
may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable such
Certificateholder to prepare its federal and State income tax returns, (iii)
file such tax returns relating to the Issuer (including a partnership
information return, IRS Form 1065, if required) and make such elections as may
from time to time be required or appropriate under any applicable State or
federal statute or rule or regulation thereunder so as to maintain the Issuer's
characterization as a partnership, if so characterized, for federal income tax
purposes, (iv) cause such tax returns to be signed in the manner required by law
and (v) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.02(c) with respect to income or distributions to
Certificateholders. The Owner Trustee, on behalf of the Issuer, shall elect
under Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Receivables. The Owner Trustee, on
behalf of the Issuer, shall not make the election provided under Section 754 of
the Code.
The Owner Trustee may satisfy its obligations with respect to this Section
and Section 5.02(c) by retaining, at the expense of the Seller, Accountants
selected by the Seller. The Owner Trustee may require the Accountants to provide
to the Owner Trustee, on or before December 31, 2005, a letter in form and
substance satisfactory to the Owner Trustee as to whether any federal tax
withholding on Certificates is then required and, if required, the procedures to
be followed with respect thereto to comply with the requirements of the Code.
The Accountants shall be required to update such letter in each instance that
any additional tax
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withholding is subsequently required or any previously required tax
withholding shall no longer be required. The Owner Trustee shall be deemed to
have discharged its obligations pursuant to this Section and Section 5.02(c)
upon its retention of the Accountants, and the Owner Trustee shall not have
any liability with respect to the default, negligence or misconduct of the
Accountants. The Owner Trustee shall be entitled to rely on and shall be fully
protected in so relying, upon the letter, referred to in this paragraph, from
the Accountants and shall have no duty or obligation to verify the accuracy of
the contents of such letter.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign, on behalf of the Issuer, the tax returns
of the Issuer upon receipt of such completed tax returns.
(b) In the event that the Issuer is required to be treated as a
partnership for federal income tax purposes, PASS Holding LLC, or the Holder of
the greatest percentage interest of the Certificates, in the event that PASS
Holding LLC no longer owns any Certificates, shall be designated the "tax
matters partner" of the Issuer pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and limitations
of Section 2.03, the Owner Trustee is authorized and directed to execute and
deliver each Basic Document to which the Issuer is to be a party and each
certificate or other document attached as an exhibit to or contemplated by any
Basic Document to which the Issuer is to be a party, in each case in such form
as the Depositor shall approve and provide to the Owner Trustee for execution,
as evidenced conclusively by the Owner Trustee's execution thereof and the
Depositor's execution of this Agreement, and to direct the Indenture Trustee to
authenticate and deliver Notes in the aggregate principal amount of
$1,900,000,000 (comprised of $351,000,000 aggregate principal amount of Class
A-1 Notes, $572,000,000 aggregate principal amount of Class A-2 Notes,
$377,000,000 aggregate principal amount of Class A-3 Notes, $348,000,000
aggregate principal amount of Class A-4 Notes, $175,200,000 aggregate principal
amount of Class A-5 Notes and $76,800,000 aggregate principal amount of Class B
Notes). In addition to the foregoing, the Owner Trustee is authorized, but shall
not be obligated, to take all actions required of the Issuer pursuant to the
Basic Documents. Subject to Section 2.03, the Owner Trustee is further
authorized from time to time to take such action on behalf of the Issuer as is
permitted by the Basic Documents and which the Certificateholders, the Servicer
or the Administrator recommends in writing with respect to the Basic Documents,
except to the extent that this Agreement expressly requires the consent of the
Certificateholders for such action.
Section 6.02. General Duties.
(a) Subject to the provisions and limitations of Section 2.03, 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 each other
Basic Document to which it is a party and to administer the Issuer for the
benefit of the Certificateholders, subject to and in accordance with the Basic
Documents. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged (or caused to be discharged) its duties and responsibilities
hereunder and under the other 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 Issuer hereunder or under any other Basic
Document, and the Owner Trustee shall not be held liable for the default,
negligence or failure of the Administrator to carry out its obligations under
the Administration Agreement. The Owner Trustee shall have no duty or obligation
to oversee the Administrator in the exercise of its duties or obligations under
the Administration Agreement.
