EXHIBIT 4.1
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AMENDED AND RESTATED TRUST AGREEMENT
between
BEAR XXXXXXX ASSET BACKED FUNDING II INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of November 9, 2004
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name........................................................................................1
SECTION 2.2. Offices.....................................................................................1
SECTION 2.3. Purposes and Powers.........................................................................1
SECTION 2.4. Appointment of Owner Trustee................................................................2
SECTION 2.5. Capital Contribution of Owner Trust Estate..................................................2
SECTION 2.6. Declaration of Trust........................................................................2
SECTION 2.7. Liability of the Depositor and the Certificateholders.......................................3
SECTION 2.8. Title to Trust Property.....................................................................3
SECTION 2.9. Situs of Trust..............................................................................3
SECTION 2.10. Representations and Warranties of the Depositor.............................................3
SECTION 2.11. Federal Income Tax Matters..................................................................4
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership................................................................5
SECTION 3.2. The Certificates............................................................................5
SECTION 3.3. Authentication of Certificates..............................................................5
SECTION 3.4. Registration of Certificates; Transfer and Exchange of Certificates Limitations on
Transfer.................................................................................6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates...........................................7
SECTION 3.6. Persons Deemed Owners of Certificates.......................................................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses...................................8
SECTION 3.8. Maintenance of Office or Agency.............................................................8
SECTION 3.9. Appointment of Certificate Paying Agent.....................................................9
SECTION 3.10. Definitive Certificates.....................................................................9
SECTION 3.11. Authenticating Agents.......................................................................9
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain Matters.........................10
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters...............................11
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SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy....................................11
SECTION 4.4. Restrictions on Certificateholders' Power..................................................11
SECTION 4.5. Majority Control...........................................................................11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account..........................................11
SECTION 5.2. Application of Trust Funds.................................................................12
SECTION 5.3. Method of Payment..........................................................................12
SECTION 5.4. No Segregation of Monies; No Interest......................................................12
SECTION 5.5. Accounting and Reports to Noteholders, Certificateholders, Internal Revenue
Service and Others......................................................................13
SECTION 5.6. Signature on Returns; Tax Matters Partner..................................................13
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority..........................................................................13
SECTION 6.2. General Duties.............................................................................14
SECTION 6.3. Action upon Instruction....................................................................14
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions.........................15
SECTION 6.5. No Action Except Under Specified Documents or Instructions.................................15
SECTION 6.6. Restrictions...............................................................................15
SECTION 6.7. Acceptance of Trusts and Duties............................................................16
SECTION 6.8. Furnishing of Documents....................................................................17
SECTION 6.9. Representations and Warranties.............................................................17
SECTION 6.10. Reliance; Advice of Counsel................................................................17
SECTION 6.11. Not Acting in Individual Capacity..........................................................18
SECTION 6.12. Owner Trustee Not Liable for Certificates or Receivables...................................18
SECTION 6.13. Owner Trustee May Own Certificates and Notes...............................................18
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses..........................................................19
SECTION 7.2. Payments to Owner Trustee..................................................................19
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust...................................................................19
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.................................................20
SECTION 9.2. Resignation or Removal of Owner Trustee....................................................21
SECTION 9.3. Successor Owner Trustee....................................................................21
SECTION 9.4. Merger or Consolidation of Owner Trustee...................................................22
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee..............................................22
SECTION 9.6. Compliance with Statutory Trust Statute....................................................23
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments.................................................................23
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholders.................................25
SECTION 10.3. Limitation on Rights of Others.............................................................25
SECTION 10.4. Notices....................................................................................25
SECTION 10.5. Severability...............................................................................26
SECTION 10.6. Separate Counterparts......................................................................26
SECTION 10.7. Successors and Assigns.....................................................................26
SECTION 10.8. No Petition................................................................................26
SECTION 10.9. No Recourse................................................................................26
SECTION 10.10. Headings...................................................................................26
SECTION 10.11. GOVERNING LAW..............................................................................26
SECTION 10.12. Subordination Agreement....................................................................27
SECTION 10.13. Rule 144A Information......................................................................27
EXHIBIT A FORM OF CERTIFICATE.......................................................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST..............................................................B-1
EXHIBIT C FORM OF TRANSFEROR CERTIFICATE............................................................C-1
EXHIBIT D FORM OF INVESTMENT LETTER.................................................................D-1
EXHIBIT E FORM OF RULE 144A LETTER..................................................................E-1
APPENDIX A Definitions and Usage....................................................................AA-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 9, 2004
(as from time to time amended, supplemented or otherwise modified and in
effect, this "Agreement"), between BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
a Delaware corporation, as Depositor, having its principal office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and WILMINGTON TRUST COMPANY, a
Delaware banking corporation ("Wilmington"), not in its individual capacity
but solely as trustee under this Agreement (in such capacity, the "Owner
Trustee"), having its principal corporate trust office at 0000 Xxxxxx Xxxxxx
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 for the
purpose of establishing the Whole Auto Loan Trust 2004-1.
