EXHIBIT 4.1
EXECUTION COPY
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AMENDED AND RESTATED
TRUST AGREEMENT
between
WFS RECEIVABLES CORPORATION 3,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Owner Trustee
Dated as of August 15, 2002
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms......................................................... 1
Section 1.02. Other Definitional Provisions............................................. 4
Section 1.03. Usage of Terms............................................................ 4
Section 1.04. Section References........................................................ 4
Section 1.05. Accounting Terms.......................................................... 4
ARTICLE TWO
ORGANIZATION
Section 2.01. Name...................................................................... 5
Section 2.02. Office.................................................................... 5
Section 2.03. Purposes and Powers....................................................... 5
Section 2.04. Appointment of Owner Trustee.............................................. 6
Section 2.05. Initial Capital Contribution of Owner Trust Estate........................ 6
Section 2.06. Declaration of Trust...................................................... 6
Section 2.07. Title to Trust Property................................................... 6
Section 2.08. Situs of Trust............................................................ 6
Section 2.09. Representations and Warranties of the Depositor........................... 7
Section 2.10. Federal Income Tax Allocations............................................ 8
ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership......................................................... 9
Section 3.02. The Trust Certificates.................................................... 9
Section 3.03. Authentication and Delivery of Trust Certificates......................... 9
Section 3.04. Registration of Transfer and Exchange of Trust Certificates............... 9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates................... 11
Section 3.06. Persons Deemed Owners..................................................... 12
Section 3.07. Access to List of Certificateholders' Names and Addresses................. 12
Section 3.08. Maintenance of Office or Agency........................................... 12
Section 3.09. Appointment of Paying Agent............................................... 12
Section 3.10. Ownership by WFSRC3 of Trust Certificates................................. 13
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners with Respect to Certain Matters.................... 14
Section 4.02. Action by Owners with Respect to Certain Matters.......................... 14
Section 4.03. Action by Owners with Respect to Bankruptcy............................... 15
Section 4.04. Restrictions on Owners' Power............................................. 15
Section 4.05. Majority Control.......................................................... 15
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account............................................ 16
Section 5.02. Application of Trust Funds................................................ 16
Section 5.03. Method of Payment......................................................... 17
Section 5.04. No Segregation of Monies; No Interest..................................... 17
Section 5.05. Accounting and Reports to the Noteholders, Owners, the Internal Revenue
Service and Others........................................................ 17
Section 5.06. Signature on Returns; Tax Matters......................................... 17
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority......................................................... 18
Section 6.02. General Duties............................................................ 18
Section 6.03. Action Upon Instruction................................................... 18
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions........ 19
Section 6.05. No Action Except Under Specified Documents or Instructions................ 19
Section 6.06. Restrictions.............................................................. 19
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties........................................... 21
Section 7.02. Furnishing of Documents................................................... 22
Section 7.03. Representations and Warranties............................................ 22
Section 7.04. Reliance; Advice of Counsel............................................... 22
Section 7.05. Not Acting in Individual Capacity......................................... 23
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Section 7.06. Owner Trustee Not Liable for Trust Certificates, Notes or Contracts....... 23
Section 7.07. Owner Trustee May Own Trust Certificates and Notes........................ 24
Section 7.08. Pennsylvania Motor Vehicle Sales Finance Act Licenses..................... 24
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses......................................... 25
Section 8.02. Indemnification........................................................... 25
Section 8.03. Payments to the Owner Trustee............................................. 25
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement............................................ 26
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee............................... 28
Section 10.02. Resignation or Removal of Owner Trustee.................................. 28
Section 10.03. Successor Owner Trustee.................................................. 28
Section 10.04. Merger or Consolidation of Owner Trustee................................. 29
Section 10.05. Appointment of Co-Trustee or Separate Trustee............................ 29
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments............................................... 31
Section 11.02. No Legal Title to Trust Estate in Owners................................. 32
Section 11.03. Limitations on Rights of Others.......................................... 32
Section 11.04. Notices.................................................................. 32
Section 11.05. Severability of Provisions............................................... 32
Section 11.06. Counterparts............................................................. 33
Section 11.07. Successors and Assigns................................................... 33
Section 11.08. No Petition.............................................................. 33
Section 11.09. No Recourse.............................................................. 33
Section 11.10. Certificates Nonassessable and Fully Paid................................ 33
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Section 11.11. Headings................................................................. 33
Section 11.12. Governing Law............................................................ 33
Section 11.13. Depositor Payment Obligation............................................. 34
Section 11.14. Limited Recourse......................................................... 34
EXHIBITS
Exhibit A - Form of Certificate of Trust................................................. A-1
Exhibit B - Form of Trust Certificate.................................................... B-1
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This AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 15, 2002,
is between WFS RECEIVABLES CORPORATION 3, a California corporation (the
"Depositor"), and CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Owner Trustee").
WHEREAS, in connection herewith, the Depositor is willing to create a
trust and assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Administration Agreement" means the administration agreement, dated as
of August 1, 2002, among the Trust, the Depositor, the Indenture Trustee and
WFS, as Administrator.
"Administrator" means WFS, a California corporation, as set forth in the
Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement, as the same
may be amended and supplemented from time to time.
"Applicants" shall have the meaning assigned to such term in Section
3.07.
"Basic Documents" has the meaning set forth in the Indenture.
"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 Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.
"Certificate Distribution Account" means the account established and
maintained as such pursuant to Section 5.01.
"Certificate of Trust" means the Certificate of Trust filed for the
Trust pursuant to Section 3810(a) of the Business Trust Statute, substantially
in the form of Exhibit A hereto.