(b) The Owner Trustee shall cooperate with the Administrator in carrying
out the Administrator's obligation to qualify and preserve the Issuer's
qualification to do business in each jurisdiction, if any, in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Receivables and any other
instrument and agreement included in the Owner Trust Estate; provided that the
Owner Trustee may rely on advice of counsel with respect to such obligation.
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Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, 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 Issuer.
(b) The Owner Trustee shall not be required to take any action under this
Agreement or any other 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
of this Agreement or any other Basic Document or is otherwise contrary to law.
(c) Subject to Article Four, whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms
of this Agreement or any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders of record as of the preceding Record Date, 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 written instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) Subject to Article Four, in the event the Owner Trustee is unsure as
to the application of any provision of this Agreement or any other 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 of record as of the preceding Record Date, 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 written
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action or
inaction.
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
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contemplated hereby to which the Owner Trustee or the Issuer 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
other 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 Commission filing for the Issuer or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Liens (other than the Lien of the Indenture) on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee
in its individual capacity 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 in accordance with (i) the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) the other Basic Documents to which the Issuer is a party
and (iii) any document or written instruction delivered to the Owner Trustee
pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
that (i) is inconsistent with the purposes of the Issuer set forth in Section
2.03 or (ii) to the actual knowledge of a Responsible Officer of the Owner
Trustee, would (a) affect the treatment of the Notes as indebtedness for federal
income or North Carolina income or franchise tax purposes, (b) be deemed to
cause a taxable exchange of the Notes for federal income or North Carolina
income or franchise tax purposes or (c) cause the Issuer or any portion thereof
to be taxable as an association or publicly traded partnership taxable as a
corporation for federal income or North Carolina income or franchise tax
purposes. The Certificateholders, the Administrator and the Servicer shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
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ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties. The Owner Trustee accepts the trust
hereby continued and agrees to perform its duties hereunder, but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all monies
actually received by it in accordance with the Basic Documents and constituting
part of the Owner Trust Estate upon the terms of this Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly made by the Owner
Trustee, in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee unless it
is proved that the Owner Trustee was negligent in ascertaining the
pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken in good faith by it in accordance with the
provisions of this Agreement at the instructions of the Administrator, the
Depositor, the Indenture Trustee, the Servicer or the Certificateholders;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers hereunder or
under any other Basic Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or provided to
it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any Basic Document, including
the principal of and interest on the Notes or payments to the
Certificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the 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 signature and the certificate of authentication of the Owner
Trustee on the Certificates, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Noteholder or
Certificateholder, other than as expressly provided for in the Basic
Documents;
(f) the Owner Trustee shall not be liable for the default,
negligence or misconduct of the Administrator, the Depositor, any
Certificateholder, the Indenture Trustee, the Servicer or the Seller under
any Basic Document or otherwise, and the
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Owner Trustee shall have no obligation or liability to perform the
obligations of the Issuer under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the Indenture
or the Seller, the Servicer or the Depositor under the Sale and Servicing
Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Basic Document, at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby, the right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or
in any other Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable other than for its negligence, bad
faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable other
than for its willful misconduct, bad faith or negligence in the
performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy
of any information provided to Certificateholders or any other individual
or entity that has been obtained from, or provided to the Owner Trustee
by, any other Person;
(j) in the absence of negligence or bad faith on its part, the Owner
Trustee may conclusively rely upon certificates or Opinions of Counsel
furnished to the Owner Trustee and conforming to the requirements of this
Agreement in determining the truthfulness of the statements and the
correctness of the opinions contained therein; provided, however, that the
Owner Trustee shall have examined such certificates or Opinions of Counsel
so as to determine compliance of the same with the requirements of this
Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or by any
force majeure event, including natural disaster, war or other
circumstances beyond its reasonable control, the Owner Trustee shall be
prevented from doing or performing any act or thing which the terms of
this Agreement provide shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any directions provided for
herein.