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of October 8, 2004, between the Depositor and the
Owner Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined
in Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as
"Whole Auto Loan Trust 2004-1", in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2. Offices. The office of the Trust shall be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
the State of Delaware as the Owner Trustee may designate by written notice to
the Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust
is, and the Trust shall have the power and authority, to engage in the
following activities:
(i) to acquire, hold and manage the Trust Property;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes and the
Certificates upon the written order of the Depositor;
(iii) in exchange for the Notes and the Certificates or the proceeds
thereof, to purchase the Receivables, to pay the organizational, start-up
and transactional expenses of the Trust, and to pay the balance to the
Depositor pursuant to the Sale and Servicing Agreement;
(iv) to pay interest on and principal of the Notes and distributions
on the Certificates;
(v) to Grant the Owner Trust Estate (other than the Certificate
Distribution Account and the proceeds thereof) to the Indenture Trustee
pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Deposit
Account Agreements and the Basic Documents to which it is to be a party;
(vii) 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
(viii) 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 interest and principal
payments to the Noteholders and distributions to the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Upon the execution
of this Agreement, the Owner Trustee shall continue as trustee of the Trust,
to have all the rights, powers and duties set forth herein.
SECTION 2.5. Capital Contribution of Owner Trust Estate. As of
October 8, 2004, the Depositor sold, assigned and transferred to the Owner
Trustee the sum of $1. The Owner Trustee hereby acknowledges receipt in trust
from the Depositor, as of such date, the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay the organizational
expenses of the Trust as they may arise or shall, upon the request of the
Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid
by the Owner Trustee. On the Closing Date, the Depositor shall convey to the
Trust the Trust Property and the Owner Trustee shall cause the delivery to or
upon the order of the Depositor the Notes and the Certificates.
SECTION 2.6. 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 Trust under the Basic
Documents. It is the intention of the parties hereto that (i) the Trust
constitute a statutory trust under the Statutory Trust Statute and that this
Agreement constitute the governing instrument of such statutory trust and (ii)
for federal, state and local income and franchise tax purposes, the Trust
shall be treated as a grantor trust of the type described in Treasury
Regulation ss.301.7701-
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4(c), with the assets of the Trust being the Receivables and other assets held
by the Trust, and the Notes being non-recourse debt of the Certificateholders,
provided that if the Trust is not properly characterized as a grantor trust of
the type described in Treasury Regulation ss.301.7701-4(c) (i.e., if one or
more classes of Notes are treated as equity in the Trust for federal income
tax purposes), the Trust shall be treated for federal, state and local income
and franchise tax purposes as a partnership (other than an association or
publicly traded partnership), with the assets of the partnership being the
Receivables and other assets held by the Trust, the partners of the
partnership being the Certificateholders and the holders of the Notes that are
treated as equity in the Trust, and the remaining Notes constituting
indebtedness of the partnership. The parties agree that, unless otherwise
required by the appropriate tax authorities, the Trust will file or cause to
be filed annual or other necessary returns, reports and other forms consistent
with the foregoing characterization of the Trust for such tax purposes.
Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and in the Statutory Trust Statute with
respect to accomplishing the purposes of the Trust. The Owner Trustee has
filed the Certificate of Trust with the Secretary of State of the State of
Delaware.
SECTION 2.7. Liability of the Depositor and the Certificateholders.
Neither the Depositor (except as otherwise provided herein) nor any
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to the
entirety of the Owner Trust Estate shall be vested at all times in the Trust
as a separate legal entity, except where applicable law in any jurisdiction
requires title to any part of the Owner Trust Estate to be vested in a trustee
or trustees, in which case title shall be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust shall be located and
administered by the Owner Trustee in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the
State of Delaware or the State of New York. The Trust shall not have any
employees in any state other than the State of Delaware; provided, however,
that nothing herein shall restrict or prohibit the Depositor or the Owner
Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The
principal office of the Trust shall be the Corporate Trust Office in care of
the Owner Trustee in the State of Delaware.
SECTION 2.10. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly formed and validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms, and the Depositor has full power
and authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly
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authorized such sale and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary corporate
action.
