Exhibit 4.2
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WDS RECEIVABLES LLC,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
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AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of January 1, 2008
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions.................................................................................1
Section 1.02. Other Definitional Provisions.......................................................................6
Section 1.03. Interpretive Provisions.............................................................................6
ARTICLE TWO
ORGANIZATION
Section 2.01. Name................................................................................................7
Section 2.02. Office..............................................................................................7
Section 2.03. Purposes and Powers.................................................................................7
Section 2.04. Appointment of Owner Trustee........................................................................8
Section 2.05. Initial Capital Contribution of Owner Trust Estate..................................................8
Section 2.06. Declaration of Trust................................................................................8
Section 2.07. Liability of Certificateholders.....................................................................8
Section 2.08. Title to Trust Property.............................................................................9
Section 2.09. Situs of Issuer.....................................................................................9
Section 2.10. Representations and Warranties of the Depositor.....................................................9
Section 2.11. Federal Income Tax Matters.........................................................................10
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership..................................................................................12
Section 3.02. The Certificates...................................................................................12
Section 3.03. Authentication and Delivery of Certificates........................................................12
Section 3.04. Registration, Transfer and Exchange of Certificates................................................12
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates..................................................14
Section 3.06. Persons Deemed Certificateholders..................................................................14
Section 3.07. Access to List of Certificateholders' Names and Addresses..........................................15
Section 3.08. Maintenance of Office or Agency....................................................................15
Section 3.09. Appointment of Paying Agent........................................................................15
Section 3.10. Certificates Nonassessable and Fully Paid..........................................................16
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain Matters.................................17
Section 4.02. Action by Certificateholders with Respect to Certain Matters.......................................17
Section 4.03. Action by Certificateholders with Respect to Bankruptcy............................................18
Section 4.04. Restrictions on Certificateholders' Power..........................................................18
Section 4.05. Majority Control...................................................................................18
Section 4.06. Certain Litigation Matters.........................................................................18
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account.......................................................19
Section 5.02. Application of Trust Funds.........................................................................19
Section 5.03. Method of Payment..................................................................................20
Section 5.04. No Segregation of Monies; No Interest..............................................................20
Section 5.05. Accounting and Reports to Noteholders, Certificateholders, the IRS and Others......................20
Section 5.06. Signature on Returns; Tax Matters Partner..........................................................21
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority..................................................................................22
Section 6.02. General Duties.....................................................................................22
Section 6.03. Action Upon Instruction............................................................................23
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions.................................24
Section 6.05. No Action Except Under Specified Documents or Instructions.........................................24
Section 6.06. Restrictions.......................................................................................24
ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties...............................................................................25
Section 7.02. Furnishing of Documents............................................................................26
Section 7.03. Representations and Warranties.....................................................................27
Section 7.04. Reliance; Advice of Counsel........................................................................27
Section 7.05. Not Acting in Individual Capacity..................................................................28
Section 7.06. Owner Trustee Not Liable for Certificates or Receivables...........................................28
Section 7.07. Owner Trustee May Own Certificates and Notes.......................................................28
Section 7.08. Paying Agent; Authenticating Agent.................................................................29
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses..................................................................30
Section 8.02. Indemnification....................................................................................30
Section 8.03. Payments to the Owner Trustee......................................................................30
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.....................................................................31
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee........................................................33
Section 10.02. Resignation or Removal of Owner Trustee...........................................................33
Section 10.03. Successor Owner Trustee...........................................................................34
Section 10.04. Merger or Consolidation of Owner Trustee..........................................................34
Section 10.05. Appointment of Co-Trustee or Separate Trustee.....................................................35
ARTICLE ELEVEN
REGULATION AB
Section 11.01. Intent of the Parties; Reasonableness.............................................................37
Section 11.02. Representations and Warranties....................................................................37
Section 11.03. Information to Be Provided by the Owner Trustee...................................................37
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Supplements and Amendments........................................................................39
Section 12.02. No Legal Title to Owner Trust Estate in Certificateholders........................................40
Section 12.03. Limitations on Rights of Others...................................................................41
Section 12.04. Notices...........................................................................................41
Section 12.05. Severability......................................................................................41
Section 12.06. Counterparts......................................................................................41
Section 12.07. Successors and Assigns............................................................................41
Section 12.08. Covenants of the Depositor........................................................................42
Section 12.09. No Petition.......................................................................................42
Section 12.10. No Recourse.......................................................................................42
Section 12.11. Headings..........................................................................................42
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Section 12.12. GOVERNING LAW.....................................................................................42
Section 12.13. Servicer Payment Obligation.......................................................................42
Section 12.14. Obligations with Respect to the Swap Counterparty.................................................42
EXHIBITS
Exhibit A - Form of Certificate.................................................................................A-1
Exhibit B - Form of Certificate of Trust........................................................................B-1
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of January 1, 2008,
is between WDS Receivables LLC, a Nevada limited liability company, as depositor
(the "Depositor"), and Wilmington Trust Company, a Delaware banking corporation,
as trustee (the "Owner Trustee").
WHEREAS, Wachovia Auto Loan Owner Trust 2008-1 has been created
pursuant to a trust agreement, dated August 21, 2007 (the "Initial Trust
Agreement"), between the Depositor and the Owner Trustee, and the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
August 21, 2007; and
WHEREAS, the Depositor and the Owner Trustee wish to amend and restate
the Initial Trust Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accountants" means a firm of independent public accountants.
"Administration Agreement" means the administration agreement, dated as
of January 1, 2008, among the Administrator, the Issuer, the Depositor and the
Indenture Trustee.
"Administrator" means Wachovia Bank, in its capacity as administrator
under the Administration Agreement, and its successors in such capacity.
"Affiliate" has the meaning specified in the Sale and Servicing
Agreement.
"Agreement" means this Amended and Restated Trust Agreement.
"Applicants" has the meaning specified in Section 3.07.
"Basic Documents" has the meaning specified in the Sale and Servicing
Agreement.
"Benefit Plan" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"Business Day" has the meaning specified in the Sale and Servicing
Agreement.
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Owner Trust Estate, substantially in the form of
Exhibit A.
"Certificate of Trust" means the Certificate of Trust substantially in
the form of Exhibit B filed for the Issuer pursuant to Section 3810(a) of the
Statutory Trust Statute.
"Certificate Payment Account" has the meaning specified in Section
5.01.
"Certificate Percentage Interest" means, with respect to a Certificate,
the percentage specified on such Certificate as the Certificate Percentage
Interest, which percentage represents the beneficial interest of the holder of
such Certificate in the Issuer. The initial Certificate Percentage Interest held
by the Depositor shall be 100%.
"Certificate Register" and "Certificate Registrar" shall have the
respective meanings specified in Section 3.04(a).
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered on the Certificate Register.
"Class" has the meaning specified in the Indenture.
"Closing Date" has the meaning specified in the Indenture.
"Code" has the meaning specified in the Indenture.
"Collection Period" has the meaning specified in the Indenture.
"Commission" has the meaning specified in the Sale and Servicing
Agreement.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration, or at such other address as the Owner Trustee may designate from
time to time by notice to the Certificateholders, the Indenture Trustee, the
Master Servicer and the Depositor, or the principal corporate trust office of
any successor Owner Trustee at the address designated by such successor Owner
Trustee by notice to the Certificateholders, the Indenture Trustee, the Master
Servicer and the Depositor.
"Cutoff Date Pool Balance" has the meaning specified in the Sale and
Servicing Agreement.
"Depositor" means WDS Receivables, in its capacity as depositor
hereunder, and its successors in such capacity.
"Distribution Date" has the meaning specified in the Indenture.
"Eligible Institution" has the meaning specified in the Sale and
Servicing Agreement.
"Eligible Investments" has the meaning specified in the Sale and
Servicing Agreement.
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"ERISA" means the Employee Retirement Income Security Act of 1974.
"Excess Collections" has the meaning specified in the Indenture.
"Exchange Act" has the meaning specified in the Indenture.
"Exchange Act Reports" has the meaning specified in the Sale and
Servicing Agreement.
"Excluded Property" means any funds held and invested pursuant to
Section 2.03(b).
"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever.
"Final Scheduled Distribution Date" has the meaning specified in the
Indenture.
"Financed Vehicle" has the meaning specified in the Sale and Servicing
Agreement.
"Fitch" has the meaning specified in the Indenture.
"Indemnified Parties" means the Owner Trustee and its successors,
assigns, directors, officers and agents.
"Indenture" means the indenture, dated as of January 1, 2008, between
the Issuer and the Indenture Trustee.
"Indenture Trustee" has the meaning specified in the Indenture.
"IRS" means the United States Internal Revenue Service.
"Issuer" has the meaning specified in the Indenture.
"Item 1119 Party" has the meaning specified in the Sale and Servicing
Agreement.
"Lien" has the meaning specified in the Sale and Servicing Agreement.
"Maryland Vehicle Sales Finance Act" has the meaning specified in the
Indenture.
"Master Servicer" has the meaning specified in the Sale and Servicing
Agreement.
"Xxxxx'x" has the meaning specified in the Indenture.
"Note Balance" has the meaning specified in the Indenture.
"Note Registrar" has the meaning specified in the Indenture.