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.
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Section 7.03. Representations and Warranties. The Owner Trustee, in its
individual capacity, hereby represents and warrants to the Depositor for the
benefit of the Certificateholders, that:
(a) it is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
meets the eligibility criteria set forth in Section 10.01;
(b) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) 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; and
(d) neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby, nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment
or order binding on it, constitute any default under its charter documents
or bylaws or any indenture, mortgage, contract, agreement or instrument to
which it is a party or by which any of its properties may be bound or
result in the creation or imposition of any lien, charge or encumbrance on
the Owner Trust Estate pursuant to the provisions of any mortgage,
indenture, contract, agreement or undertaking to which it is a party
(other than the Basic Documents), which lien, charge or encumbrance could
reasonably be expected to have a materially adverse effect on the Owner
Trustee's performance or ability to perform its duties as trustee under
this Agreement or on the transactions contemplated in this Agreement.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee may rely upon, shall be protected in relying upon
and 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 believed by it to be genuine and believed by it to be
signed by the proper party or parties and need not investigate any fact or
matter in any such document as long as the Owner Trustee has otherwise satisfied
its obligations under this Agreement (nothing in this sentence shall be
construed to relieve the Owner Trustee of any obligation it may have in this
Agreement, including the obligations set forth in Section 7.01). The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any Vice President or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
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(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee may (i) act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care and (ii) consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this Agreement or
any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as otherwise
provided in this Article, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and the certificate of authentication of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor, and the Owner Trustee assumes
no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Basic Document, the Certificates (other than the signature and the certificate
of authentication of the Owner Trustee on the Certificates and the
representations and warranties in Section 7.03) or the Notes, or of any
Receivable or related documents. The Owner Trustee shall at no 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 the Certificateholders under this Agreement or to the Noteholders under the
Indenture, including 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 Issuer or of
any intervening assignment; the completeness of any Receivable; the performance
or enforcement of any Receivable; the compliance by the Depositor, the Seller 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 taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become a Certificateholder
or Noteholder or pledgee of Certificates or Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee, the Seller and the Servicer
in banking transactions with the same rights as it would have if it were not
Owner Trustee.
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Section 7.08. Paying Agent; Authenticating Agent. The rights and
protections afforded to the Owner Trustee pursuant to this Article and Sections
8.02, 10.02 and 10.03 shall also be afforded to each Paying Agent, any
authenticating agent and the Certificate Registrar.
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Servicer and the Owner
Trustee, and upon the formation of the Issuer, the Owner Trustee shall be
entitled to be reimbursed, except as otherwise provided in the Basic Documents,
by the Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 8.02. Indemnification. The initial Servicer shall be liable as
prime obligor for, and shall indemnify the Indemnified Parties from and against,
any and all Expenses, which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, the other Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee hereunder; provided, however, that the initial
Servicer 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 the third sentence of Section 7.01. In no event will the initial Servicer or
the Owner Trustee be entitled to make any claim upon the Owner Trust Estate for
the payment or reimbursement of any Expenses. The indemnities contained in this
Section shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Owner Trustee's
choice of legal counsel shall be subject to the approval of the initial
Servicer, which approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article shall be deemed not to be a part of the Owner
Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Article Eight) shall
terminate and be of no further force or effect and the Issuer shall dissolve
upon the earlier of (i) the payment to the Servicer, the Paying Agent, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Certificateholders of
all amounts required to be paid to them pursuant to the terms of the Indenture,
the Sale and Servicing Agreement and Article Five, (ii) the Distribution Date
next succeeding the month which is one year after the maturity or other
liquidation of the last Receivable and the disposition of any amounts received
upon liquidation of any property remaining in the Issuer or (iii) upon the
purchase of the Receivables by the Servicer in connection with an Optional
Purchase and retirement of the Notes and Certificates. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(i) operate to terminate this Agreement or the Issuer, (ii) 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 Issuer or the Owner Trust Estate or (iii) 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 Issuer.