(c) The Depositor has duly executed and delivered this Agreement,
and this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor, in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of creditors'
rights in general and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the
certificate of incorporation or by-laws of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a party or by which it
is bound, (ii) result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents) or (iii) violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement, the Indenture, any of the other Basic Documents, 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, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or applicable state or local franchise or
income tax attributes, of the Notes and the Certificates.
Federal Income Tax Matters. The Certificateholders acknowledge that
it is their intent and that they understand it is the intent of the Depositor
that, for federal, state and local income and franchise tax purposes, the
Trust shall be treated as a grantor trust of the type described in Treasury
Regulation ss.301.7701-4(c). 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 such treatment as a grantor
trust. If the Trust is not properly characterized as a grantor trust of the
type described in Treasury Regulation ss.301.7701-4(c) (i.e., to the extent
that one or more classes of Notes are treated as equity for federal income tax
purposes), the Trust will be treated as a partnership (other than an
association or publicly traded partnership) for federal, state and local
income and franchise tax purposes, and income, gain or loss of the Trust for
such month as determined for federal income 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.
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Each Certificateholder agrees to provide to the Trust (a) an IRS
Form W-9 (or other similar or successor form) as is necessary to establish an
exemption from United States federal backup withholding with respect to such
Certificateholder (i) on or promptly after the date hereof (or, if later, the
date on which it becomes a Certificateholder hereunder) and (ii) upon the
occurrence of any event that would require the amendment or resubmission of
any such Form previously provided hereunder and such other forms or
information in connection therewith reasonably requested by the Trust.
The Trust is authorized to modify the allocations in this paragraph
if necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Certificateholders, or
as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership. Upon the formation
of the Trust by the contribution by the Depositor pursuant to Section 2.5 and
until the issuance of the Certificates, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.2. The Certificates. (a) The Certificates shall be
substantially in the form set forth in Exhibit A. The Certificates shall be
executed on behalf of the Trust by the Owner Trustee 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
Owner Trustee, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(b) 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 3.4.
(c) Plans and Persons investing on behalf of or with "plan assets"
of Plans may not acquire the Certificates.
SECTION 3.3. Authentication of Certificates. Concurrently with
the initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates,
representing 100% of the Certificate Percentage Interest, to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Depositor, without further action by the Depositor, in authorized
denominations. No Certificate shall entitle its Certificateholder to any
benefit under this Agreement, or shall 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 by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly
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authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 3.4. Registration of Certificates; Transfer and
Exchange of Certificates Limitations on Transfer. (a) The Certificate
Registrar shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 3.8, a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Owner Trustee shall be the initial Certificate Registrar.
No transfer of a Certificate shall be recognized except upon registration of
such transfer in the Certificate Register.
The Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
the Securities Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and state securities laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Owner Trustee in writing the facts surrounding the transfer in substantially
the forms set forth in Exhibit C (the "Transferor Certificate") and either
Exhibit D (the "Investment Letter") or Exhibit E (the "Rule 144A Letter"). The
Depositor shall provide to any Certificateholder and any prospective
transferee designated by any such Certificateholder, information regarding the
Certificates and, based solely on information received from the Servicer, the
Receivables and, to the extent reasonably obtainable by the Depositor, such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. Each Certificateholder desiring
to effect such a transfer shall, and does hereby agree to, indemnify the
Trust, the Owner Trustee, and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with
federal and state securities laws. The Owner Trustee shall cause each
Certificate to contain a legend in the form set forth on the form of
Certificate attached hereto as Exhibit A.
(b) With respect to each transfer of a Certificate, the prospective
transferee shall be deemed to represent the following:
(i) It is not, and each account (if any) for which it is purchasing
the Certificates is not (1) an employee benefit plan, as defined in
Section 3(3) of ERISA, that is subject to Title I of ERISA, (2) a plan
described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code, (3) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, State or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975
of the Code, (4) an entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (within the meaning of
Department of Labor Regulation 29 C.F.R. Section 2510.3-101 or otherwise
under ERISA) or (5) a person investing "plan assets" of any such plan
(including without limitation, for purposes of this clause (5), an
insurance company
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general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended).
(ii) It is, and each account (if any) for which it is purchasing
Certificates is, a Person who is (A) a citizen or resident of the United
States, (B) a corporation or partnership organized in or under the laws
of the United States, any state thereof or the District of Columbia, (C)
an estate the income of which is includible gross income for United
States tax purposes, regardless of its source, or (D) a trust with
respect to which a U.S. court is able to exercise primary supervision
over the administration of such trust and one or more Persons meeting the
conditions of clause (A), (B), (C) or (D) of this paragraph (ii) has the
authority to control all substantial decisions of the trust.