"Noteholder" has the meaning specified in the Indenture.
"Notes" has the meaning specified in the Indenture.
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"Opinion of Counsel" means one or more written opinions of counsel, who
may, except as expressly provided in this Agreement, be an employee of or
outside counsel to the Issuer, Depositor, the Seller or the Master Servicer, and
who shall be acceptable to the Indenture Trustee or the Owner Trustee, as the
case may be.
"Optional Purchase" means the exercise by the Seller of its option to
purchase all remaining Receivables from the Issuer on any Distribution Date
following the last day of a Collection Period as of which the Pool Balance is
10% or less of the Cutoff Date Pool Balance.
"Outstanding" has the meaning specified in the Indenture.
"Owner Trust Estate" means the $1.00 initial capital contribution from
the Depositor and all right, title and interest of the Issuer in, to and under
the property and rights assigned to the Issuer pursuant to Article Two of the
Sale and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under this Agreement, and any successor in
such capacity.
"Paying Agent" means the Indenture Trustee, in its capacity as Paying
Agent under this Agreement, and any successor paying agent or co-paying agent
appointed pursuant to Section 3.09 who is authorized by the Owner Trustee on
behalf of the Issuer to make distributions from the Certificate Payment Account
on behalf of the Issuer.
"Pennsylvania Motor Vehicle Sales Finance Act" has the meaning
specified in the Indenture.
"Person" has the meaning specified in the Sale and Servicing Agreement.
"Plan Asset Regulation" means 29 C.F.R. Section 2510.3-101 issued by
the United States Department of Labor concerning the definition of what
constitutes the assets of a Benefit Plan with respect to such Benefit Plan's
investment in an entity for purposes of the fiduciary responsibility provisions
of Title I of ERISA and Section 4975 of the Code.
"Pool Balance" has the meaning specified in the Sale and Servicing
Agreement.
"Protected Purchaser" has the meaning specified in Section 8-303 of the
UCC.
"PTCE 95-60" means Prohibited Transaction Class Exemption 95-60.
"Rating Agency" has the meaning specified in the Indenture.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" has the meaning specified in the Receivables Purchase
Agreement.
"Receivables Purchase Agreement" means the receivables purchase
agreement, dated as of January 1, 2008, between the Seller and WDS Receivables.
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"Record Date" means, with respect to the Certificates and any
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
"Regulation AB" has the meaning specified in the Sale and Servicing
Agreement.
"Required Rating" means, with respect to any entity, the short-term
credit rating of the related entity is at least equal to "F1+" by Fitch,
"Prime-1" by Xxxxx'x and "A-1+" by Standard & Poor's.
"Reserve Fund" has the meaning specified in the Sale and Servicing
Agreement.
"Responsible Officer" has the meaning specified in the Sale and
Servicing Agreement.
"Sale and Servicing Agreement" means the sale and servicing agreement,
dated as of January 1, 2008, among the Issuer, the Depositor, the Seller and the
Master Servicer.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Act" has the meaning specified in the Sale and Servicing
Agreement.
"Securitization Transaction" means any transaction involving a sale or
other transfer of receivables directly or indirectly to an issuing entity in
connection with an issuance of publicly offered or privately placed, rated or
unrated asset-backed securities.
"Seller" has the meaning specified in the Receivables Purchase
Agreement.
"Servicer Termination Event" has the meaning specified in the Sale and
Servicing Agreement.
"Standard & Poor's" has the meaning specified in the Indenture.
"State" has the meaning specified in the Indenture.
"Statutory Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq.
"Successor Servicer" has the meaning specified in the Sale and
Servicing Agreement.
"Swap Agreement" has the meaning specified in the Indenture.
"Swap Counterparty" has the meaning specified in the Indenture.
"Transfer" means a sale, exchange, transfer, assignment, participation,
pledge or other disposition of a Certificate.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary Treasury Regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
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"UCC" has the meaning specified in the Indenture.
"United States" has the meaning specified in the Indenture.
"Vice President" has the meaning specified in the Sale and Servicing
Agreement.
"Wachovia Bank" means Wachovia Bank, National Association.
"WDS Receivables" means WDS Receivables LLC.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement or the
Indenture, as the case may be.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
Section 1.03. Interpretive Provisions. With respect to all terms in
this Agreement, unless the context otherwise requires: (i) a term has the
meaning assigned to it; (ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time in the United States; (iii) "or" is
not exclusive; (iv) "including" means including without limitation; (v) words in
the singular include the plural and words in the plural include the singular;
(vi) any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, restated,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
(vii) references to a Person are also to its successors and permitted assigns;
(viii) the words "hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; (ix) Section, subsection, Schedule
and Exhibit references in this Agreement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; (x) references to "writing" include printing, typing, lithography and
other means of reproducing words in a visible form; and (xi) the term "proceeds"
has the meaning set forth in the applicable UCC.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The statutory trust created by the Initial Trust
Agreement and the filing of the Certificate of Trust and continued hereby shall
be known as "Wachovia Auto Loan Owner Trust 2008-1", in which name the Owner
Trustee may conduct the business of the Issuer, make and execute contracts and
other instruments on behalf of the Issuer and xxx and be sued on behalf of the
Issuer, to the extent herein provided.
Section 2.02. Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers.
(a) The purpose of the Issuer is, and the Issuer shall have
the power and authority to engage in, the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to convey and deliver the
Notes and the Certificates upon the written order of the Depositor;
(ii) to permit the Depositor to use, or to use, at the
direction of the Depositor, the proceeds of the sale of the Notes to
(A) purchase the Receivables to be acquired on the Closing Date, (B)
fund the Reserve Fund with an amount equal to the Reserve Fund Deposit,
(C) pay the organizational, start-up and transactional expenses of the
Issuer and (D) to pay the balance to the Depositor (or to permit the
Depositor to retain the balance, as applicable) pursuant to the Sale
and Servicing Agreement;
(iii) to pay interest on and principal of the Notes to the
Noteholders and to cause any Excess Collections to be paid to the
Certificateholders or otherwise in accordance with the Indenture;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate (other than the Certificate Payment Account and
the proceeds thereof) to the Indenture Trustee pursuant to the
Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Noteholders and the Certificateholders.
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(b) The Issuer may, at its discretion, actively invest in United States
treasury securities for the purpose of realizing a gain on such investments;
provided, however, that (i) the Issuer may not invest more than $100,000 in such
securities and (ii) the funds used to purchase such securities must not be
subject to the Lien of the Indenture.
(c) The Issuer is hereby authorized to engage in the foregoing
activities. The Issuer shall not engage in any activities other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement and the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
confirms the appointment of the Owner Trustee as trustee of the Issuer effective
as of the date of creation of the Issuer, to have all the rights, powers and
duties set forth herein and in the Statutory Trust Statute, and the Owner
Trustee hereby confirms its acceptance of such appointment.
The Owner Trustee may engage, in the name of the Issuer or in its own
name on behalf of the Issuer, in the activities of the Issuer, make and execute
contracts on behalf of the Issuer and xxx on behalf of the Issuer.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. As of
August 21, 2007, the Depositor assigned, transferred, conveyed and set over to
the Owner Trustee the sum of $1.00. The Depositor shall pay the organizational
expenses of the Issuer as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Issuer under the Basic Documents. It is the
intention of the parties hereto that (i) the Issuer constitute a statutory trust
under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) solely for income and
franchise tax purposes, the Issuer shall be treated as either an entity that is
disregarded as separate from the beneficial owner of the equity if there is only
one such owner, or as a partnership (other than an association or publicly
traded partnership) if there are two or more such owners, with the assets of the
partnership being the Receivables and other assets held by the Issuer, the
partners of the partnership being the Certificateholders and any holders of the
Notes that are required by the IRS to be treated as equity in the Issuer, and
the remaining Notes constituting indebtedness of the partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Issuer
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the foregoing characterization of the Issuer for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Statutory Trust
Statute to accomplish the purposes of the Issuer as set forth in Section
2.03(a). The Owner Trustee has filed the Certificate of Trust with the Secretary
of State.
Section 2.07. Liability of Certificateholders. The Certificateholders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations organized under the general corporation law
of the State of Delaware.
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Section 2.08. Title to Trust Property. Legal title to the entirety of
the Owner Trust Estate shall be vested at all times in the Issuer as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a co-trustee
or a separate trustee, as the case may be.
Section 2.09. Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in the States of Delaware,
California, Nevada, North Carolina or New York. The Issuer shall not have any
employees in any State other than the State of Delaware; provided, however, that
nothing herein shall restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received by
the Issuer only in, and payments will be made by the Issuer only from, the
States of Delaware, California, North Carolina, Nevada or New York. The only
office of the Issuer will be at the Corporate Trust Office.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Nevada, with power, authority and legal right to own its properties and to
conduct its business as such properties are currently owned and such business is
presently conducted, and had at all relevant times, and has the power, authority
and legal right to acquire, own and sell the Receivables.
(b) The Depositor is duly qualified to do business as a foreign limited
liability company in good standing and has obtained all necessary licenses and
approvals in each jurisdiction in which the failure to so qualify or to obtain
such licenses and approvals would materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Basic Documents to which it
is a party, the Receivables, the Notes or the Certificates.