(c) Notice of any termination of the Issuer, specifying the Distribution
Date upon which Certificateholders shall surrender their 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 notice of such termination from the Servicer,
stating (i) the Distribution Date upon or with respect to which final payment of
the Certificates shall be made upon presentation and surrender of the
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 Distribution Date is not applicable and that payments are
being made only upon presentation and surrender of the Certificates 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 Certificates, the Paying Agent shall cause to
be distributed to Certificateholders, subject to Section 3808 of the Statutory
Trust Statute, amounts distributable on such Distribution Date pursuant to
Section 5.02.
(d) In the event that all of the Certificateholders shall not surrender
their 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
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the 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 Certificates and
the cost thereof shall be paid out of the funds and other assets that shall
remain
31
subject to this Agreement. Subject to applicable escheat laws, any funds
remaining in the Issuer after exhaustion of such remedies shall be distributed
by the Owner Trustee to the Seller, as Certificateholder.
(e) Upon the winding up of the Issuer, in accordance with Section 3808 of
the Statutory Trust Statute, and its termination, the Owner Trustee, acting
pursuant to the written instructions of the Depositor, which instructions shall
certify that the winding up of the Issuer has been duly completed in accordance
with this Article, shall cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of State in accordance
with the provisions of Section 3810(d) of the Statutory Trust Statute.
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ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times (i) be authorized to exercise corporate trust powers,
(ii) have a combined capital and surplus of at least $50,000,000 and be subject
to supervision or examination by federal or State authorities and (iii) have (or
have a parent that has) a long-term debt rating of investment grade by each of
the Rating Agencies or otherwise be acceptable to each of the Rating Agencies.
If such entity shall publish reports of condition at least annually pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrator and the Depositor. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee acceptable to the Depositor by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with Section 10.01 and shall fail to resign after written request therefor by
the Administrator, or if at any time the Owner Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or the Owner Trustee
shall otherwise become incapable of acting, then the Administrator may remove
the Owner Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee acceptable to the Depositor by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the successor
Owner Trustee, and shall pay all fees and expenses owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency, the
Depositor, the Certificateholders and the Indenture Trustee.
33
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon, subject to the payment of
all fees and expenses owed to the predecessor Owner Trustee, the resignation or
removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement and the Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Any successor Owner Trustee appointed pursuant to this Section shall file
an amendment to the Certificate of Trust with the Secretary of State reflecting
the name and principal place of business of such successor in the State of
Delaware.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
Section 10.04. Merger or Consolidation of Owner Trustee.
(a) If the Owner Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another entity, the resulting, surviving or transferee corporation or banking
association without any further act, except the filing of an amendment to the
Certificate of Trust, if required under the Statutory Trust Statute, shall be
the successor Owner Trustee; provided, however, that such corporation or banking
association must be otherwise qualified and eligible under Section 10.01. The
Owner Trustee shall provide the Rating Agencies with written notice as soon as
practicable after a public announcement is made regarding any such transaction.
(b) If any of the Certificates shall have been authenticated but not
delivered at the time such successor or successors by consolidation, merger or
conversion to the Owner Trustee shall succeed to the trusts created by this
Agreement, any such successor to the Owner Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Certificates so
authenticated. If any of the Certificates shall not have been authenticated upon
such succession, any such successor to the Owner Trustee may authenticate such
Certificates either in the name of any predecessor trustee or in the name of the
successor to the Owner
34
Trustee. In all such cases such certificates shall have the full force which
the Certificates or this Agreement provide that the certificate of the Owner
Trustee shall have.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement 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
and for the benefit of the Certificateholders, such title to the Owner Trust
Estate 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, except that such co-trustee or successor trustee shall have
the Required Rating or otherwise be acceptable to each Rating Agency, 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:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred or imposed 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.