"Certificate Percentage Interest" has the meaning set forth in the Sale
and Servicing Agreement.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
"Certificateholder" or "Holder" means the Person in whose name a Trust
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement or the other Basic Documents, the interest evidenced by any Trust
Certificate registered in the name of the Depositor, WFS, or any of their
respective Affiliates shall not be taken into account in determining whether the
requisite percentage necessary to effect such consent, waiver, request or demand
in respect of the Trust Certificates shall have been obtained.
"Closing Date" means August 15, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, and Treasury
Regulations promulgated thereunder.
"Depositor" means WFSRC3 in its capacity as a depositor hereunder, and
its successors.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 8.02.
"Indenture" means the indenture dated as of August 1, 2002, between the
Trust and Deutsche Bank Trust Company Americas, as Indenture Trustee.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D
Notes, in each case issued pursuant to the Indenture.
"Optional Repurchase" has the meaning set forth in the Sale and
Servicing Agreement.
"Owner" means each Holder of a Trust Certificate.
"Owner Trustee" means Chase Manhattan Bank USA, National Association, a
national banking association, not in its individual capacity but solely as owner
trustee under this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be Chase Manhattan Bank USA, National Association, c/o XX Xxxxxx
Xxxxx, 000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0/0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000,
Attention: Institutional Trust Services, or such other office at such other
address as the Owner Trustee may designate from time to time by notice to the
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Certificateholders, the Master Servicer and the Depositor. The foregoing address
of XX Xxxxxx Chase Bank shall be its address for purposes of its acting as
Certificate Registrar and as agent of the Owner Trustee pursuant to Sections
3.04 and 3.08, or such other office at such other address as the Owner Trustee
may designate from time to time by notice to the Certificateholders, the Master
Servicer and the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.09.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Rating Agency" has the meaning set forth in the Sale and Servicing
Agreement.
"Record Date" means, with respect to any Distribution Date, the day
immediately preceding such Distribution Date.
"Retained Trust Certificate Percentage" has the meaning set forth in
Section 3.10.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of August 1, 2002, among the Trust, as Issuer, the Depositor, as
Seller, and WFS, as Master Servicer, as the same may be amended or supplemented
from time to time.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Seller" means WFSRC3, in its capacity as seller under the Sale and
Servicing Agreement, and its successors.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust established by this Agreement.
"Trust Certificates" means the trust certificates evidencing the
beneficial interest of an Owner in the Trust, substantially in the form of
Exhibit B hereto.
"Trust Estate" means all right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement.
"Underwriters" means Xxxxxxx Xxxxx Xxxxxx Inc., Banc of America
Securities LLC, Credit Suisse First Boston Corporation and Deutsche Bank
Securities Inc.
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"WFS" means WFS Financial Inc, and its successors.
"WFSRC3" means WFS Receivables Corporation 3, and its successors.
Section 1.02. Other Definitional Provisions. Capitalized terms used that
are not otherwise defined herein shall have the meanings ascribed thereto in the
Sale and Servicing Agreement or, if not defined therein, in the Indenture.
Section 1.03. Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation".
Section 1.04. Section References. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
Section 1.05. Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as "WFS
Financial 2002-3 Owner Trust", in which name the Owner Trustee may conduct the
activities of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Owners and the Depositor.
Section 2.03. Purposes and Powers.
(a) The sole purpose of the Trust is to conserve the Trust Estate and
collect and disburse the periodic income therefrom for the use and benefit of
the Owners, and in furtherance of such purpose to engage in the following
ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to purchase the
Contracts, to fund the Spread Account, to pay the organizational,
start-up and transactional expenses of the Trust and to pay the balance
to the Depositor pursuant to the Sale and Servicing Agreement;
(iii) to Grant the Trust Estate pursuant to the Indenture and to
hold, manage and distribute to the Owners pursuant to the Sale and
Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary to accomplish the foregoing or are
incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Estate and the making of distributions to the Owners and
the Noteholders.
(b) The Trust shall not engage in any activities other than in
connection with the foregoing. Nothing contained herein shall be deemed to
authorize the Owner Trustee, on behalf of the Trust, to engage in any business
operations or any activities other than those set forth in the introductory
sentence of this Section. Specifically, the Owner Trustee, on behalf of the
Trust, shall have no authority to engage in any business operations, acquire any
assets other than those specifically included in the Trust Estate under Section
1.01 or otherwise vary the assets
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held by the Trust. Similarly, the Owner Trustee shall have no discretionary
duties other than performing those ministerial acts set forth above necessary to
accomplish the purpose of the Trust as set forth in the introductory sentence of
this Section.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be deposited in the Certificate Distribution Account. The Depositor shall
pay the organizational expenses of the Trust as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Estate and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Owners, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a disregarded entity or a partnership, with equity
holders of such entity being the Certificateholders. It is also the intention of
the parties hereto that the Notes be treated as debt of the Trust. The parties
agree that, unless otherwise required by appropriate tax authorities, the Trust
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the foregoing characterization of the Trust for such
tax purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute for
the sole purpose and to the extent necessary to accomplish the purpose of the
Trust as set forth in the introductory sentence of Section 2.03. This Agreement
amends and restates in full the trust agreement executed by the parties to this
Agreement, dated as of August 5, 2002.
Section 2.07. Title to Trust Property. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of California, the State of
Delaware or the State of New York. The Trust shall not have any employees in any
state other than Delaware; provided, however, that nothing herein shall restrict
or prohibit the Owner Trustee from having employees within or without the State
of Delaware. Payments will be received by the Trust only in Delaware or New York
and
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payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Owner Trustee Corporate Trust Office.