(c) The Depositor has the power and authority to execute, deliver and
perform its obligations under this Agreement and each other Basic Document to
which it is a party; the Depositor has full power and authority to sell, assign,
transfer and convey the property to be sold and assigned to and deposited with
the Owner Trustee as part of the Owner Trust Estate and the Depositor has duly
authorized such sale and assignment and deposit to the Issuer by all necessary
limited liability company action; and the execution, delivery and performance of
this Agreement and the other Basic Documents to which it is a party have been
duly authorized by the Depositor by all necessary limited liability company
action.
(d) This Agreement constitutes a legal, valid and binding obligation of
the Depositor, enforceable in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance or other similar
laws affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
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(e) The execution, delivery and performance by the Depositor of this
Agreement and each other Basic Document to which the Depositor is a party, the
consummation of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under, the certificate of formation
or limited liability company agreement of the Depositor, or conflict with or
violate any of the material terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound or to
which any of its properties are subject; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order of any court, rule or regulation applicable to the Depositor or its
properties or of any federal or State regulatory body, court, administrative
agency or other governmental instrumentality having jurisdiction over the
Depositor or its properties; which breach, default, conflict, Lien or violation
would have a material adverse effect on the earnings, business affairs or
business prospects of the Depositor.
(f) There are no proceedings or investigations pending or, to the
Depositor's knowledge, threatened against the Depositor before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties (i) asserting the
invalidity of this Agreement, any other Basic Document, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this
Agreement or any of the other Basic Documents, (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement, any of the other Basic Documents, the Receivables, the Notes or the
Certificates or (iv) seeking any determination or ruling that would adversely
affect the federal tax attributes of the Issuer or of the Notes or the
Certificates.
(g) The representations and warranties of the Depositor in Section 3.01
of the Receivables Purchase Agreement are true and correct.
Section 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent of
the Depositor and the Master Servicer that, for purposes of federal income,
State and local income and franchise tax and any other income taxes, the Issuer
shall be treated as either an entity that is disregarded as separate from the
beneficial owner of the equity in the Issuer if there is only one such owner, or
as a partnership (other than an association or publicly traded partnership) if
there are two or more such owners, and income, gain or loss of the Issuer for
such month as determined for federal, State and local income and franchise tax
purposes shall be allocated among the Certificateholders as of the Record Date
occurring within such month, in proportion to their ownership of the Certificate
Percentage Interest on such date. The Depositor hereby agrees and each
Certificateholder by acceptance of a Certificate agrees to such treatment and
each agrees to take no action inconsistent with the foregoing characterization.
10
The Depositor is authorized to modify the allocations in this Section
if necessary or appropriate, in its sole discretion, for the allocations to
reflect fairly the economic income, gain or loss to the Certificateholders or as
otherwise required by the Code.
11
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Issuer by
the contribution by the Depositor as described in Section 2.05 and until the
issuance of the Certificates, the Depositor shall be the sole beneficiary of the
Issuer.
Section 3.02. The Certificates. The Certificates shall be issued in one
or more registered, definitive, physical certificates substantially in the form
of Exhibit A. The Certificates may be in printed or typewritten form and shall
be executed on behalf of the Issuer by manual or facsimile signature of an
authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer, shall be
validly issued and entitled to the benefits of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
If Transfer of the Certificates is permitted pursuant to this Section
and Section 3.04, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.04.
Section 3.03. Authentication and Delivery of Certificates. Concurrently
with the sale of the Receivables to the Issuer pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates to be
executed on behalf of the Issuer, authenticated and delivered to or upon the
written order of the Depositor, signed by its president, any Vice President, any
assistant vice president, its treasurer, any assistant treasurer, its secretary
or any assistant secretary, without further limited liability company action by
the Depositor. No Certificate shall entitle the respective Certificateholder to
any benefit under this Agreement, or be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Owner Trustee or its
authenticating agent, by manual signature; and such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. Upon issuance, authentication and delivery pursuant to
the terms hereof, the Certificates will be entitled to the benefits of this
Agreement.
Section 3.04. Registration, Transfer and Exchange of Certificates.
(a) The Owner Trustee initially shall be the registrar (the
"Certificate Registrar") for the purpose of registering Certificates and
Transfers of Certificates as herein provided. The Certificate Registrar shall
keep or cause to be kept, at the office or agency maintained pursuant to Section
3.08, a register (the "Certificate Register") in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and the registration of Transfers
of Certificates. Upon any resignation of any Certificate Registrar, the Owner
Trustee shall, upon receipt of written instructions from the Depositor, promptly
appoint a successor thereto.
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(b) The Certificates may not be acquired by or for the account of a
Benefit Plan. Each Certificateholder, by its acceptance of a Certificate, shall
be deemed to have represented and warranted that such Certificateholder is not
(i) a Benefit Plan and is not a Person acting on behalf of a Benefit Plan or a
Person using the assets of a Benefit Plan to effect the transfer of such
Certificate or (ii) an insurance company purchasing a Certificate with funds
contained in an "insurance company general account" (as defined in Section V(e)
of PTCE 95-60) that includes the assets of a Benefit Plan for purposes of the
Plan Asset Regulation.
Any Person who is not an Affiliate of the Seller and acquires more than
49.9% of the Certificates will be deemed to represent that it is not a party in
interest (within the meaning of ERISA) or a disqualified person (within the
meaning of Section 4975(e)(2) of the Code) with respect to any Benefit Plan,
other than a Benefit Plan that it sponsors for the benefit of its employees, and
that no Benefit Plan with respect to which it is a party in interest has or will
acquire any interest in the Notes.
To the extent permitted under applicable law (including ERISA), neither
the Owner Trustee nor the Certificate Registrar shall be under any liability to
any Person for any registration of Transfer of any Certificate that is in fact
not permitted under applicable law (including ERISA) or for taking any other
action with respect to such Certificate under the provisions of this Agreement
so long as such Transfer was registered by the Owner Trustee or the Certificate
Registrar in accordance with this Agreement.
(c) Upon surrender by a Certificateholder for registration of Transfer
of any Certificate at the office or agency of the Certificate Registrar to be
maintained as provided in Section 3.08, and upon compliance with any provisions
of this Agreement relating to such Transfer, the Owner Trustee shall execute on
behalf of the Issuer and the Owner Trustee shall authenticate and deliver to the
Certificateholder making such surrender, in the name of the designated
transferee or transferees, one or more new Certificates in any authorized
denomination evidencing the same aggregate interest in the Issuer. Each
Certificate presented or surrendered for registration of Transfer shall be
accompanied by a written instrument of transfer and accompanied by IRS Form
X-0XXX, X-0XXX or W-9, as applicable, in form satisfactory to the Owner Trustee
and the Certificate Registrar, duly executed by the Certificateholder or his
attorney duly authorized in writing. Each Certificate presented or surrendered
for registration of Transfer shall be canceled and subsequently disposed of by
the Certificate Registrar in accordance with its customary practice. No service
charge shall be made for any registration of Transfer of Certificates, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer of Certificates.
(d) All Certificates surrendered for registration of Transfer, if
surrendered to the Issuer or any agent of the Owner Trustee or the Issuer under
this Agreement, shall be delivered to the Owner Trustee and promptly cancelled
by it, or, if surrendered to the Owner Trustee, shall be promptly cancelled by
it, and no Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Owner Trustee shall
dispose of cancelled Certificates in accordance with its normal practice.
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Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice that such Certificate has been acquired by a Protected Purchaser, the
Owner Trustee on behalf of the Issuer shall execute and the Owner Trustee or its
authenticating agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of a like tenor and Certificate Percentage Interest. If, after the delivery of
such replacement Certificate or payment of a destroyed, lost or stolen
Certificate, a Protected Purchaser of the original Certificate in lieu of which
such replacement Certificate was issued presents for payment such original
Certificate, the Issuer and the Owner Trustee shall be entitled to recover such
replacement Certificate (or such payment) from the Person to whom such
replacement Certificate was delivered or any Person taking such replacement
Certificate from such Person to whom such replacement Certificate was delivered
or any assignee of such Person, except a Protected Purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the Owner
Trustee in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of ownership in the Issuer, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
(b) Upon the issuance of any replacement Certificate under this
Section, the Issuer may require the payment by the Certificateholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with such issuance and any other reasonable expenses (including the
fees and expenses of the Owner Trustee) related thereto.
(c) Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Certificates duly
issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.06. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of Transfer, the Owner Trustee,
the Certificate Registrar, any Paying Agent and any of their respective agents
may treat the Person in whose name such Certificate is registered in the
Certificate Register (as of the day of determination) as the Certificateholder
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar, any Paying Agent or any of their respective
agents shall be bound by any notice to the contrary.
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Section 3.07. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Master Servicer and the Depositor, or to the Indenture Trustee or the Owner
Trustee, within 15 days after receipt by the Certificate Registrar of a written
request therefor from the Master Servicer, the Depositor or the Indenture
Trustee or the Owner Trustee, as the case may be, a list, in such form as the
requesting party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders, or one or more Certificateholders evidencing not less than
25% of the aggregate Certificate Percentage Interest (hereinafter referred to as
the "Applicants"), apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such Applicants propose to transmit (which shall be deemed to
be a purpose reasonably related to the Applicants' interest in the Issuer), then
the Certificate Registrar shall, within five Business Days after the receipt of
such application, afford such Applicants access during normal business hours to
the current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 3.08. Maintenance of Office or Agency. The Certificate
Registrar shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of Transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of the
Certificates and the Basic Documents may be served. The Certificate Registrar
initially designates the Corporate Trust Office as its office for such purposes.