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
35
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.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time by the Depositor and
the Owner Trustee with prior written notice to the Rating Agencies, without the
consent of any of the Noteholders or the Certificateholders, to cure any
ambiguity, to correct or supplement any provision herein that may be
inconsistent with any other provision herein or in any offering document used in
connection with the initial offer and sale of the Notes or the Certificates or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement which will not be
inconsistent with other provisions of this Agreement; provided, however, that no
such amendment (i) may materially adversely affect the interests of any
Noteholder or Certificateholder and (ii) will be permitted unless an Opinion of
Counsel is delivered to the Owner Trustee to the effect that such amendment will
not cause the Issuer to be characterized for federal income tax purposes as an
association or publicly-traded partnership taxable as a corporation or otherwise
have any material adverse impact on the federal income taxation of any Notes
Outstanding or outstanding Certificates.
(b) This Agreement may be amended from time to time by the Depositor and
the Owner Trustee with prior written notice to the Rating Agencies and with the
consent of the Noteholders of Notes evidencing not less than 51% of the Note
Balance or, if the Notes have been paid in full, the Certificateholders
evidencing not less than 51% of the aggregate Certificate Percentage Interest,
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Agreement or modifying in any manner
the rights of the Noteholders or the Certificateholders; provided, however, that
no such amendment will be permitted unless an Opinion of Counsel is delivered to
the Owner Trustee to the effect that such amendment will not cause the Issuer to
be characterized for federal income tax purposes as an association or a publicly
traded partnership taxable as a corporation or otherwise have any material
adverse impact on the federal income taxation of any Notes Outstanding or
outstanding Certificates; and, provided further, that no such amendment may:
(i) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, or change the allocation or priority of, collections
of payments on or in respect of the Receivables or distributions that are
required to be made for the benefit of the Noteholders or the
Certificateholders without the consent of all Noteholders and
Certificateholders adversely affected by such amendment;
(ii) reduce the percentage of the Note Balance or the percentage of
the aggregate Certificate Percentage Interest the consent of the
Noteholders or Certificateholders, as applicable, of which is required for
any amendment to this Agreement without the consent of all the Noteholders
and Certificateholders adversely affected by the amendment; or
37
(iii) adversely affect the rating assigned by either Rating Agency
to any Class of Notes without the consent of the Noteholders evidencing
not less than 66 2/3% of the Note Balance of such Class of Notes.
(c) An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if (i) the
Person requesting such amendment obtains and delivers to the Owner Trustee an
Opinion of Counsel to that effect or (ii) the Rating Agency Condition is
satisfied.
(d) 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 and the Depositor shall furnish
written notice of the substance of such amendment or consent to the Indenture
Trustee and the Rating Agencies.
(e) It shall not be necessary for the consent of the Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of 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.
(f) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall file such amendment or cause such amendment to be
filed with the Secretary of State.
(g) The Owner Trustee may, but shall not be obligated to, enter into any
such amendment that affects the Owner Trustee's own rights, duties, liabilities
or immunities under this Agreement or otherwise.
(h) Prior to the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Issuer is a party, the Owner
Trustee shall be entitled to receive and shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent in
this Agreement to the execution and delivery of such amendment have been
satisfied.
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 beneficial interest therein only in accordance with
Articles Five and Nine. No transfer, by operation of law or otherwise, of any
right, title or interest of the Certificateholders to and in their beneficial
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. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Indemnified
Parties, the Depositor, the Certificateholders, the Administrator, the Servicer
and, to the extent expressly provided herein,
38
the Indenture Trustee and the Noteholders, and nothing in this Agreement or in
the Certificates, 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. All demands, notices and other communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, or where electronic delivery is applicable and requested, shall be
delivered by electronic delivery, and shall be deemed to have been duly given
upon receipt in the case of (i) the Owner Trustee, at the Corporate Trust
Office, (ii) the Depositor, at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx X, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Treasury ABS
Department, (iii) the Indenture Trustee, at the Corporate Trust Office (as
defined in the Indenture), (iv) Moody's, to Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (e-mail:
Xxxxxxxx_xxxxxxx@xxxxxx.xxx), (v) Standard & Poor's, to Standard & Poor's
Ratings Services, a Division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
Department (e-mail: Xxxxxxxx_xxxxxxx@xxxxx.xxx) or (vi) as to each of the
foregoing, at such other address as shall be designated by written notice to the
other entities whose addresses are listed in this Section. Any notice required
or permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder 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 shall receive such notice.