(iii) It understands that any purported transfer of any Certificate
(or any interest therein) to any Person who does not meet the conditions
of paragraphs (i) and (ii) above shall be, to the fullest extent
permitted by law, void ab initio, and the purported transferee in such a
transfer shall not be recognized by the Trust or any other Person as a
Certificateholder for any purpose.
(c) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.8 and upon compliance
with any provisions of this Agreement relating to such transfer, the Owner
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of a like Certificate
Percentage Interest dated the date of authentication by the Owner Trustee or
any authenticating agent. At the option of a Certificateholder, Certificates
may be exchanged for other Certificates of a like Certificate Percentage
Interest upon surrender of the Certificates to be exchanged at the office or
agency maintained pursuant to Section 3.8.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the related Certificateholder or such Certificateholder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled 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 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 with any transfer or exchange of
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar need not register
any transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Payment Date for any payment with respect to the Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there
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shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice that such Certificate has been
acquired by a protected purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for, or in lieu of, any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate, of like tenor and denomination. In connection
with the issuance of any new Certificate under this Section 3.5, the Owner
Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section 3.5 shall constitute conclusive evidence of ownership in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.6. Persons Deemed Owners of Certificates. Prior to
due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the Person in whose name any Certificate is registered in the Certificate
Register as the owner of such Certificate for the purpose of receiving
interest or distributions pursuant to this Agreement and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar
or any Certificate Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer, the Administrator, the Certificate Paying Agent and the Depositor,
or to the Indenture Trustee, within fifteen (15) days after receipt by the
Owner Trustee of a written request therefor from the Servicer, the
Administrator, the Certificate Paying Agent or the Depositor, or the Indenture
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. The Certificate Registrar shall also furnish to
the Owner Trustee and the Certificate Paying Agent a copy of such list at any
time there is a change therein. If three or more Certificateholders or one or
more holders of Certificates evidencing not less than 25% of the Certificate
Percentage Interest apply in writing to the Owner Trustee, and such
application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five (5) 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 3.8. Maintenance of Office or Agency. The Owner Trustee
shall maintain in the State of Delaware, 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 Owner Trustee in respect
of the Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its principal corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor
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and to the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.9. Appointment of Certificate Paying Agent. The
Certificate Paying Agent shall make distributions to Certificateholders from
the Certificate Distribution Account pursuant to Section 5.2 and shall report
the amounts of such distributions to the Owner Trustee. Any Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Certificate Paying Agent shall
initially be JPMorgan Chase Bank. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent upon thirty (30) days' written
notice to the Owner Trustee. In the event that the Owner Trustee shall no
longer be the Certificate Paying Agent, the Owner Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Certificate Paying
Agent to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Certificate Paying Agent shall
return all unclaimed funds to the Owner Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections 6.7,
6.10, 7.1 and 7.2 shall apply to the Certificate Paying Agent. The Owner
Trustee may appoint a co-paying agent. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent appointed by the
Owner Trustee unless the context requires otherwise.
SECTION 3.10. Definitive Certificates. The Certificates will be
issued in certificated, fully registered form (each a "Definitive
Certificate").
SECTION 3.11. Authenticating Agents. (a) The Owner Trustee may
appoint one or more Persons (each, an "Authenticating Agent") with power to
act on its behalf and subject to its direction in the authentication of
Certificates in connection with issuance, transfers and exchanges under
Sections 3.3, 3.4 and 3.5, as fully to all intents and purposes as though each
such Authenticating Agent had been expressly authorized by those Sections to
authenticate such Certificates. For all purposes of this Agreement, the
authentication of Certificates by an Authenticating Agent pursuant to this
Section 3.11 shall be deemed to be the authentication of Certificates "by the
Owner Trustee."
(b) Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, without the
execution or filing of any further act on the part of the parties hereto or
such Authenticating Agent or such successor corporation.
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(c) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Owner Trustee and the Depositor. The
Owner Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent, the
Servicer and the Depositor. Upon receiving such notice of resignation or upon
such a termination, the Owner Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Depositor
and the Servicer.