Section 2.09. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the laws
of the State of California, with power and authority to own its
properties and to conduct its business and had at all relevant times,
and has, power, authority and legal right to acquire and own the
Contracts.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold and
assigned by such Depositor to and deposited with the Owner Trustee on
behalf of the Trust as part of the Trust Estate and has duly authorized
such sale and assignment and deposit with the Owner Trustee on behalf of
the Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in the breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of the properties of the Depositor pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or any order, rule
or regulation applicable to the Depositor of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) There are no proceedings or investigations pending, or to the
Depositor's best knowledge threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (A) asserting the
invalidity of this Agreement, any of the other Basic Documents or the
Trust Certificates, (B) seeking to prevent the issuance of the Trust
Certificates or the consummation of any of the transactions contemplated
by this Agreement or any of the other Basic Documents, (C) seeking any
determination or ruling that might 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
or the Trust Certificates or (D) involving the Depositor and which
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might adversely affect the federal income tax or other federal, state or
local tax attributes of the Trust Certificates.
Section 2.10. Federal Income Tax Allocations.
(a) Net income of the Trust for any calendar quarter as determined for
federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated among the
Certificateholders as of the first day following the end of such quarter, in
proportion to their Certificate Percentage Interest on such date, net income in
an amount up to the sum any other amounts of income payable to the
Certificateholders for such quarter.
(b) Net losses of the Trust, if any, for any calendar quarter as
determined for federal income tax purposes (and each item of income, gain, loss
and deduction entering into the computation thereof) shall be allocated to the
Certificateholders in proportion to their Certificate Percentage Interest as of
the first day following the end of such quarter in proportion to their
Certificate Percentage Interest on such day. The Certificateholders are
authorized to modify the allocations in this paragraph if necessary or
appropriate, in their sole discretion, for the allocations to fairly reflect the
income, gain, loss and deduction to the Certificateholders, or as otherwise
required by the Code.
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ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.05 and until the issuance of
the Trust Certificates, the Depositor shall be the sole beneficiary of the
Trust.
Section 3.02. The Trust Certificates. The Trust Certificates shall be
substantially in the form of Exhibit B hereto. The Trust Certificates shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and attested on behalf
of the Owner Trustee by the manual or facsimile signature of an authorized
officer of the Owner Trustee and shall be deemed to have been validly issued
when so executed. Trust Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Owner Trustee shall be valid and binding
obligations of the Trust, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the authentication and delivery of such
Trust Certificates or did not hold such offices at the date of such Trust
Certificates. All Trust Certificates shall be dated the date of their
authentication.
Section 3.03. Authentication and Delivery of Trust Certificates. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Depositor, in exchange for the Contracts and the other assets of the Trust,
simultaneously with the sale, assignment and transfer to the Trust of the
Contracts, and the constructive delivery to the Owner Trustee of the Contract
Files and the other assets of the Trust, Trust Certificates duly authenticated
by the Owner Trustee, evidencing the entire ownership of the Trust and Notes
issued by the Owner Trustee and authenticated by the Indenture Trustee in
aggregate principal amount of, in the case of the (i) Class A-1 Notes,
$225,000,000, (ii) Class A-2 Notes, $300,000,000, (iii) Class A-3 Notes,
$318,750,000, (iv) Class A-4 Notes, $278,125,000, (v) Class B Notes,
$56,250,000, (vi) Class C Notes, $50,000,000, (vii) Class D Notes, $21,875,000.
No Trust Certificate shall be entitled to any benefit under this Agreement, or
be valid for any purpose, unless there appears on such Trust Certificate a
certificate of authentication substantially in the form set forth in the form of
Trust Certificate attached hereto as Exhibit B, executed by the Owner Trustee or
its authenticating agent, by manual signature, and such certificate upon any
Trust Certificate shall be conclusive evidence, and the only evidence, that such
Trust Certificate has been duly authenticated and delivered hereunder. The
provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to any
authenticating agent hereunder. Upon issuance, authentication and delivery
pursuant to the terms hereof, the Trust Certificates will be entitled to the
benefits of this Agreement.
Section 3.04. Registration of Transfer and Exchange of Trust
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, a
Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of Trust
Certificates and transfers and exchanges of Trust Certificates as provided
herein. XX Xxxxxx Xxxxx Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Structured Finance Services (ABS) as agent for the Owner
Trustee, is hereby initially appointed Certificate Registrar for the purpose of
registering Trust Certificates
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and transfers and exchanges of Trust Certificates as herein provided. In the
event that, subsequent to the Closing Date, the Owner Trustee notifies the
Master Servicer that XX Xxxxxx Chase Bank is unable to act as Certificate
Registrar, the Master Servicer shall appoint another bank or trust company,
having an office or agency located in The City of New York, agreeing to act in
accordance with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to
any Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of any Trust Certificate
at the office of the Certificate Registrar, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Trust Certificates of a like Certificate Percentage
Interest.
(c) At the option of a Certificateholder, Trust Certificates may be
exchanged for other Trust Certificates of a like Certificate Percentage
Interest, upon surrender of the Trust Certificates to be exchanged at the office
of the Certificate Registrar. Whenever any Trust Certificates are so surrendered
for exchange, the Owner Trustee on behalf of the Trust shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver) the Trust Certificates that the Certificateholder
making the exchange is entitled to receive. Every Trust Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Trust Certificates.
(e) The Trust Certificates may not be acquired by or for the account of
a Benefit Plan. By accepting and holding a Trust Certificate or a beneficial
interest therein, the Certificateholder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan nor will it hold such
Trust Certificate or a beneficial interest therein for the account of a Benefit
Plan.
Any person who is not an affiliate of the Seller and acquires more than
49.9% of the Trust 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 plan with respect to which it is a party in interest has or will acquire
any interest in the Notes.
(f) All Trust Certificates surrendered for registration of transfer or
exchange, if surrendered any agent of the Owner Trustee 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
Trust Certificates shall be issued in lieu thereof except as
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expressly permitted by any of the provisions of this Agreement. The Owner
Trustee shall dispose of cancelled Trust Certificates in accordance with the
normal industry practice.