Section 11.05. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement or the Certificates shall be
for any reason whatsoever held invalid, illegal or unenforceable, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and the
Certificates and shall in no way affect or impair the validity or enforceability
of the other covenants, agreements, provisions and terms of this Agreement or of
the Certificates or the rights of the Certificateholders.
Section 11.06. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein and in the Certificates shall be binding upon, and inure to the
benefit of, each of the Depositor, the Owner Trustee, and each Certificateholder
and their respective 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. The Depositor shall not at any
time institute against the Issuer, or join in any institution against the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United
39
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
Section 11.09. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate or a beneficial interest therein,
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 Issuer, or join in any institution against the
Depositor or the Issuer 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 Certificates, the Notes, this Agreement or any other
Basic Document.
Section 11.10. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that the Certificates represent beneficial interests in
the Issuer only and do not represent interests in or obligations of the
Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee, the
Indenture Trustee or any of their respective Affiliates and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated in the Certificates, this Agreement or any other Basic Document.
Section 11.11. Headings. The Article and Section headings and the Table of
Contents herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.13. Servicer Payment Obligation. The Servicer shall be
responsible for the payment of all fees and expenses of the Issuer, the Owner
Trustee and the Indenture Trustee paid by any of them in connection with any of
their obligations under the Basic Documents to obtain or maintain or cause to be
obtained or maintained any required license under the (i) Maryland Vehicle Sales
Finance Act or (ii) Pennsylvania Motor Vehicle Sales Finance Act.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers, thereunto duly authorized, as of the
day and year first above written.
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
/s/ Xxxxx X. Xxxxxx
By:
----------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner
Trustee
/s/ Xxxx Xxx Xxxxxxx
By:
----------------------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
THIS ASSET BACKED CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
NOTES TO THE EXTENT DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING
AGREEMENT AND THE INDENTURE REFERRED TO HEREIN.
THIS ASSET BACKED CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
THIS ASSET BACKED CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN
OBLIGATION OF POOLED AUTO SECURITIES SHELF LLC, WACHOVIA BANK, NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
THIS ASSET BACKED CERTIFICATE MAY NOT BE ACQUIRED BY OR WITH PLAN ASSETS
OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
REGISTERED NO. R-1
WACHOVIA AUTO OWNER TRUST 2005-B
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of Wachovia Auto Owner
Trust 2005-B, a Delaware statutory trust (the "Issuer"), which property
includes a pool of retail installment sale contracts secured by new and
used motor vehicles sold by Wachovia Bank, National Association, a
national banking association ("Wachovia Bank"), to Pooled Auto Securities
Shelf LLC, a Delaware limited liability company (the "Depositor"), and
sold by the Depositor to the Issuer. The property of the Issuer (other
than the Certificate Payment Account and the proceeds thereof) has been
pledged by the Issuer to U.S. Bank National Association, a national
banking association, as trustee (the "Indenture Trustee"), pursuant to an
indenture, dated as of December 1, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"),
between the Issuer and the Indenture Trustee, to secure the payment of the
Notes issued thereunder.