The Certificate Registrar shall give prompt written notice to the Depositor, the
Owner Trustee and the Certificateholders of any change in the location of the
Certificate Registrar or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Payment Account
pursuant to Section 5.02(a) and shall report the amount of such distributions to
the Owner Trustee. The Paying Agent shall have the revocable power to withdraw
funds from the Certificate Payment Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be the
Indenture Trustee, and any co-paying agent chosen by the Paying Agent that is
acceptable to the Owner Trustee and the Depositor. Each Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' prior written notice to the
Owner Trustee. In the event that the Indenture Trustee shall no longer be the
Paying Agent, the Owner Trustee, upon receipt of written instruction from the
Depositor, shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that, as
Paying Agent, such successor or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums
15
shall be paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner Trustee.
If at any time the Owner Trustee shall act as Paying Agent, the rights,
privileges, protections and indemnities afforded to the Owner Trustee hereunder
shall apply equally to the Owner Trustee in its role as Paying Agent. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
Section 3.10. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Issuer.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Issuer or for any reason whatsoever, and, upon the
authentication thereof by the Owner Trustee pursuant to Section 3.03, 3.04 or
3.05, the Certificates are and shall be deemed fully paid.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to
Certain Matters. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders, the Swap Counterparty and the Rating Agencies,
in writing of the proposed action and the Certificateholders evidencing not less
than 51% of the aggregate Certificate Percentage Interest shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice is
given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Issuer and
the settlement of any action, proceeding, investigation, claim or
lawsuit brought by or against the Issuer, in each case (except claims
or lawsuits for collection by the Master Servicer of the Receivables
brought by the Issuer);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment of the Sale and Servicing Agreement or the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or to add any provision that would
not materially adversely affect the interests of the
Certificateholders;
(f) the amendment of the Swap Agreement (which amendment shall
be made with the consent of the Swap Counterparty and the Noteholders;
provided that the consent of the Noteholders shall not be required for
any amendment to the Swap Agreement that (i) cures any ambiguity in or
corrects any provision of the Swap Agreement and (ii) does not
materially and adversely affect the interests of the Noteholders); or
(g) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee or
Certificate Registrar of its respective obligations under the Indenture
or this Agreement, as applicable.
Section 4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of a Servicer
Termination Event, subsequent to the
17
payment in full of the Notes and in accordance with the written direction of the
Certificateholders evidencing not less than 51% of the aggregate Certificate
Percentage Interest, (i) remove the Master Servicer pursuant to Article Seven of
the Sale and Servicing Agreement, (ii) appoint a Successor Master Servicer
pursuant to Article Seven of the Sale and Servicing Agreement, (iii) remove the
Administrator pursuant to Section 1.09 of the Administration Agreement, (iv)
appoint a successor Administrator pursuant to Section 1.09 of the Administration
Agreement or (v) sell the Receivables after the termination of the Indenture,
except as expressly provided in the Basic Documents.
Section 4.03. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer unless (i) the Notes have been paid in full
and (ii) each Certificateholder approves of such commencement in writing in
advance and delivers to the Owner Trustee a certificate certifying that such
Person reasonably believes that the Issuer is insolvent.
Section 4.04. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to the purposes of the Issuer as set forth
in Section 2.03, nor shall the Owner Trustee be obligated to follow any such
direction, if given.
Section 4.05. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Certificateholders evidencing not less than 51% of the aggregate
Certificate Percentage Interest. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Certificateholders evidencing not less than 51%
of the aggregate Certificate Percentage Interest at the time of the delivery of
such notice.
Section 4.06. Certain Litigation Matters. The Owner Trustee shall
provide prompt written notice to the Depositor, the Seller and the Master
Servicer of any action, proceeding or investigation actually known to a
Responsible Officer of the Owner Trustee that could reasonably be expected to
adversely affect the Issuer or the Owner Trust Estate or their respective rights
or obligations under any of the Basic Documents.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account. Pursuant to
Section 4.01 of the Sale and Servicing Agreement, the Master Servicer has agreed
to establish, on or before the Closing Date, and maintain in the name of the
Owner Trustee at an Eligible Institution (which shall initially be U.S. Bank
National Association) a segregated account designated as the "Wachovia Auto Loan
Owner Trust 2008-1 Certificate Payment Account" (the "Certificate Payment
Account"). The Certificate Payment Account shall be held in trust for the
benefit of the Certificateholders. Except as expressly provided in Section 3.09,
the Certificate Payment Account shall be under the control of the Owner Trustee.
All monies deposited from time to time in the Certificate Payment Account
pursuant to the Sale and Servicing Agreement or the Indenture shall be applied
as provided in this Agreement, the Sale and Servicing Agreement and the
Indenture.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, upon receipt from the Master Servicer of
a distribution statement pursuant to Section 4.10(a) of the Sale and Servicing
Agreement, the Owner Trustee shall (if at any time it is the Paying Agent) or
shall direct the Paying Agent to distribute to the Certificateholders, in
proportion to each Certificateholder's Certificate Percentage Interest, amounts
deposited in the Certificate Payment Account on such Distribution Date pursuant
to Section 4.09 of the Sale and Servicing Agreement and Section 2.08 of the
Indenture.
(b) On each Distribution Date, the Owner Trustee shall (if at any time
it is the Paying Agent), or shall direct the Paying Agent to, send to each
Certificateholder the statement or statements provided to the Owner Trustee by
the Master Servicer pursuant to Section 4.10 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to such Certificateholder in accordance with
this Section. The Owner Trustee and each Paying Agent are hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any such withholding tax
that is legally owed by the Issuer (but such authorization shall not prevent the
Owner Trustee or any Paying Agent from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings, it being understood that neither the Owner
Trustee nor any Paying Agent shall have any duty to contest such amounts). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Issuer and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the Owner
Trustee or any Paying Agent may, but shall not be obligated to, withhold such
amounts in accordance with this Section. If a Certificateholder wishes to apply
for a refund of any such withholding tax, the Owner Trustee and each Paying
Agent shall reasonably cooperate with such Certificateholder in making such
claim so long as such
19
Certificateholder agrees to reimburse the Owner Trustee and each Paying Agent
for any out-of-pocket expenses incurred, as applicable.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the related Record Date by
wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
Business Days prior to such Distribution Date and such Certificateholder is the
Seller or an Affiliate thereof or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the foregoing, the final distribution in
respect of any Certificate (whether on the Final Scheduled Distribution Date or
otherwise) will be payable only upon presentation and surrender of such
Certificate at the office or agency maintained for that purpose by the
Certificate Registrar pursuant to Section 3.08.
Section 5.04. No Segregation of Monies; No Interest. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder (other
than any monies constituting Excluded Property) need not be segregated in any
manner except to the extent required by law, the Indenture, the Sale and
Servicing Agreement or the Swap Agreement and may be deposited under such
general conditions as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
Section 5.05. Accounting and Reports to Noteholders,
Certificateholders, the IRS and Others. The Owner Trustee shall, upon receipt of
and based on information provided by the Seller or the Master Servicer, (i)
maintain (or cause to be maintained) the books of the Issuer on the basis of a
fiscal year ending December 31 and, based on the accrual method of accounting,
(ii) deliver to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable such Certificateholder to prepare its federal and State
income tax returns, (iii) file such tax returns relating to the Issuer
(including a partnership information return, IRS Form 1065, if required) and
make such elections as may from time to time be required or appropriate under
any applicable State or federal statute or rule or regulation thereunder so as
to maintain the Issuer's characterization as a partnership, if so characterized,
for federal income tax purposes, (iv) cause such tax returns to be signed in the
manner required by law and (v) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.02(c) with respect to
income or distributions to Certificateholders. The Owner Trustee, on behalf of
the Issuer, shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee, on behalf of the Issuer, shall not make the election provided
under Section 754 of the Code.
The Owner Trustee may satisfy its obligations with respect to this
Section and Section 5.02(c) by retaining, at the expense of the Seller,
Accountants selected by the Seller. The Owner Trustee may require the
Accountants to provide to the Owner Trustee, on or before December 31, 2008, a
letter in form and substance satisfactory to the Owner Trustee as to whether any
federal tax withholding on Certificates is then required and, if required, the
procedures to be followed with respect thereto to comply with the requirements
of the Code.
20
The Accountants shall be required to update such letter in each instance that
any additional tax withholding is subsequently required or any previously
required tax withholding shall no longer be required. The Owner Trustee shall be
deemed to have discharged its obligations pursuant to this Section and Section
5.02(c) upon its retention of the Accountants, and the Owner Trustee shall not
have any liability with respect to the default, negligence or misconduct of the
Accountants. The Owner Trustee shall be entitled to rely on and shall be fully
protected in so relying, upon the letter, referred to in this paragraph, from
the Accountants and shall have no duty or obligation to verify the accuracy of
the contents of such letter.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign, on behalf of the Issuer, the tax
returns of the Issuer upon receipt of such completed tax returns.