(d) The Servicer, pursuant to the Sale and Servicing Agreement,
agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services. The provisions of Section 6.4 shall be
applicable to any Authenticating Agent.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to
Certain Matters. It is the intention of the Depositor and the
Certificateholders that the powers and duties of the Owner Trustee are
ministerial only and that any non-ministerial action (including the taking of
any legal action) may only be taken by the Owner Trustee in accordance with
this Section 4.1. With respect to the following matters, the Owner Trustee
shall not take action unless at least thirty (30) days before the taking of
such action, the Owner Trustee shall have notified the Certificateholders of
record as of the preceding Record Date in writing of the proposed action and
Certificateholders holding not less than a majority of the 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 material claim or lawsuit by the Trust
(except claims or lawsuits brought by the Servicer in connection with the
collection of the Receivables) and the settlement of any material action,
claim or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection by the Servicer of the
Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
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 would materially adversely affect the interests of any
Certificateholders; or
(e) the amendment, change or modification 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 any Certificateholders.
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SECTION 4.2. Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee may not, except upon the occurrence of an
Event of Servicing Termination subsequent to the payment in full of the Notes
and in accordance with the written direction of Certificateholders holding not
less than a majority of the Certificate Percentage Interest, (a) remove the
Servicer under the Sale and Servicing Agreement pursuant to Article VII
thereof, (b) appoint a successor Servicer pursuant to Article VII of the Sale
and Servicing Agreement, (c) remove the Administrator under the Administration
Agreement pursuant to Section 9 thereof or (d) appoint a successor
Administrator pursuant to Section 9 of the Administration Agreement.
SECTION 4.3. 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 Trust unless the Notes have been paid
in full and each Certificateholder (other than the Depositor) approves of such
commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the other Basic Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5. 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 holding not less than a
majority of the 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 holders of Certificates
evidencing not less than a majority of the Certificate Percentage Interest at
the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account.
Pursuant to Section 4.1(d) of the Sale and Servicing Agreement, there has been
established and there shall be maintained an Eligible Deposit Account, in the
name of the Trust, initially at the corporate trust department of the
Indenture Trustee which shall be designated as the "Whole Auto Loan Trust
2004-1 Certificate Distribution Account." Except as expressly provided in
Section 3.9, the Certificate Distribution Account shall be under the sole
dominion and control of the Owner Trustee. All monies deposited from time to
time in the Certificate Distribution Account pursuant to the related Sale and
Servicing Agreement shall be applied as provided in the Basic Documents. In
the event that the Certificate Distribution Account is no longer to be
maintained at the corporate trust department of the Indenture Trustee, the
Depositor shall, with the Owner Trustee's assistance as necessary, cause an
Eligible Account to be established as the Certificate Distribution Account
within ten (10) Business Days. The Certificate Distribution Account will be
established and maintained pursuant to an account agreement which specifies
New York law as the governing law.
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SECTION 5.2. Application of Trust Funds. (a) On each Payment
Date, the Owner Trustee shall, based on the information contained in the
Investor Report delivered on the relevant Determination Date pursuant to
Section 3.8 of the Sale and Servicing Agreement withdraw the amounts deposited
into the Certificate Distribution Account for distribution to the
Certificateholders, in proportion to each Certificateholder's Certificate
Percentage Interest, pursuant to Section 4.5 of the Sale and Servicing
Agreement and Section 8.2 (or if applicable Section 5.4(b)) of the Indenture
on or prior to such Payment Date.
(b) On each Payment Date, the Owner Trustee shall, or shall cause
the Certificate Paying Agent to, send to each Certificateholder as of the
related Record Date the Investor Report provided to the Owner Trustee by the
Servicer pursuant to Sections 3.8 and 4.7 of the Sale and Servicing Agreement
with respect to such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust'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 5.2. The Owner Trustee and each Certificate
Paying Agent is 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 Trust (but
such authorization shall not prevent the Owner Trustee or any Certificate
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). 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 Trust 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 Certificate Paying Agent
may, in its sole discretion, withhold such amounts in accordance with this
paragraph (c). In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 8.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each Certificateholder of record on the preceding Record Date
either 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 appropriate written instructions at least five (5) Business Days
prior to such Payment Date 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 applicable Final Scheduled Payment
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
Owner Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law, the
Indenture or the Sale and Servicing Agreement, and
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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 5.5. Accounting and Reports to Noteholders,
Certificateholders, Internal Revenue Service and Others. The Trust shall,
based on information provided by or on behalf of the Servicer, (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis on
the accrual method of accounting, (b) deliver (or cause to be delivered) to
each Certificateholder, as may be required by the Code, such information,
reports or statements as may be required by the Code and applicable Treasury
Regulations (including, if applicable, Schedule K-1) to enable each
Certificateholder to prepare its federal and State income tax returns, (c)
file (or cause to be filed), if applicable, such tax returns relating to the
Trust (including, if applicable, a partnership information return, IRS Form
1065, or IRS Form 1041), 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 Trust's characterization as
described in Section 2.11 hereof, (d) cause such tax returns, if applicable,
to be signed in the manner required by law and (e) collect (or cause to be
collected) any withholding tax as described in and in accordance with Section
5.2(c) with respect to income or distributions to Certificateholders. The
Trust shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The
Owner Trustee shall prepare (or cause to be prepared) and shall sign, on
behalf of the Trust, the tax returns of the Trust, if any, unless applicable
law requires a Certificateholder to sign such documents.