This certifies that PASS HOLDING LLC is the registered owner of a 100%
Certificate Percentage Interest nonassessable, fully paid, beneficial interest
in the Issuer. The Issuer was created pursuant to a trust agreement dated June
17, 2005 between the Depositor and Wilmington Trust Company, as trustee (in such
capacity, and not in its individual capacity, the "Owner Trustee"), and as
amended and restated by the amended and restated trust agreement, dated as of
December 1, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the "Trust Agreement"), between the Depositor and the Owner
Trustee, a summary of certain of the pertinent provisions of which is set forth
below. Capitalized terms used herein
A-1
that are not otherwise defined shall have the meanings ascribed in the Trust
Agreement, the Indenture or in the sale and servicing agreement, dated as of
December 1, 2005 (as amended, restated, supplemented or otherwise modified
from time to time, the "Sale and Servicing Agreement"), among the Issuer, the
Depositor and Wachovia Bank, as seller (in such capacity, the "Seller") and
servicer (in such capacity, the "Servicer").
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the registered
holder of this Certificate (the "Certificateholder") by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The property of the
Issuer primarily includes: (i) a pool of retail installment sale contracts
originated in connection with the sale of new or used motor vehicles (the
"Receivables"), (ii) all amounts received on or in respect of the Receivables
after the Cutoff Date, (iii) the security interests in the Financed Vehicles
granted by the Obligors pursuant to the Receivables and (iv) all proceeds of the
foregoing.
THE RIGHTS OF THE ISSUER IN THE FOREGOING PROPERTY OF THE ISSUER (OTHER
THAN THE CERTIFICATE PAYMENT ACCOUNT AND THE PROCEEDS THEREOF) HAVE BEEN PLEDGED
TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Pursuant to the Trust Agreement, there will be distributed on each
Distribution Date to the Person in whose name this Certificate is registered at
the close of business on the Business Day preceding such Distribution Date such
Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such Distribution Date. "Distribution Date"
means the 20th day of each month or, if such 20th day is not a Business Day, the
following Business Day, commencing on January 20, 2006.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO
RECEIVE DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARE SUBORDINATED TO THE
RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND
SERVICING AGREEMENT AND THE INDENTURE.
It is the intent of the Depositor, the Seller, the Servicer and the
Certificateholders that, for purposes of federal income taxes, State and local
income taxes and any other income taxes the Issuer will be treated as either an
entity that is disregarded as separate from the beneficial owner of the equity
in the Issuer if there is only one such owner, or as a partnership (other than
an association or publicly traded partnership) if there are two or more such
owners. The Depositor and any other Certificateholders, by acceptance of a
Certificate, agree with the foregoing characterization of the Certificates for
such tax purposes and further agree to take no action inconsistent therewith.
Each Certificateholder, by its acceptance of a Certificate or a beneficial
interest therein, covenants and agrees that such Certificateholder will not at
any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer 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
A-2
with any obligations relating to the Notes, the Certificates, the Trust
Agreement or any other Basic Document.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this 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 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 Certificate at the office or agency of the Certificate
Registrar maintained for that purpose in Wilmington, Delaware.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if fully set forth on the face of this Certificate.
Unless the certificate of authentication hereon has been executed by an
authorized officer of the Owner Trustee, by manual signature, this 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 CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in
its individual capacity, has caused this Certificate to be duly executed as of
the date set forth below.
Dated: December 8, 2005 WACHOVIA AUTO OWNER TRUST 2005-B,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
Dated: December 8, 2005 WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
-----------------------------------
Name:
Title:
A-4
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an interest in,
the Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee or
any of their respective Affiliates, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
herein, in the Trust Agreement or in the other Basic Documents. In addition,
this Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Indenture and the Sale and Servicing Agreement.