(g) As a condition to the registration of any transfer of a Trust
Certificate, the prospective transferee shall be required to represent in
writing to the Owner Trustee, the Seller and the Certificate Registrar the
following:
(i) It has neither acquired nor will it transfer any Trust
Certificate it purchases (or any interest therein) or cause any such
Trust Certificates (or any interest therein) to be marketed on or
through an "established securities market" within the meaning of Section
7704(b)(1) of the Code, including, without limitation, an
over-the-counter-market or an interdealer quotation system that
regularly disseminates firm buy or sell quotations.
(ii) It either (A) is not, and will not become, a partnership,
Subchapter S corporation or grantor trust for U.S. federal income tax
purposes or (B) is such an entity, but none of the direct or indirect
beneficial owners of any of the interests in such transferee have
allowed or caused, or will allow or cause, 50% or more (or such other
percentage as the Transferor may establish prior to the time of such
proposed transfer) of the value of such interests to be attributable to
such transferee's ownership of Trust Certificates.
(iii) It is not a Benefit Plan nor will it hold the Trust
Certificates being transferred for the account of a Benefit Plan.
The provisions of this Section generally are intended, among other
things, to prevent the Trust from being characterized as a "publicly traded
partnership" within the meaning of Section 7704 of the Code, in reliance on
Treasury Regulations Section 1.7704-1(e) and (h), and the Seller shall take such
intent into account in determining whether or not to consent to any proposed
transfer of any Trust Certificate.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates.
If (i) any mutilated Trust Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Trust 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 Trust Certificate has been acquired by a protected
purchaser, the Owner Trustee on behalf of the Trust 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 Trust
Certificate, a new Trust Certificate of like tenor and Certificate Percentage
Interest. In connection with the issuance of any new Trust Certificate under
this Section, the Owner Trustee may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
11
Section 3.06. Persons Deemed Owners. Prior to due presentation of a
Trust 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 any Trust Certificate is registered as the owner
of such Trust Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar, any Paying Agent or any of their respective
agents shall be affected by any notice to the contrary.
Section 3.07. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Master Servicer
and the Depositor, within 15 days after receipt by the Certificate Registrar of
a written request therefor from the Master Servicer, the Certificateholders or
the Depositor, a list, in such form as the Master Servicer or the Depositor may
reasonably require, of the names and addresses of the Certificateholders as of
the most recent Record Date. If three or more Certificateholders, or one or more
Holders of Trust Certificates evidencing not less than 25% of the percentage
interests of the Trust Certificates (hereinafter referred to as "Applicants"),
apply in writing to the Owner Trustee, and such application states that the
Applicants desire to communicate with other Certificateholders with respect to
their rights hereunder or under the Trust Certificates and such application is
accompanied by a copy of the communication that such Applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such Applicants access, during normal
business hours, to the current list of Certificateholders. Every
Certificateholder, by receiving and holding a Trust Certificate, agrees with the
Master Servicer, the Depositor and the Owner Trustee that none of the Master
Servicer, the Depositor or the Owner Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 3.08. Maintenance of Office or Agency. XX Xxxxxx Xxxxx Bank, as
agent for the Owner Trustee, shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where Trust
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Owner Trustee in respect of the Trust
Certificates and the Basic Documents may be served. The Owner Trustee hereby
designates the office of XX Xxxxxx Chase Bank at the address provided under the
definition of the term "Owner Trustee Corporate Trust Office" as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Master Servicer and to Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution 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 Distribution 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 initially shall
be Western Financial Bank and any co-paying agent chosen by the Paying Agent
that is acceptable to the Owner Trustee. Each Paying Agent
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shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Owner Trustee. In the event that Western Financial Bank shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. If the long term debt rating of the Paying Agent shall not be at
least Baa3 from Xxxxx'x and BBB- from Standard & Poor's, the Rating Agencies
shall be given notice of such lower long term debt rating.
Section 3.10. Ownership by WFSRC3 of Trust Certificates. WFSRC3 shall on
the Closing Date retain Trust Certificates representing at least 100% of the
Certificate Percentage Interest and shall thereafter retain beneficial and
record ownership of Trust Certificates representing at least 1% of the
Certificate Percentage Interest (the "Retained Trust Certificate Percentage").
Any attempted transfer of any Trust Certificate that would reduce the interest
of WFSRC3 in the Trust below the Retained Trust Certificate Percentage shall be
void. The Owner Trustee shall cause any Trust Certificate issued to WFSRC3 on
the Closing Date (and any Trust Certificate issued in exchange therefor) to
contain a legend stating "THIS TRUST CERTIFICATE IS NON-TRANSFERABLE EXCEPT AS
PROVIDED IN SECTION 3.10 OF THE TRUST AGREEMENT".
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owners 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 in writing of the proposed action and the Holders of Trust
Certificates evidencing at least a majority 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 Holders have withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit brought by
or against the Trust (except with respect to the aforementioned claims
or lawsuits for collection of the Contracts);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and
such amendment materially adversely affects the interest of the Owners;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Owners; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, paying agent for the Notes 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 obligations under the Indenture or this
Agreement, as applicable.
Section 4.02. Action by Owners with Respect to Certain Matters. Subject
to the provisions and limitations of Section 4.04, the Owner Trustee shall not
have the power, except upon the direction of the Owners, to (i) remove the
Administrator pursuant to Section 8 of the Administration Agreement, (ii)
appoint a successor Administrator pursuant to Section 8 of the Administration
Agreement, (iii) remove the Master Servicer pursuant to Section 8.01 of the Sale
and Servicing Agreement, (iv) except as expressly provided in the Basic
Documents, sell the Contracts after the termination of the Indenture, (v)
initiate any claim, suit or proceeding by the Trust or compromise any claim,
suit or proceeding brought by or against the Trust, (vi) authorize the merger,
consolidation or conversion of the Trust with or into any other business trust
or
14
entity (other than in accordance with Section 3.10 of the Indenture) or (vii)
amend the Certificate of Trust. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Owners.