(b) In the event that the Issuer is required to be treated as a
partnership for federal income tax purposes, WDS Receivables, or the Holder of
the greatest Certificate Percentage Interest, in the event that WDS Receivables
no longer owns any Certificates, shall be designated the "tax matters partner"
of the Issuer pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Section 2.03, the Owner Trustee is authorized and directed to
execute and deliver each Basic Document to which the Issuer is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
any Basic Document to which the Issuer is to be a party, in each case in such
form as the Depositor shall approve and provide to the Owner Trustee for
execution, as evidenced conclusively by the Owner Trustee's execution thereof
and the Depositor's execution of this Agreement, and to direct the Indenture
Trustee to authenticate and deliver Notes in the aggregate principal amount of
$598,802,000 (comprised of $107,000,000 aggregate principal amount of 3.9433%
Class A-1 Asset Backed Notes, $30,000,000 aggregate principal amount of 4.04%
Class A-2a Asset Backed Notes, $174,000,000 aggregate principal amount of LIBOR
plus 0.85% Class A-2b Asset Backed Notes, $129,000,000 aggregate principal
amount of 4.27% Class A-3 Asset Backed Notes, $60,000,000 aggregate principal
amount of 4.59% Class A-4 Asset Backed Notes, $22,455,000 aggregate principal
amount of 5.12% Class B Asset Backed Notes, $26,946,000 aggregate principal
amount of 5.89% Class C Asset Backed Notes, $34,431,000 aggregate principal
amount of 7.60% Class D Asset Backed Notes, and $14,970,000 aggregate principal
amount of 9.05% Class E Asset Backed Notes). In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Issuer pursuant to the Basic Documents. Subject to Section 2.03,
the Owner Trustee is further authorized from time to time to take such action on
behalf of the Issuer as is permitted by the Basic Documents and which the
Certificateholders, the Master Servicer or the Administrator recommends in
writing with respect to the Basic Documents, except to the extent that this
Agreement expressly requires the consent of the Certificateholders for such
action.
Section 6.02. General Duties.
(a) Subject to the provisions and limitations of Section 2.03, it shall
be the duty of the Owner Trustee to discharge (or cause to be discharged) all of
its responsibilities pursuant to the terms of this Agreement and each other
Basic Document to which it is a party and to administer the Issuer for the
benefit of the Certificateholders, subject to and in accordance with the Basic
Documents. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged (or caused to be discharged) its duties and responsibilities
hereunder and under the other Basic Documents to the extent the Administrator
has agreed in the Administration Agreement to perform any act or to discharge
any duty of the Owner Trustee or the Issuer hereunder or under any other Basic
Document, and the Owner Trustee shall not be held liable for the default,
negligence or failure of the Administrator to carry out its obligations under
the Administration Agreement. The Owner Trustee shall have no duty or obligation
to oversee the Administrator in the exercise of its duties or obligations under
the Administration Agreement.
(b) The Owner Trustee shall cooperate with the Administrator in
carrying out the Administrator's obligation to qualify and preserve the Issuer's
qualification to do business in each jurisdiction, if any, in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Receivables and any other
instrument
22
and agreement included in the Owner Trust Estate; provided that the Owner
Trustee may rely on advice of counsel with respect to such obligation.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, and in accordance with the terms of the
Basic Documents, the Certificateholders may, by written instruction, direct the
Owner Trustee in the management of the Issuer.
(b) The Owner Trustee shall not be required to take any action under
this Agreement or any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms of this Agreement or any other Basic Document or is otherwise
contrary to law.
(c) Subject to Article Four, whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms
of this Agreement or any other Basic Document, the Owner Trustee shall promptly
give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders of record as of the preceding Record Date, requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction of
the Certificateholders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate written instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) Subject to Article Four, in the event the Owner Trustee is unsure
as to the application of any provision of this Agreement or any other Basic
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is silent
or is incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date, requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate written
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action or
inaction.
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Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the Issuer is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.03; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Lien granted to it hereunder or to prepare or file any
Commission filing for the Issuer or to record this Agreement or any other Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any Liens
(other than the Lien of the Indenture) on any part of the Owner Trust Estate
that result from actions by, or claims against, the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Owner Trust Estate.
Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except in accordance
with (i) the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) the other Basic Documents to which the
Issuer is a party and (iii) any document or written instruction delivered to the
Owner Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
that (i) is inconsistent with the purposes of the Issuer set forth in Section
2.03 or (ii) to the actual knowledge of a Responsible Officer of the Owner
Trustee, would (a) affect the treatment of the Notes as indebtedness for federal
income or State income or franchise tax purposes, (b) be deemed to cause a
taxable exchange of the Notes for federal income or State income or franchise
tax purposes or (c) cause the Issuer or any portion thereof to be taxable as an
association or publicly traded partnership taxable as a corporation for federal
income or State income or franchise tax purposes. The Certificateholders, the
Administrator and the Master Servicer shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.
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ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties. The Owner Trustee accepts the trust
hereby continued and agrees to perform its duties hereunder, but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all monies
actually received by it in accordance with the Basic Documents and constituting
part of the Owner Trust Estate upon the terms of this Agreement. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly made by the Owner
Trustee, in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken in good faith by it in accordance
with the provisions of this Agreement at the instructions of the
Administrator, the Depositor, the Indenture Trustee, the Master
Servicer or the Certificateholders;
(c) no provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any Basic Document,
including the principal of and interest on the Notes or payments to the
Certificateholders;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust
Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the signature and the certificate of
authentication of the Owner Trustee on the Certificates, and the Owner
Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or Certificateholder, other than as
expressly provided for in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default,
negligence or misconduct of the Administrator, the Depositor, any
Certificateholder, the Indenture Trustee, the Master Servicer or the
Seller under any Basic Document or otherwise, and
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the Owner Trustee shall have no obligation or liability to perform the
obligations of the Issuer under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the Indenture
or the Seller, the Master Servicer or the Depositor under the Sale and
Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document,
at the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby, the right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall
not be construed as a duty, and the Owner Trustee shall not be
answerable other than for its negligence, bad faith or willful
misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or any other Basic
Document shall not be construed as a duty, and the Owner Trustee shall
not be answerable other than for its willful misconduct, bad faith or
negligence in the performance of any such act;
(i) the Owner Trustee shall have no responsibility for the
accuracy of any information provided to Certificateholders or any other
individual or entity that has been obtained from, or provided to the
Owner Trustee by, any other Person;
(j) in the absence of negligence or bad faith on its part, the
Owner Trustee may conclusively rely upon certificates or Opinions of
Counsel furnished to the Owner Trustee and conforming to the
requirements of this Agreement in determining the truthfulness of the
statements and the correctness of the opinions contained therein;
provided, however, that the Owner Trustee shall have examined such
certificates or Opinions of Counsel so as to determine compliance of
the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason
of any provision of any present or future law or regulation thereunder,
or by any force majeure event, including natural disaster, war or other
circumstances beyond its reasonable control, the Owner Trustee shall be
prevented from doing or performing any act or thing which the terms of
this Agreement provide shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any directions provided for
herein.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
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Section 7.03. Representations and Warranties. The Owner Trustee, in its
individual capacity, hereby represents and warrants to the Depositor for the
benefit of the Certificateholders, that:
(a) it is a Delaware banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware and meets the eligibility criteria set forth in Section 10.01;
(b) it has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
(c) it has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf; and
(d) neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby, nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of any
lien, charge or encumbrance on the Owner Trust Estate pursuant to the
provisions of any mortgage, indenture, contract, agreement or
undertaking to which it is a party (other than the Basic Documents),
which lien, charge or encumbrance could reasonably be expected to have
a materially adverse effect on the Owner Trustee's performance or
ability to perform its duties as trustee under this Agreement or on the
transactions contemplated in this Agreement.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee may rely upon, shall be protected in relying upon
and shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond
or other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties and need not investigate any fact or
matter in any such document as long as the Owner Trustee has otherwise satisfied
its obligations under this Agreement (nothing in this sentence shall be
construed to relieve the Owner Trustee of any obligation it may have in this
Agreement, including the obligations set forth in Section 7.01). The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any Vice President or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
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(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee may (i) act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care and (ii) consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons and not contrary to this Agreement or
any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as otherwise
provided in this Article, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the signature
and the certificate of authentication of the Owner Trustee on the Certificates)
shall be taken as the statements of the Depositor, and the Owner Trustee assumes
no responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Basic Document, the Certificates (other than the signature and the certificate
of authentication of the Owner Trustee on the Certificates and the
representations and warranties in Section 7.03) or the Notes, or of any
Receivable or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any security
interest created by any Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Owner Trust Estate or its ability to generate the payments to be distributed
to the Certificateholders under this Agreement or to the Noteholders under the
Indenture, including the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Issuer or of
any intervening assignment; the completeness of any Receivable; the performance
or enforcement of any Receivable; the compliance by the Depositor, the Seller or
the 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 any action of the Administrator, the Indenture Trustee or the
Master Servicer taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become a Certificateholder
or Noteholder or pledgee of Certificates or Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee, the Seller and the Master
Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
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Section 7.08. Paying Agent; Authenticating Agent. The rights and
protections afforded to the Owner Trustee pursuant to this Article and Sections
8.02, 10.02 and 10.03 shall also be afforded to each Paying Agent, any
authenticating agent and the Certificate Registrar.