The Trust Agreement permits the Depositor and the Owner Trustee, on behalf
of the Issuer, with certain exceptions therein provided, to amend from time to
time certain terms and conditions set forth in the Trust Agreement without the
consent of the Certificateholders. The Trust Agreement also permits the
Depositor and the Owner Trustee, on behalf of the Issuer, with certain
exceptions as therein provided, to amend certain terms and conditions set forth
in the Trust Agreement with the consent of the Noteholders evidencing not less
than 51% of the Note Balance and the Certificateholders evidencing not less than
51% of the aggregate Certificate Percentage Interest. Any such consent by the
Certificateholder shall be conclusive and binding on such Certificateholder and
on all future Certificateholders and of any Certificate issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate may be registered in the
Certificate Register upon surrender of this Certificate for registration of
Transfer at the Corporate Trust Office and a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates in any
authorized denomination and in the same aggregate Certificate Percentage
Interest in the Issuer will be issued to the designated transferee or
transferees. No service charge shall be made for any registration of Transfer or
exchange of 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 therewith. The initial Certificate Registrar
appointed under the Trust Agreement is the Owner Trustee.
Each Certificateholder, by its acceptance of a Certificate, shall be
deemed to have represented and warranted that such Certificateholder is not an
(i) employee benefit plan or arrangement subject to Title I of ERISA or a plan
subject to Section 4975 of the Code (a "Benefit Plan"), nor a person acting on
behalf of a Benefit Plan nor using the assets of a Benefit Plan to effect the
transfer of such Certificate, or (ii) insurance company purchasing a Certificate
with funds contained in an "insurance company general account" (as defined in
Section V(e) of PTCE 95-60) that includes the assets of a Benefit Plan for
purposes of the Plan Asset Regulation.
Any Person who is not an Affiliate of the Seller and acquires more than
49.9% of the Certificates will be deemed to represent that it is not a party in
interest (within the meaning of ERISA) or a disqualified person (within the
meaning of Section 4975(e)(2) of the Code) with respect to any Benefit Plan,
other than a Benefit Plan that it sponsors for the benefit of its
A-5
employees, and that no Benefit Plan with respect to which it is a party in
interest has or will acquire any interest in the Notes.
The Certificates are issuable only in registered form in denominations as
provided in the Trust Agreement, subject to certain limitations therein set
forth.
The Owner Trustee, the Certificate Registrar and any Paying Agent may
treat the Person in whose name this Certificate is registered in the Certificate
Register (as of the day of determination) as the owner of this Certificate for
the purpose of receiving distributions pursuant to the Trust Agreement 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.
The Trust Agreement, with certain exceptions therein provided, and the
Issuer shall terminate and be of no further force or effect upon the earlier of
(i) the payment to the Servicer, the Noteholders and the Certificateholders of
all amounts required to be paid to them pursuant to the terms of the Indenture,
the Sale and Servicing Agreement and the Trust Agreement, (ii) the Distribution
Date next succeeding the month which is one year after the maturity or other
liquidation of the last Receivable and the disposition of any amounts received
upon liquidation of any property remaining in the Issuer and (iii) upon the
purchase of the Receivables by the Servicer in connection with an Optional
Purchase.
A-6
ASSIGNMENT
SOCIAL SECURITY NUMBER
OR OTHER IDENTIFICATION
NUMBER OF ASSIGNEE:
-------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
-------------------------------------------------------------------------
-----------------------------------------------------------------------------
(name and address of assignee)
the within Certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ________________________, attorney, to transfer said
Certificate on the Certificate Register, with full power of substitution in the
premises.
Dated:
*/
----------------------------------------
Signature Guaranteed:
*/
----------------------------------------
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate
in every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Certificate Registrar.
A-7
EXHIBIT B
CERTIFICATE OF TRUST OF
WACHOVIA AUTO OWNER TRUST 2005-B
This Certificate of Trust of Wachovia Auto Owner Trust 2005-B (the
"Trust"), is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, as trustee (the "Trustee"), to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. Code, ss. 3801 et seq.)
(the "Act").
1. Name. The name of the statutory trust formed hereby is Wachovia Auto
Owner Trust 2005-B.
2. Delaware Trustee. The name and business address of a trustee of the
Trust having its principal place of business in the State of Delaware is
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust in accordance with Section 3811 of the
Act.
WILMINGTON TRUST COMPANY,
as Trustee
By:
------------------------
Name:
Title:
B-1