Section 4.03. Action by Owners with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Owners and the delivery to the Owner Trustee by each such Owner of a certificate
certifying that such Owner reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions on Owners' Power. The Owners shall not direct
the Owner Trustee to take or to refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the other Basic Documents or would be contrary to
the purpose of the Trust 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 Owners under this Agreement may be taken by the
Holders of Trust Certificates evidencing not less than a majority of the
aggregate Certificate Percentage Interest. Except as expressly provided herein,
any written notice of the Owners delivered pursuant to this Agreement shall be
effective if signed by Holders of Trust Certificates evidencing not less than a
majority of the aggregate Certificate Percentage Interest at the time of the
delivery of such notice.
15
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Trust Account. The Owner Trustee, for the
benefit of the Certificateholders, shall establish and maintain in the name of
the Trust an Eligible Account (the "Certificate Distribution Account"), bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Certificateholders. The Certificate Distribution Account
initially shall be established with Western Financial Bank in the State of
California.
The Owner Trustee shall possess all right, title and interest in funds
on deposit from time to time in the Certificate Distribution Account and in the
proceeds thereof. Except as otherwise expressly provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Certificateholders. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Account, the Owner
Trustee (or the Depositor on behalf of the Owner Trustee, if the Certificate
Distribution Account is not then held by the Owner Trustee or an Affiliate
thereof) shall within ten Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency) establish a new Certificate
Distribution Account as an Eligible Account and shall transfer any cash and/or
any investments to such new Certificate Distribution Account.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee, at the direction of
the Master Servicer, will distribute to Certificateholders, in proportion to
each Certificateholder's Certificate Percentage Interest, amounts deposited into
the Certificate Distribution Account pursuant to Sections 5.06 and 9.01 of the
Sale and Servicing Agreement and Section 2.07(c) of the Indenture with respect
to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement or statements provided to the Owner Trustee by
the Master Servicer pursuant to Section 5.07 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to an Owner, such tax shall reduce the amount
otherwise distributable to the Owner in accordance with this Section. The Owner
Trustee is hereby authorized and directed to retain, or cause the Paying Agent
to retain, from amounts otherwise distributable to the Owners sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee from contesting any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The amount of any withholding tax
imposed with respect to an Owner shall be treated as cash distributed to such
Owner at the time it is withheld by the Trust and remitted to the appropriate
taxing authority. If there is a possibility that withholding tax is payable with
respect to a distribution, the Owner Trustee may in its sole discretion withhold
such amounts in accordance with this paragraph (c).
16
Section 5.03. Method of Payment. Subject to Section 9.01(c) respecting
the final payment upon retirement of each Trust Certificate, distributions
required to be made to each Certificateholder of record on the related Record
Date shall be made by check mailed to such Certificateholder at the address of
such Holder appearing in the Certificate Register or by wire transfer of
immediately available funds.
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 or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
Section 5.05. Accounting and Reports to the Noteholders, Owners, the
Internal Revenue Service and Others. The Owner Trustee shall (i) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis and the
accrual method of accounting, (ii) deliver to each Owner, as may be required by
the Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable each Owner to prepare its federal
and state income tax returns, (iii) file such tax returns relating to the Trust
(including a partnership information return, IRS Form 1065) and make such
elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership or a disregarded
entity 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 Owners. The Owner Trustee shall elect
under Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Contracts. The Owner Trustee shall not
make the election provided under Section 754 of the Code.
Section 5.06. Signature on Returns; Tax Matters. WFSRC3 shall sign on
behalf of the Trust, the tax returns, if any are required, of the Trust and
shall ensure that any taxes incurred by the Trust, if any, are duly paid by the
Persons owing such taxes.
17
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment, certificate or other agreement, as evidenced conclusively by the
Owner Trustee's execution thereof. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all actions required
of the Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator recommends
with respect to the Basic Documents.
Section 6.02. General Duties. Subject to the provisions and limitations
of Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge (or cause to be discharged through the Administrator or such agents as
shall be appointed by it) all of its responsibilities pursuant to the terms of
this Agreement and the other Basic Documents to which the Trust is a party and
to administer the Trust in the interest of the Owners, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the 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
hereunder or under any Basic Document, regardless of whether the Administration
Agreement is subsequently terminated or rejected by the Administrator, and the
Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, in accordance with the terms of the Basic
Documents, the Owners may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Owners pursuant to Article Four.
(b) The Owner Trustee shall not be required to take any action hereunder
or under 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
hereof or of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any other Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Owners 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 Owners received, the Owner Trustee shall not be liable on account of such
action to any
18
Person. If the Owner Trustee shall not have received appropriate instruction
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement and the other Basic
Documents, as it shall deem to be in the best interests of the Owners, and shall
have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any other 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 Owners
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within 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 Owners, 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 Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03 and no implied duties or obligations
shall be read into this Agreement or any 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 Trust 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 Trust Estate that result from actions by, or
claims against, the Owner Trustee that are not related to the ownership or the
administration of the 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 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 and (iii) any
document or instruction delivered to the Owner Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (ii) that, to the actual
19
knowledge of a Responsible Officer in the Owner Trustee Corporate Trust Office,
would result in the Trust's becoming taxable as a corporation for federal or
state income tax purposes. The Owners shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
20
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Trust Estate upon the terms of this Agreement and the other Basic
Documents. 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 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 particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or any Owner;
(c) no provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or
powers hereunder or under any 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 of the Basic Documents,
including the principal of and interest on the Notes or the Trust
Certificates;
(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 Trust Estate,
or for or in respect of the validity or sufficiency of the Basic
Documents, other than the certificate of authentication on the Trust
Certificates, and the Owner Trustee shall in no event assume or incur
any liability, duty or obligation to any Noteholder or to any Owner,
other than as expressly provided for herein or expressly agreed to in
the other Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, WFSRC3, as Seller or Depositor, the
Indenture Trustee or the Master Servicer under any of the Basic
Documents or otherwise, and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Owner Trustee or the
Trust under this Agreement or the other Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture
21
Trustee under the Indenture or the Master Servicer or WFSRC3, as Seller
or Depositor, under the Sale and Servicing Agreement; and
(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 the Owners, unless such Owners
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 for other than its negligence or willful
misconduct in the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Owners 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.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor and the Owners that:
(a) It is a banking association duly organized and validly
existing under the laws of the United States of America. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or 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 Trust Estate resulting from actions
by or claims against the Owner Trustee individually which are unrelated
to this Agreement or the other Basic Documents.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
22
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.