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Master Servicer and
the Owner Trustee, and upon the formation of the Issuer, the Owner Trustee shall
be entitled to be reimbursed, except as otherwise provided in the Basic
Documents, by the Master Servicer for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 8.02. Indemnification. Wachovia Bank shall be liable as prime
obligor for, and shall indemnify the Indemnified Parties from and against, any
and all Expenses, which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any other Indemnified Party in any way relating to
or arising out of this Agreement, the other Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder; provided, however, that Wachovia Bank shall not
be liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01. In no event will Wachovia Bank or the Owner Trustee be
entitled to make any claim upon the Owner Trust Estate for the payment or
reimbursement of any Expenses. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of Wachovia Bank, which approval
shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Article Eight) shall
terminate and be of no further force or effect and the Issuer shall dissolve
upon the earlier of (i) the payment to the Master Servicer, the Paying Agent,
the Owner Trustee, the Indenture Trustee, the Swap Counterparty, the Noteholders
and the Certificateholders of all amounts required to be paid to them pursuant
to the terms of the Indenture, the Sale and Servicing Agreement, the Swap
Agreement and Article Five, (ii) the Distribution Date next succeeding the month
which is one year after the maturity or other liquidation of the last Receivable
and the disposition of any amounts received upon liquidation of any property
remaining in the Issuer or (iii) upon the purchase of the Receivables by the
Seller in connection with an Optional Purchase and retirement of the Notes and
Certificates. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder shall not (A) operate to terminate this Agreement or the
Issuer, (B) entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Issuer or the Owner Trust
Estate or (C) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Issuer.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Master Servicer, stating (i) the Distribution Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Paying Agent
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable and
that payments are being made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee), the Paying Agent and the Swap Counterparty at the time such
notice is given to Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders, subject to Section 3808 of the Statutory Trust Statute,
amounts distributable on such Distribution Date pursuant to Section 5.02.
(d) In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take
31
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Subject to
applicable escheat laws, any funds remaining in the Issuer after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Seller, as
Certificateholder.
(e) Upon the winding up of the Issuer, in accordance with Section 3808
of the Statutory Trust Statute, and its termination, the Owner Trustee, acting
pursuant to the written instructions of the Depositor, which instructions shall
certify that the winding up of the Issuer has been duly completed in accordance
with this Article, shall cause the Certificate of Trust to be cancelled by
filing a certificate of cancellation with the Secretary of State in accordance
with Section 3810(d) of the Statutory Trust Statute.
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ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times (i) be authorized to exercise corporate trust powers, (ii)
have a combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or State authorities and (iii) have (or
have a parent that has) a long-term debt rating of investment grade by each of
the Rating Agencies or otherwise be acceptable to each of the Rating Agencies.
If such entity shall publish reports of condition at least annually pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in the
manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Administrator and
the Depositor, and will provide to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under the Exchange Act with respect to the resignation of the Owner Trustee.
Upon receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee acceptable to the Depositor by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
(b) If at any time the Owner Trustee shall: (i) cease to be eligible in
accordance with Section 10.01 and shall fail to resign after written request
therefor by the Administrator, or if at any time the Owner Trustee shall be
legally unable to act; (ii) 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; (iii) fail to
comply with any of its obligations under Section 10.02, Section 10.04 or Section
11.03 of this Agreement, during the period that the Depositor is required to
file Exchange Act Reports with respect to the Issuer and such failure is not
remedied within the lesser of ten calendar days and the period of time in which
the related Exchange Act Report is required to be filed (without taking into
account any extensions) or (iv) otherwise become incapable of acting, then the
Administrator or the Depositor may remove the Owner Trustee. If the
Administrator or Depositor shall remove the Owner Trustee under the authority of
the immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee acceptable to the Depositor by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one
33
copy to the successor Owner Trustee, and shall pay all fees and expenses owed to
the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency that has
provided ratings of the Notes, the Depositor, the Certificateholders, the Swap
Counterparty and the Indenture Trustee.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement and deliver to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under the Exchange Act with respect to the successor Owner
Trustee, and thereupon, subject to the payment of all fees and expenses owed to
the predecessor Owner Trustee, the resignation or removal of the predecessor
Owner Trustee shall become effective, and such successor Owner Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement and the Administrator and the predecessor Owner Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor Owner
Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Any successor Owner Trustee appointed pursuant to this Section shall
file an amendment to the Certificate of Trust with the Secretary of State
reflecting the name and principal place of business of such successor in the
State of Delaware.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders, the Swap
Counterparty and each Rating Agency that has provided ratings of the Notes. If
the Administrator shall fail to mail such notice within ten days after
acceptance of such appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
Section 10.04. Merger or Consolidation of Owner Trustee.
(a) If the Owner Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another entity, the resulting, surviving or
34
transferee corporation or banking association without any further act, except
the filing of an amendment to the Certificate of Trust, if required under the
Statutory Trust Statute, shall be the successor Owner Trustee; provided,
however, that such corporation or banking association must be otherwise
qualified and eligible under Section 10.01. The Owner Trustee shall (i) provide
the Rating Agencies that have provided ratings of the Notes with written notice
as soon as practicable after a public announcement is made regarding any such
transaction, (ii) file an amendment to the Certificate of Trust as required by
Section 9.03 (if required under the Statutory Trust Statute) and (iii) provide
the Depositor in writing and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under the Exchange Act with respect to the
successor Owner Trustee.
(b) If any of the Certificates shall have been authenticated but not
delivered at the time such successor or successors by consolidation, merger or
conversion to the Owner Trustee shall succeed to the trusts created by this
Agreement, any such successor to the Owner Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Certificates so
authenticated. If any of the Certificates shall not have been authenticated upon
such succession, any such successor to the Owner Trustee may authenticate such
Certificates either in the name of any predecessor trustee or in the name of the
successor to the Owner Trustee. In all such cases such certificates shall have
the full force which the Certificates or this Agreement provide that the
certificate of the Owner Trustee shall have.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such Person, in such capacity
and for the benefit of the Certificateholders, such title to the Owner Trust
Estate or any part thereof and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Administrator and the
Owner Trustee may consider necessary or desirable. If the Administrator shall
not have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor Owner Trustee pursuant
to Section 10.01, except that such co-trustee or successor trustee shall have
the Required Rating or otherwise be acceptable to each Rating Agency, and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
35
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Owner Trust
Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be 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.
36
ARTICLE ELEVEN
REGULATION AB
Section 11.01. Intent of the Parties; Reasonableness. The Depositor and
the Owner Trustee acknowledge and agree that the purpose of this Article Eleven
is to facilitate compliance by the Depositor with the provisions of Regulation
AB and related rules and regulations of the Commission. The Depositor shall not
exercise its right to request delivery of information or other performance under
these provisions other than in good faith, or for purposes other than the
Depositor's compliance with the Securities Act, the Exchange Act and the rules
and regulations of the Commission thereunder (or the provision in a private
offering of disclosure comparable to that required under the Securities Act).
The Owner Trustee agrees to cooperate in good faith with any reasonable request
by the Depositor for information regarding the Owner Trustee which is required
in order to enable the Depositor to comply with the provisions of Regulation AB,
including Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB as it relates
to the Owner Trustee or to the Owner Trustee's obligations under this Agreement.
Section 11.02. Representations and Warranties. The Owner Trustee
represents that:
(i) there are no affiliations, relating to the Owner Trustee with
respect to any Item 1119 Party;
(ii) there are no relationships or transactions with respect to any
Item 1119 Party and the Owner Trustee that are outside the ordinary course of
business or on terms other than would be obtained in an arm's-length transaction
with an unrelated third party, apart from the transactions contemplated under
the Basic Documents, and that are material to the investors' understanding of
the Notes; and
(iii) there are no legal proceedings pending, or known to be
contemplated by governmental authorities, against the Owner Trustee, or of which
the property of the Owner Trustee is subject, that is material to the
Noteholders.
Section 11.03. Information to Be Provided by the Owner Trustee.
(a) For so long as the Depositor is required to report under Regulation
AB, the Owner Trustee shall, as promptly as practicable, notify the Depositor,
in writing, of: (i) the commencement of, a material development in or, if
applicable, the termination of, any and all legal proceedings against the Owner
Trustee or any and all proceedings of which any property of the Owner Trustee is
the subject, that is material to the noteholders; and (ii) any such proceedings
known to be contemplated by governmental authorities. The Owner Trustee shall
also notify the Depositor, in writing, as promptly as practicable following
notice to or discovery by a Responsible Officer of the Owner Trustee of any
material changes to proceedings described in the preceding sentence. In
addition, the Owner Trustee will furnish to the Depositor, in writing, the
necessary disclosure regarding the Owner Trustee describing such proceedings
required to be disclosed under Item 1117 of Regulation AB, for inclusion in
reports filed by or on behalf of the Depositor pursuant to the Exchange Act.