(b) In the event that the Trust is required to be treated as a
partnership for federal income tax purposes, the Certificateholder holding a
majority of the Certificate Percentage Interest shall be designated the "tax
matters partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized
and directed to execute and deliver on behalf of the Trust the Basic Documents
to which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is to be a party and any amendment or other agreement, in each case, in
such form as the Depositor shall approve, 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 (i)
Class A-1 Notes in the aggregate principal amount of $548,000,000, (ii) Class
A-2A Notes in the aggregate principal amount of $608,000,000, (iii) Class A-2B
Notes in the aggregate principal amount of $25,000,000, (iv) Class A-3 Notes
in the aggregate principal amount of $432,000,000, (v) Class A-4 Notes in the
aggregate principal amount of $309,720,000, (vi) Class B Notes in the
aggregate principal amount of $50,333,000, (vii) Class C Notes in the
aggregate principal amount of $20,133,000 and (viii) Class D Notes in the
aggregate principal amount of $55,366,000. In addition to the foregoing, the
Owner Trustee is authorized to take all actions required of the Trust pursuant
to
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the Basic Documents. The Owner Trustee is further authorized from time to time
to take such action on behalf of the Trust as is permitted by the Basic
Documents and which the Servicer or the Administrator directs with respect to
the Basic Documents, except to the extent that this Agreement expressly
requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. Subject to Section 4.1 hereof, it
shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this
Agreement and the other Basic Documents to which the Trust is a party and to
administer the Trust in the interest of the Certificateholders, subject to the
lien of the Indenture and in accordance with the provisions of this Agreement
and the other Basic Documents. Notwithstanding anything else to the contrary
in this Agreement, the Owner Trustee shall be deemed to have discharged its
duties and responsibilities hereunder and under the Basic Documents to the
extent the Administrator is required in the Administration Agreement to
perform any act or to discharge such duty of the Owner Trustee or the Trust
hereunder or under any other Basic Document, and the Owner Trustee shall not
be held liable for the default or failure of the Administrator to carry out
its obligations under the Administration Agreement. Except as expressly
provided in the Basic Documents, the Owner Trustee shall have no obligation to
administer, service or collect the Receivables or to maintain, monitor or
otherwise supervise the administration, servicing or collection of the
Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article
IV, and in accordance with the terms of the Basic Documents, the
Certificateholders may, by written instruction, direct the Owner Trustee in
the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the 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) 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
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as to the course of action that the Owner Trustee is required to take with
respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Owner Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
SECTION 6.4. 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 Trust 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 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or Lien granted to it hereunder or to prepare or file
any Commission filing for the Trust or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Lien (other than the Lien of the Indenture) on any part of the Owner Trust
Estate that results from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Basic Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders
shall direct the Trustee to take any action that would violate the provisions
of this Section 6.5.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would
(i) affect the treatment of the Notes as indebtedness for federal income or
Applicable Tax State income or franchise tax purposes, (ii) be deemed to cause
a taxable exchange of the Notes for federal income or Applicable Tax State
income or franchise tax purposes or (iii) cause the Trust or any portion
thereof to be taxable as an association (or publicly traded partnership)
taxable as a corporation for federal income or Applicable Tax State income or
franchise tax purposes. The Certificateholders shall not direct the Owner
Trustee to take action that would violate the provisions of this Section 6.6.
15
SECTION 6.7. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents to which the Owner Trustee is a party. 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 6.9 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
instructions of any Certificateholder, the Indenture Trustee, the
Depositor, the Administrator, the Data Administrator or the Servicer;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for
or in respect of the validity or sufficiency of the other Basic
Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the
other Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Data Administrator,
the Depositor or the Indenture Trustee under any of the Basic Documents
or otherwise and the Owner Trustee shall have no obligation or liability
to perform the obligations of the Trust under this Agreement or the other
Basic Documents that are required to be performed by the Administrator
under the Administration Agreement, the Data Administrator under the Data
Administration Agreement, the Indenture Trustee under the Indenture or
the Depositor or the Servicer under the Sale and Servicing Agreement; and
16
(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 reasonable security
or indemnity against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or
in any other Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its willful
misconduct, bad faith or negligence in the performance of any such act.
SECTION 6.8. 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.