(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 (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants and
other skilled persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and 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 Seven, in accepting the trusts hereby created, Chase
Manhattan Bank USA, National Association 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 Trust Estate for payment or
satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates, Notes or
Contracts. The recitals contained herein and in the Trust Certificates (other
than the signature of the Owner Trustee and the certificate of authentication on
the Trust 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 or the Trust Certificates (other than the
signature of the Owner Trustee and the certificate of authentication on the
Trust Certificates and the representations and warranties in Section 7.03) or
the Notes, or of any Contract 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 Contract, or the perfection and
priority of any security interest created by any Contract in any Financed
Vehicle or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Trust Estate or its ability to generate the
payments to be distributed to Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Contract on any computer or other record thereof; the validity of the assignment
of any Contract to the Trust or of any intervening assignment; the completeness
of any Contract; the performance or enforcement of any Contract; the compliance
by the Depositor or the Master 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
23
any action of the Administrator, the Indenture Trustee or the Master Servicer or
any subservicer taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Master Servicer in banking
transactions with the same rights as it would have if it were not Owner Trustee.
Section 7.08. Pennsylvania Motor Vehicle Sales Finance Act Licenses. The
Owner Trustee, in its individual capacity, shall use its best efforts to
maintain, and the Owner Trustee, as Owner Trustee, shall cause the Trust to use
its best efforts to maintain, the effectiveness of all licenses required under
the Pennsylvania Motor Vehicle Sales Finance Act in connection with this
Agreement and the other Basic Documents and the transactions contemplated hereby
and thereby until such time as the Trust shall terminate in accordance with the
terms hereof.
24
ARTICLE EIGHT
COMPENSATION 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 Seller and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the Seller
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 Seller shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Basic Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Seller 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. 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 Depositor, 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
Trust Estate immediately after such payment.
25
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the final distribution by the Owner
Trustee of all monies or other property or proceeds of the Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing Agreement and
Article Five. The bankruptcy, liquidation, dissolution, death or incapacity of
any Owner shall not (i) operate to terminate this Agreement or the Trust, (ii)
entitle such Owner's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or 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 of the Depositor nor
any Owner shall be entitled to dissolve, revoke or terminate the Trust.
(c) Notice of any dissolution of the Trust, specifying the Distribution
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of a termination notice from the Master Servicer given
pursuant to Section 9.01(c) of the Sale and Servicing Agreement and no later
than 20 days prior to such dissolution, stating (i) the Distribution Date upon
or with respect to which final payment of the Trust Certificates shall be made
upon presentation and surrender of the Trust Certificates at the office of the
Paying Agent in The City of New York 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, payments being made only upon presentation
and surrender of the Trust 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 Trust Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.02. In addition, the Owner Trustee shall notify the Rating Agencies
upon the final payment of the Trust Certificates.
(d) In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies at least 18 months after the date of
dissolution shall be distributed by the Owner Trustee to a charity designated by
the Master Servicer.
26
(e) Upon the winding up of the Trust and payment of its liabilities or
reasonable provision therefore in accordance with Section 3808 of the Business
Trust Statute, the Owner Trustee 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 of the Business Trust Statute and
this Agreement (other than Article Eight) and the Trust shall terminate.
27
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's and
A-1 by Standard & Poor's. If such corporation shall publish reports of condition
at least annually pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Owner Trustee 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. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee 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 the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the 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 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 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.
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
28
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective, and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall, upon payment of its fees and expenses, deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and the 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.
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. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such corporation shall be eligible pursuant to Section 10.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the 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 Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01, except that such co-trustee or
successor trustee shall have (or have a parent that has) a rating of at least
Baa3 by Moody's and A-1 by Standard & Poor's, and
29
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 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 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 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 by the Depositor and the Owner
Trustee, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; provided, however, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with the consent of the Holders of Trust
Certificates evidencing not less than a majority of the aggregate Certificate
Percentage Interest (which consent of any Holder of a Note or Trust Certificate
given pursuant to this Section or pursuant to any other provision of this
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Note or Trust Certificate, as the case may be, issued upon the
transfer thereof or in exchange thereof or in lieu thereof whether or not
notation of such consent is made thereon) and, if such amendment materially and
adversely affects the interests of the Noteholders, with the consent of Holders
(as such term is defined in the Indenture) of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall increase
or reduce in any manner the amount of, or accelerate or delay the timing of, (i)
collections of payments on Contracts or distributions that shall be required to
be made for the benefit of the Noteholders or the Certificateholders or any
Interest Rate or (ii) reduce the aforesaid percentage of the Outstanding Amount
of the Notes and the Certificate Percentage Interest required to consent to any
such amendment, without the consent of the Holders of all outstanding Notes and
Trust Certificates.
(c) Prior to the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent, together with a copy thereof, to the Indenture Trustee, the the
Administrator and each Rating Agency.