37
(b) For so long as the Depositor is required to report under Regulation
AB, the Owner Trustee shall (i) on or before the fifth Business Day of each
January, April, July and October, provide to the Depositor such information
regarding the Owner Trustee as is required for the purpose of compliance with
Items 1109(a), 1109(b) and 1119 of Regulation AB; provided, however, the Owner
Trustee shall not be required to provide such information in the event that
there has been no change to the information previously provided by the Owner
Trustee to the Depositor; and (ii) as promptly as practicable following notice
to or discovery by a Responsible Officer of the Owner Trustee of any changes to
such information, provide to the Depositor, in writing, such updated
information. Such information shall include, at a minimum:
(A) the Owner Trustee's name and form of
organization;
(B) a description of the extent to which the Owner
Trustee has had prior experience serving as a trustee for
asset-backed securities transactions involving auto finance
receivables;
(C) a description of any affiliation between the
Owner Trustee and any of the following parties to a
Securitization Transaction, as such parties are identified to
the Owner Trustee by the Depositor in writing in advance of
such Securitization Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any master servicer or subservicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any
Securitization Transaction.
In addition, the Owner Trustee shall provide a description of whether
there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner Trustee
and any above-listed party that is entered into outside the ordinary course of
business or is on terms other than would be obtained in an arm's-length
transaction with an unrelated third party, apart from the Securitization
Transactions, that currently exists or that existed during the past two years
and that is material to an investor's understanding of the Notes.
38
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time by the Depositor
and the Owner Trustee with prior written notice to the Rating Agencies and to
the Swap Counterparty, without the consent of any of the Noteholders or the
Certificateholders, (i) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision herein or in
any offering document used in connection with the initial offer and sale of the
Notes or the Certificates and (ii) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
which will not be inconsistent with other provisions of this Agreement;
provided, however, that no such amendment (i) may materially adversely affect
the interests of any Noteholder or Certificateholder and (ii) will be permitted
unless an Opinion of Counsel is delivered to the Owner Trustee to the effect
that such amendment will not cause the Issuer to be characterized for federal
income tax purposes as an association or publicly-traded partnership taxable as
a corporation or otherwise have any material adverse impact on the federal
income taxation of any Notes Outstanding or outstanding Certificates.
(b) This Agreement may be amended from time to time by the Depositor
and the Owner Trustee with prior written notice to the Rating Agencies and with
the consent of the Noteholders of Notes evidencing not less than 51% of the Note
Balance or, if the Notes have been paid in full, the Certificateholders
evidencing not less than 51% of the aggregate Certificate Percentage Interest,
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Agreement or modifying in any manner
the rights of the Noteholders or the Certificateholders; provided, however, that
no such amendment will be permitted unless an Opinion of Counsel is delivered to
the Owner Trustee to the effect that such amendment will not cause the Issuer to
be characterized for federal income tax purposes as an association or a publicly
traded partnership taxable as a corporation or otherwise have any material
adverse impact on the federal income taxation of any Notes Outstanding or
outstanding Certificates; and, provided further, that no such amendment may:
(i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, or change the allocation or priority
of, collections of payments on or in respect of the Receivables or
distributions that are required to be made for the benefit of the
Noteholders or the Certificateholders without the consent of all
Noteholders and Certificateholders adversely affected by such
amendment;
(ii) reduce the percentage of the Note Balance or the
percentage of the aggregate Certificate Percentage Interest the consent
of the Noteholders or Certificateholders, as applicable, of which is
required for any amendment to this Agreement without the consent of all
the Noteholders and Certificateholders adversely affected by the
amendment; or
39
(iii) adversely affect the rating assigned by any Rating
Agency that has provided ratings of the Notes, to any Class of Notes
without the consent of the Noteholders evidencing not less than 66?% of
the Note Balance of such Class of Notes.
(c) An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if (i) the
Person requesting such amendment obtains and delivers to the Owner Trustee an
Opinion of Counsel to that effect or (ii) the Rating Agency Condition is
satisfied.
(d) Prior to the execution of any such amendment or consent, the Owner
Trustee shall deliver a copy of such proposed amendment or consent to the Swap
Counterparty. Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Depositor shall furnish
(i) written notice of the substance of such amendment or consent to the
Indenture Trustee and the Rating Agencies and (ii) a copy of such amendment or
consent to the Swap Counterparty.
(e) It shall not be necessary for the consent of the
Certificateholders, the Noteholders, the Swap Counterparty or the Indenture
Trustee pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(f) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall file such amendment or cause such amendment to be
filed with the Secretary of State.
(g) The Owner Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's own rights, duties,
liabilities or immunities under this Agreement or otherwise.
(h) Prior to the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Issuer is a party, the Owner
Trustee shall be entitled to receive and shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent in
this Agreement to the execution and delivery of such amendment have been
satisfied.
Section 12.02. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided beneficial interest
therein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their beneficial interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Owner Trust Estate.
40
Section 12.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Indemnified
Parties, the Depositor, the Certificateholders, the Administrator, the Master
Servicer and, to the extent expressly provided herein, the Indenture Trustee,
the Swap Counterparty and the Noteholders, and nothing in this Agreement or in
the Certificates, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 12.04. Notices. All demands, notices and other communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, or where electronic delivery is applicable and requested, shall be
delivered by electronic delivery, and shall be deemed to have been duly given
upon receipt in the case of (i) the Owner Trustee, at the Corporate Trust
Office, (ii) the Depositor, at 000 Xxxx Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000, (iii) the Indenture Trustee, at the Corporate Trust Office (as
defined in the Indenture), (iv) the Swap Counterparty, to Wachovia Bank,
National Association, 000 Xxxxx Xxxxxxx Xxxxxx XX0000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Derivatives Documentation, (v) Fitch, to Fitch Ratings, 0
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Auto ABS Group (email:
Xxxxxxxxxxxx-xxxx-xxx@xxxxxxxxxxxx.xxx), (vi) Moody's, at Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 7 World Trade Center, 25th Floor, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (e-mail: XxxxxxxxXxxxxxx@Xxxxxx.xxx),
(vii) Standard & Poor's, to Standard & Poor's, a Division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance Department (e-mail: Xxxxxxxx_xxxxxxx@xxxxx.xxx) or (viii) as
to each of the foregoing, at such other address as shall be designated by
written notice to the other entities whose addresses are listed in this Section.
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder shall receive such
notice.
Section 12.05. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement or the Certificates shall be
for any reason whatsoever held invalid, illegal or unenforceable, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and the
Certificates and shall in no way affect or impair the validity or enforceability
of the other covenants, agreements, provisions and terms of this Agreement or of
the Certificates or the rights of the Certificateholders.
Section 12.06. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 12.07. Successors and Assigns. All covenants and agreements
contained herein and in the Certificates shall be binding upon, and inure to the
benefit of, each of the Depositor, the Owner Trustee, and each Certificateholder
and their respective successors and permitted assigns, all as herein provided.
Any request, notice, direction, consent, waiver or other
41
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 12.08. Covenants of the Depositor. The Depositor shall not at
any time institute against the Issuer, or join in any institution against the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
State bankruptcy or similar law in connection with any obligations relating to
the Certificates, the Notes, this Agreement or any of the other Basic Documents.
Section 12.09. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate or a beneficial interest therein,
the Indenture Trustee, the Swap Counterparty and each Noteholder, by accepting
the benefits of this Agreement, hereby covenant and agree that they will not at
any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any United States federal or State bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes, this
Agreement or any other Basic Document.
Section 12.10. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that the Certificates represent beneficial interests in
the Issuer only and do not represent interests in or obligations of the
Depositor, the Seller, the Master Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in the Certificates, this Agreement or any
other Basic Document.
Section 12.11. Headings. The Article and Section headings and the Table
of Contents herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
Section 12.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.13. Servicer Payment Obligation. The Master Servicer shall
be responsible for the payment of all fees and expenses of the Issuer, the Owner
Trustee and the Indenture Trustee paid by any of them in connection with any of
their obligations under the Basic Documents to obtain or maintain or cause to be
obtained or maintained any required license under the (i) Maryland Vehicle Sales
Finance Act or (ii) Pennsylvania Motor Vehicle Sales Finance Act.
Section 12.14. Obligations with Respect to the Swap Counterparty. Any
obligations or duties owed to, or rights of, the Swap Counterparty hereunder,
including the right of the Swap Counterparty to consent to, or receive notice
of, any actions hereunder shall terminate upon
42
payment in full of the Class A-2b Notes and payment of all amounts owed to the
Swap Counterparty under the Swap Agreement.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers, thereunto duly authorized, as of the
day and year first above written.
WDS RECEIVABLES LLC,
as Depositor
By:/s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Financial Services Officer
Agreed and Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: /s/ Xxxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A
THIS ASSET BACKED CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE NOTES TO THE EXTENT DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING
AGREEMENT AND THE INDENTURE REFERRED TO HEREIN.
THIS ASSET BACKED CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
THIS ASSET BACKED CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN
OBLIGATION OF WDS RECEIVABLES LLC, WACHOVIA DEALER SERVICES, INC. OR ANY OF
THEIR RESPECTIVE AFFILIATES.