SECTION 6.9. Representations and Warranties. (a) The Owner
Trustee hereby represents and warrants to the Depositor, for the benefit of
the Certificateholders, that:
(i) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(ii) 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.
(iii) 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 State law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 6.10. 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. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any 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
17
or matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any other Basic Document.
SECTION 6.11. Not Acting in Individual Capacity. Except as
provided in this Article VI, 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 6.12. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the signature and countersignature 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, of any
other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) 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 Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty
or representation made under any Basic Document or in any related document, or
the accuracy of any such warranty or representation, or any action of the
Indenture Trustee, the Administrator, the Data Administrator or the Servicer
or any subservicer taken in the name of the Owner Trustee.
SECTION 6.13. Owner Trustee May Own Certificates and Notes.
Wilmington Trust Company, in its individual or any other capacity, may become
the owner or pledgee of Certificates or Notes and may deal with the Depositor,
the Servicer, the Administrator, the Data Administrator and the Indenture
Trustee in banking transactions with the same rights as they would have if it
was not the Owner Trustee.
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ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Servicer,
pursuant to the Sale and Servicing Agreement, shall (i) pay to the Owner
Trustee as compensation for its services hereunder such fees as have been
separately agreed upon prior to the date hereof between the Servicer and the
Owner Trustee and (ii) indemnify the Owner Trustee to the extent provided in
Section 6.2(d) of the Sale and Servicing Agreement and the Administrator shall
reimburse the Owner Trustee 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 7.2. Payments to Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust. (a) The Trust shall
dissolve and wind up upon the later of, (i) the maturity or other liquidation
of the last remaining Receivable and the disposition of any amounts received
upon such maturity or liquidation, (ii) the payment to the Noteholders and
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement or Article V hereof,
or (iii) the entry of an order for the dissolution of the Trust from a court
of competent jurisdiction. Any Insolvency Event, liquidation, dissolution,
death or incapacity with respect to any Certificateholder shall not (x)
operate to terminate this Agreement or dissolve and/or terminate the Trust,
nor (y) entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto. Upon dissolution of the Trust, the Owner Trustee shall wind up
the business and affairs of the Trust as required by Section 3808 of the
Statutory Trust Statute.
(b) Except as provided in Section 8.1(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke, dissolve or terminate the
Trust.
(c) Notice of any dissolution of the Trust, specifying the Payment
Date upon which the Certificateholders shall surrender their Certificates to
the Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice
of such dissolution from the Servicer, stating (i) the Payment 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
Certificate Paying Agent therein designated, (ii) the amount of any such final
payment (after reservation of sums sufficient to pay all claims and
obligations, if any, known to the Owner
19
Trustee and payable by the Trust) and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the
Certificate Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Certificate Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Certificate Paying Agent shall cause to be distributed to Certificateholders
amounts distributable on such Payment Date pursuant to Section 5.2. Upon the
satisfaction and discharge of the Indenture, and receipt of a certificate from
the Indenture Trustee stating that all Noteholders have been paid in full and
that the Indenture Trustee is aware of no claims remaining against the Trust
in respect of the Indenture and the Notes, the Owner Trustee, in the absence
of actual knowledge of any other claim against the Trust, shall be deemed to
have made reasonable provision to pay all claims and obligations (including
conditional, contingent or unmatured obligations) for purposes of Section
3808(e) of the Statutory Trust Statute.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six (6) months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable
escheat laws, any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Statutory Trust Statute whereupon the
Trust and this Agreement shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee. (a)
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 shall be subject to supervision or examination by federal or state
authorities; and (iii) shall have (or shall have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or be
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 9.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.1, the Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 9.2.
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(b) The Owner Trustee shall at all times be a corporation satisfying
the provisions of Section 3807(a) of the Statutory Trust Statute.
SECTION 9.2. 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. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the applicable successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within thirty (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; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve
the resigning Owner Trustee from any obligations otherwise imposed on it under
the Basic Documents until such successor has in fact assumed such appointment.
(b) If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 or resigns pursuant to Section
9.2 of this Agreement and the ineligible or non-resigning Owner Trustee shall
fail to resign after written request therefor by the Administrator, or if at
any time the Owner Trustee shall be legally unable to act, or if at any time
an Insolvency Event with respect to the Owner Trustee shall have occurred and
be continuing, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee, and shall pay all fees owed to
the outgoing Owner Trustee.