(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. It shall not be necessary for
the consent of Certificateholders, Noteholders or the Indenture Trustee pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
31
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) In connection with the execution of any amendment to this Agreement
or any other Basic Document to which the Issuer is a party and for which
amendment the Owner Trustee's consent is sought, the Owner Trustee shall be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Basic Documents and
that all conditions precedent in the Basic Documents for the execution and
delivery thereof by the Issuer or the Owner Trustee, as the case may be, have
been satisfied. The Owner Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Owners. The Owners
shall not have legal title to any part of the Trust Estate. The Owners shall be
entitled to receive distributions with respect to their undivided ownership
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 Owners to
and in their ownership interest in the Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
Section 11.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Owners, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
Section 11.04. Notices. All demands, notices and communications under
this Agreement shall be in writing personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt in the case of (i) the Owner Trustee, at the Owner Trustee Corporate
Trust Office; (ii) WFSRC3, at 000 Xxxx Xxxx Xxxxxxx Xxxx #000, Xxx Xxxxx, Xxxxxx
00000, Attention: Xxxxx Xxxx; (iii) the Certificate Registrar or the agent for
the Owner Trustee, at the address indicated under the definition of "Owner
Trustee Corporate Trust Office"; or (iv) as to each party, at such other address
as shall be designated by such party in a written notice to each other party.
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 Holder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section 11.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Trust
Certificates or the rights of the Holders thereof.
32
Section 11.06. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and their respective successors and permitted
assigns and each Owner and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by an Owner shall bind the successors and assigns of such Owner.
Section 11.08. No Petition.
(a) The Depositor will not at any time institute against the Trust any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Trust
Certificates, the Notes, this Agreement or any of the other Basic Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Seller,
the Depositor or the Trust, or join in any institution against the Seller, the
Depositor or the Trust of, any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, this Agreement or any of the
other Basic Documents.
Section 11.09. No Recourse. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Master Servicer, the Seller, 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 this Agreement,
the Trust Certificates or the other Basic Documents.
Section 11.10. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof pursuant to Section 3.03, the Certificates shall be
deemed fully paid.
Section 11.11. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
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.
33
Section 11.13. Depositor Payment Obligation. The Depositor shall be
responsible for payment of the Administrator's compensation pursuant to Section
3 of the Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
Section 11.14. Limited Recourse. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Seller under
Sections 8.01 and 8.02 are solely the corporate obligations of the Seller and
shall be payable by the Seller, solely as provided in Sections 8.01 and 8.02.
The Seller shall only be required to pay (i) any fees, expenses, indemnities or
other liabilities that it may incur under Section 8.01 or 8.02, as applicable,
(A) from funds available pursuant to, and in accordance with, the payment
priorities set forth in Section 5.06 of the Sale and Servicing Agreement and (B)
to the extent the Seller has additional funds available (other than funds
described in the preceding clause (A)) that would be in excess of amounts that
would be necessary to pay the debt and other obligations as they become due of
such entity incurred in accordance with its certificate of incorporation and all
financing documents to which it is a party and (ii) any expenses, indemnities or
other liabilities that it may incur under Section 8.01 or 8.02 as applicable,
(A) from funds available pursuant to, and in accordance with, the payment
priorities set forth in Section 5.06 of the Sale and Servicing Agreement and (B)
only to the extent it receives additional funds designated for such purposes or
to the extent it has additional funds available (other than funds described in
the preceding clause (A)) that would be in excess of amounts that would be
necessary to pay its debt and other obligations as they become due incurred in
accordance with its certificate of incorporation and all financing documents to
which it is a party. The agreement set forth in the preceding sentence shall
constitute a subordination agreement for purposes of Section 510(a) of the
Bankruptcy Code. In addition, no amount owing by the Seller hereunder in excess
of the liabilities that it is required to pay in accordance with the preceding
sentence shall constitute a "claim" (as defined in Section 101(5) of the
Bankruptcy Code) against it. No recourse shall be had for the payment of any
amount owing hereunder or for the payment of any fee hereunder or any other
obligation of, or claim against, the Seller arising out of or based upon Section
8.01 or 8.02, as applicable, against any stockholder, employee, officer, agent,
director or authorized person of the Seller or Affiliate thereof; provided,
however, that the foregoing shall not relieve any such person or entity of any
liability they might otherwise have as a result of fraudulent actions or
omissions taken by them.
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WFS RECEIVABLES CORPORATION 3
By: ___________________________________
Name:
Title:
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
as Owner Trustee
By: ___________________________________
Name:
Title:
EXHIBIT A
CERTIFICATE OF TRUST OF
WFS FINANCIAL 2002-3 OWNER TRUST
This Certificate of Trust of WFS Financial 2002-3 Owner Trust (the
"Trust"), dated as of August 5, 2002, is being duly executed and filed by Chase
Manhattan Bank USA, National Association, a national association, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is WFS Financial
2002-3 Owner Trust.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Chase Manhattan Bank USA, National
Association, c/o XX Xxxxxx Xxxxx, Attn: Institutional Trust Services, 000
Xxxxxxx Xxxxxxxxxx Xx., XXX0 /0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: ___________________________________
Name:
Title:
A-1
EXHIBIT B
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES
TO THE EXTENT DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.
[TO BE INSERTED ON THE RETAINED CERTIFICATE--
THIS TRUST CERTIFICATE IS NON-TRANSFERABLE EXCEPT AS PROVIDED IN
SECTION 3.10 OF THE TRUST AGREEMENT]
WFS FINANCIAL 2002-3 OWNER TRUST
AUTO RECEIVABLE BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes, among other things, a pool of retail
installment sale contracts secured by new and used automobiles and light duty
trucks transferred to the Trust by WFS Receivables Corporation 3.