THIS ASSET BACKED CERTIFICATE MAY NOT BE ACQUIRED BY OR WITH PLAN
ASSETS OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT
TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
REGISTERED NO. R-1
WACHOVIA AUTO LOAN OWNER TRUST 2008-1
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of Wachovia
Auto Loan Owner Trust 2008-1, a Delaware statutory trust (the
"Issuer"), which property includes a pool of retail
installment sale contracts and installment loans secured by
new and used motor vehicles sold by Wachovia Dealer Services,
Inc., a California corporation ("Wachovia Dealer Services"),
to WDS Receivables LLC ("WDS Receivables"), a Nevada limited
liability company (the "Depositor"), and sold by the Depositor
to the Issuer. The property of the Issuer (other than the
Certificate Payment Account and the proceeds thereof) has been
pledged by the Issuer to U.S. Bank National Association, a
national banking association, as trustee (the "Indenture
Trustee"), pursuant to an indenture, dated as of January 1,
2008 (as amended, restated, supplemented or otherwise modified
from time to time, the "Indenture"), between the Issuer and
the Indenture Trustee, to secure the payment of the Notes
issued thereunder.
This certifies that WDS Receivables is the registered owner of a 100%
Certificate Percentage Interest nonassessable, fully paid, beneficial interest
in the Issuer. The Issuer was created pursuant to a trust agreement dated August
21, 2007, between the Depositor and Wilmington Trust Company, as trustee (in
such capacity, and not in its individual capacity, the "Owner Trustee"), as
further amended and restated by the amended and restated trust agreement, dated
as of January 1, 2008 (as amended, restated, supplemented or otherwise modified
from time to time, the "Trust Agreement"), between the Depositor and the Owner
Trustee, a summary of certain of the pertinent provisions of which is set forth
below. Capitalized terms used herein
A-1
that are not otherwise defined shall have the meanings ascribed in the Trust
Agreement, the Indenture or in the sale and servicing agreement, dated as of
January 1, 2008 (as amended, restated, supplemented or otherwise modified from
time to time, the "Sale and Servicing Agreement"), among the Issuer, the
Depositor, Wachovia Dealer Services, as seller (in such capacity, the "Seller")
and Wachovia Bank, National Association, as master servicer (the "Master
Servicer").
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
registered holder of this Certificate (the "Certificateholder") by virtue of the
acceptance hereof assents and by which such Certificateholder is bound. The
property of the Issuer primarily includes: (i) a pool of retail installment sale
contracts and installment loans originated in connection with the sale of new or
used motor vehicles (the "Receivables"), (ii) all amounts received on or in
respect of the Receivables after the Cutoff Date, (iii) the security interests
in the Financed Vehicles granted by the Obligors pursuant to the Receivables and
(iv) all proceeds of the foregoing.
THE RIGHTS OF THE ISSUER IN THE FOREGOING PROPERTY OF THE ISSUER (OTHER
THAN THE CERTIFICATE PAYMENT ACCOUNT AND THE PROCEEDS THEREOF) HAVE BEEN PLEDGED
TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Pursuant to the Trust Agreement, there will be distributed on each
Distribution Date to the Person in whose name this Certificate is registered at
the close of business on the Business Day preceding such Distribution Date such
Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such Distribution Date. "Distribution Date"
means the 20th day of each month or, if such 20th day is not a Business Day, the
following Business Day, commencing on March 20, 2008.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS
TO RECEIVE DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARE SUBORDINATED TO THE
RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND
SERVICING AGREEMENT AND THE INDENTURE.
It is the intent of the Depositor, the Seller, the Master Servicer and
the Certificateholders that, for purposes of federal income taxes, State and
local income taxes and any other income taxes the Issuer will be treated as
either an entity that is disregarded as separate from the beneficial owner of
the equity in the Issuer if there is only one such owner, or as a partnership
(other than an association or publicly traded partnership) if there are two or
more such owners. The Depositor and any other Certificateholders, by acceptance
of a Certificate, agree with the foregoing characterization of the Certificates
for such tax purposes and further agree to take no action inconsistent
therewith.
Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest therein, covenants and agrees that such Certificateholder
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
A-2
proceedings under any United States federal or State bankruptcy or similar law
in connection with any obligations relating to the Notes, the Certificates, the
Trust Agreement or any other Basic Document.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Owner Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency of the Certificate
Registrar maintained for that purpose in Wilmington, Delaware.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if fully set forth on the face of this Certificate.
Unless the certificate of authentication hereon has been executed by an
authorized officer of the Owner Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Trust Agreement or
the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not
in its individual capacity, has caused this Certificate to be duly executed as
of the date set forth below.
Dated: January 24, 2008 WACHOVIA AUTO LOAN OWNER TRUST 2008-1,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: _____________________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated: January 24, 2008 WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: _____________________________________
Name:
Title:
A-4
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an interest
in, the Depositor, the Seller, the Master Servicer, the Administrator, the Owner
Trustee or any of their respective Affiliates, and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein, in the Trust Agreement or in the other Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Indenture and the Sale and Servicing Agreement.
The Trust Agreement permits the Depositor and the Owner Trustee, on
behalf of the Issuer, with certain exceptions therein provided, to amend from
time to time certain terms and conditions set forth in the Trust Agreement
without the consent of the Certificateholders. The Trust Agreement also permits
the Depositor and the Owner Trustee, on behalf of the Issuer, with certain
exceptions as therein provided, to amend certain terms and conditions set forth
in the Trust Agreement with the consent of the Noteholders evidencing not less
than 51% of the Note Balance and the Certificateholders evidencing not less than
51% of the aggregate Certificate Percentage Interest. Any such consent by the
Certificateholder shall be conclusive and binding on such Certificateholder and
on all future Certificateholders and of any Certificate issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate may be registered in the
Certificate Register upon surrender of this Certificate for registration of
Transfer at the Corporate Trust Office and a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates in any
authorized denomination and in the same aggregate Certificate Percentage
Interest in the Issuer will be issued to the designated transferee or
transferees. No service charge shall be made for any registration of Transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection therewith. The initial Certificate Registrar
appointed under the Trust Agreement is the Owner Trustee.
Each Certificateholder, by its acceptance of a Certificate, shall be
deemed to have represented and warranted that such Certificateholder is not an
(i) employee benefit plan or arrangement subject to Title I of ERISA, a plan
subject to Section 4975 of the Code or any entity whose underlying assets
include plans assets by reason of a plan's investment in the entity (a "Benefit
Plan"), nor a person acting on behalf of a Benefit Plan nor using the assets of
a Benefit Plan to effect the transfer of such Certificate, or (ii) insurance
company purchasing a Certificate with funds contained in an "insurance company
general account" (as defined in Section V(e) of PTCE 95-60) that includes the
assets of a Benefit Plan for purposes of the Plan Asset Regulation.
Any Person who is not an Affiliate of the Seller and acquires more than
49.9% of the Certificates will be deemed to represent that it is not a party in
interest (within the meaning of ERISA) or a disqualified person (within the
meaning of Section 4975(e)(2) of the Code) with
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respect to any Benefit Plan, other than a Benefit Plan that it sponsors for the
benefit of its employees, and that no Benefit Plan with respect to which it is a
party in interest has or will acquire any interest in the Notes.
The Certificates are issuable only in registered form in denominations
as provided in the Trust Agreement, subject to certain limitations therein set
forth.
The Owner Trustee, the Certificate Registrar and any Paying Agent may
treat the Person in whose name this Certificate is registered in the Certificate
Register (as of the day of determination) as the owner of this Certificate for
the purpose of receiving distributions pursuant to the Trust Agreement and for
all other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar or any Paying Agent shall be bound by any notice to the contrary.
The Trust Agreement, with certain exceptions therein provided, shall
terminate and be of no further force or effect and the Issuer shall dissolve
upon the earlier of (i) the payment to the Master Servicer, the Paying Agent,
the Owner Trustee, the Indenture Trustee, the Swap Counterparty, the Noteholders
and the Certificateholders of all amounts required to be paid to them pursuant
to the terms of the Indenture, the Sale and Servicing Agreement, the Swap
Agreement and the Trust Agreement, (ii) the Distribution Date next succeeding
the month which is one year after the maturity or other liquidation of the last
Receivable and the disposition of any amounts received upon liquidation of any
property remaining in the Issuer or (iii) upon the purchase of the Receivables
by the Seller in connection with an Optional Purchase and retirement of the
Notes and Certificates.
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ASSIGNMENT
SOCIAL SECURITY NUMBER
OR OTHER IDENTIFICATION
NUMBER OF ASSIGNEE: ________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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(name and address of assignee)
the within Certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ________________________, attorney, to transfer said
Certificate on the Certificate Register, with full power of substitution in the
premises.
Dated:
________________________________________*/
Signature Guaranteed:
________________________________________*/
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Certificate
Registrar.
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EXHIBIT B
CERTIFICATE OF TRUST OF
WACHOVIA AUTO LOAN OWNER TRUST 2008-1
This Certificate of Trust of Wachovia Auto Loan Owner Trust 2008-1 (the
"Trust"), is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, as trustee (the "Trustee"), to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. Code, ss. 3801 et seq.)
(the "Act").
1. Name. The name of the statutory trust formed hereby is Wachovia Auto
Loan Owner Trust 2008-1.
2. Delaware Trustee. The name and business address of a trustee of the
Trust having its principal place of business in the State of Delaware is
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust in accordance with Section 3811 of
the Act.
WILMINGTON TRUST COMPANY,
as Trustee
By:_____________________________
Name:
Title:
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