(This Trust Certificate does not represent an interest in or obligation
of WFS Financial Inc., WFS Receivables Corporation 3 or any of their respective
affiliates, and is not a deposit and is not insured by the Federal Deposit
Insurance Corporation).
NUMBER [C-1] [C-2]
THIS CERTIFIES THAT WFS Receivables Corporation 3 is the registered
owner of [99%][1%] Certificate Percentage Interest nonassessable, fully-paid,
fractional undivided interest in the WFS Financial 2002-3 Owner Trust (the
"Trust") formed by WFS Receivables Corporation 3, a California corporation (the
"Depositor").
The Trust was created pursuant to a Trust Agreement, dated August 5,
2002, as amended and restated as of August 15, 2002 (as amended and supplemented
from time to time, the "Trust Agreement"), between WFS Receivables Corporation 3
(the "Depositor") and Chase Manhattan Bank USA, National Association, as owner
trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which is set forth below. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "Auto Receivable Backed Certificates" (the "Trust Certificates").
Issued under the Indenture, dated as of August 1, 2002 (the "Indenture"),
between the Trust and Deutsche Bank Trust Company Americas, as Indenture
Trustee, are seven classes of auto receivable backed notes designated as,
"1.7325% Class A-1 Notes", "2.02% Class A-2 Notes", "2.76% Class A-3 Notes",
"3.50% Class A-4 Notes", "3.29% Class B Notes", "3.74% Class C Notes" and "4.23%
Class D Notes" (collectively, the "Notes"). This Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Trust Certificate by
virtue of its acceptance hereof assents and by which such Holder is bound.
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The property of the Trust includes, among other things, a pool of retail
installment sale contracts (the "Contracts") for new and used automobiles and
light duty trucks (the "Financed Vehicles").
Under the Trust Agreement, there will be distributed on the 20th of each
month or, if any such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on September 20, 2002 and ending
no later than February 22, 2010 to the person in whose name this Trust
Certificate is registered at the close of business on the last calendar day
immediately preceding the related Distribution Date (the "Record Date"), such
Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such Distribution Date.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Master Servicer and the
Certificateholders that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be
disregarded for tax purposes or treated as a partnership and the
Certificateholders (including the Depositor) will be taxable individually or as
partners in a partnership. The Depositor and the other Certificateholders, by
acceptance of a Trust Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Trust Certificates for such tax purposes
as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Trust Certificate
covenants and agrees that such Certificateholder will not at any time institute
against the Trust, the Seller or the Depositor, or join in any institution
against the Trust, the Seller or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Trust Certificates, the
Notes, the Trust Agreement or any of the other Basic Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Trust Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the
above, the final distribution on this Trust Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Trust Certificate at the office of the Paying
Agent or the office or agency maintained for that purpose by the Owner Trustee
in The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the
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holder hereof to any benefit under the Trust Agreement or any other Basic
Document or be valid for any purpose.
THIS TRUST 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.
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[REVERSE OF CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an interest
in, the Seller, the Depositor, the Master Servicer, the Owner Trustee or any of
their respective Affiliates and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the other Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with
respect to the Contracts (and certain other amounts), in each case as more
specifically set forth herein and in the Sale and Servicing Agreement. Copies of
the Sale and Servicing Agreement and the Trust Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Depositor and at such other places, if any, designated
by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Trust
Agreement at any time by the parties thereto with the consent of Holders of
Trust Certificates evidencing not less than a majority of the aggregate
Certificate Percentage Interest and, if such amendment materially and adversely
affects the interests of the Noteholders, with the consent of Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes. Any
such consent by the Holder of this Trust Certificate shall be conclusive and
binding on such Holder and on all future Holders of this Trust Certificate and
of any Trust Certificate issued upon the transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent is made upon this
Trust Certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Trust Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
in The City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Trust Certificates evidencing the same aggregate
interest in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is XX Xxxxxx Xxxxx
Bank.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, Trust Certificates are exchangeable for new Trust
Certificates evidencing the same Certificate Percentage Interest, as requested
by the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar, the Paying Agent and any
of their respective agents may treat the Person in whose name this Trust
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar, the Paying Agent or any such agent
shall be affected by any notice to the contrary.
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The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the disposition of all property held as
part of the Trust Estate.
As provided in the Sale and Servicing Agreement, on any Distribution
Date the holders of Certificates will have the option to exercise an Optional
Repurchase right with respect to Contracts randomly selected by the Master
Servicer. Such repurchase may effect early retirement of the Trust Certificates.
The sum of the Principal Balances of the Contracts repurchased pursuant to an
Optional Repurchase shall not exceed $250,000,000.
The Seller may at the Seller's option purchase the Trust Estate at a
price specified in the Sale and Servicing Agreement, and such purchase of the
Contracts and other property of the Trust will effect early retirement of the
Trust Certificates; however, such right of purchase is exercisable only as of
any Distribution Date as of which the sum of the Principal Balances of the
Contracts is less than or equal to $125,000,000.
The Trust Certificates may not be acquired by a Benefit Plan. By
accepting and holding this Trust Certificate, the Holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan and is not
acquiring this Trust Certificate or an interest therein for the account of a
Benefit Plan.
Any person who is not an affiliate of the Seller and acquires more than
49.9% of the Trust 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 plan with respect to which it is a party in interest has or will acquire
any interest in the Notes.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly executed.
Dated: August __, 2002 WFS FINANCIAL 2002-3 OWNER TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: ____________________________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
XX XXXXXX XXXXX BANK, CHASE MANHATTAN BANK USA,
as Authenticating Agent NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee
OR
By: ______________________________ By: ________________________________
Authorized Signatory Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
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to transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: ____________________
Signature Guaranteed:
_______________________________________ ________________________________
NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this
by an eligible guarantor institution. assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Trust Certificate in
every particular, without
alteration or enlargement or any
change whatever.