(c) Any resignation or removal of an Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
9.2 shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 9.3, payment of all fees and
expenses owed to the outgoing Owner Trustee and the filing of a certificate of
amendment to the Certificate of Trust if required by the Statutory Trust
Statute. The Administrator shall provide notice of such resignation or removal
of the Owner Trustee to the Certificateholders, the Indenture Trustee, the
Noteholders and each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. (a) Any successor Owner
Trustee appointed pursuant to Section 9.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement. Upon the
resignation or removal of the predecessor Owner Trustee becoming effective
pursuant to Section 9.2, 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.
21
(b) No successor Owner Trustee shall accept appointment as provided
in this Section 9.3 unless, at the time of such acceptance, such successor
Owner Trustee shall be eligible pursuant to Section 9.1.
(c) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 9.3, the Administrator shall mail notice of the
successor of such Owner Trustee to all Certificateholders, the Servicer, the
Indenture Trustee, the Noteholders and the Rating Agencies. If the
Administrator shall fail to mail such notice within ten (10) 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.
(d) Any successor Owner Trustee appointed hereunder shall file the
amendments to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Owner Trustee in
the State of Delaware.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, be the successor of the Owner
Trustee hereunder; provided that such corporation shall be eligible pursuant
to Section 9.1; and provided further, that (i) the Owner Trustee shall mail
notice of such merger or consolidation to the Rating Agencies not less than
fifteen (15) days prior to the effective date thereof and (ii) the Owner
Trustee shall file an amendment to the Certificate of Trust as required by
Section 9.3(d).
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person, in such capacity, such title to the
Owner Trust Estate, or any part thereof, and, subject to the other provisions
of this Section 9.5, 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 fifteen
(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 trustee pursuant to Section 9.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 9.3.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
22
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties, and obligations (including the holding
of title to the Trust 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;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) 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 IX. 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.
(d) 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 trustee.
SECTION 9.6. Compliance with Statutory Trust Statute.
Notwithstanding anything herein to the contrary, the Trust shall at all times
have at least one trustee which meets the requirements of Section 3807(a) of
the Statutory Trust Statute.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. (a) This Agreement may
be amended by the Depositor and the Owner Trustee, with prior written notice
to the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement inconsistent with any other provision of
23
this Agreement, the Prospectus Supplement, the Prospectus or the Memorandum
relating to the Certificates or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel satisfactory to the Owner Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder or
Certificateholder; and provided further that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that
such amendment (A) will not materially adversely affect the federal income
taxation of any outstanding Note or Certificate and (B) will not cause the
Trust to be treated as an association (or publicly traded partnership) taxable
as a corporation for federal income tax purposes.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of (i) the holders of Notes evidencing not less
than a majority of the principal amount of the Notes Outstanding and (ii) the
holders of Certificates evidencing not less than a majority of the 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 of
modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (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
Receivables or distributions that are required to be made for the benefit of
the Noteholders or the Certificateholders, or (ii) reduce the aforesaid
percentage of the principal amount of the Notes Outstanding or the Certificate
Percentage Interest required to consent to any such amendment, without the
consent of all the Noteholders and Certificateholders affected thereby; and
provided further, that an Opinion of Counsel shall be furnished to the
Indenture Trustee and the Owner Trustee to the effect that such amendment (A)
will not materially adversely affect the federal income taxation of any
outstanding Note or Certificate and (B) will not cause the Trust to be treated
as an association (or a publicly traded partnership) taxable as a corporation
for federal income tax purposes. Notwithstanding anything in this Agreement to
the contrary, 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
the Indenture Trustee and with the consent of holders of all of the
Certificates but without the consent of any Noteholder, to create one or more
classes of certificates and amend the rights of the then current Certificates;
provided that an Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such amendment (A) will not
materially adversely affect the federal income taxation of any outstanding
Note or Certificate (unless the holder thereof consents to such new treatment)
and (B) will not cause the Trust to be treated as an association (or publicly
traded partnership) taxable as a corporation for federal income tax purposes.
(c) Promptly after the execution of any such amendment, the Owner
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section 10.1 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
24
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.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this
Agreement or any amendment to any other agreement to which the Trust is a
party, the Owner Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholders. Neither the Depositor nor the Certificateholders shall
have legal title to any part of the Owner Trust Estate. The Certificateholders
shall be entitled to receive distributions with respect to their beneficial
interests therein only in accordance with Articles V and VIII. No transfer, by
operation of law or otherwise, of any right, title, or interest of the
Certificateholders to and in their beneficial interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 10.3. Limitation on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the Depositor,
the Administrator, the Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, 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 10.4. Notices. (a) Unless otherwise expressly specified
or permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three (3) Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the respective Corporate
Trust Office; if to the Depositor, at the address of its principal executive
office first above written; or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
25
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such 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 such
Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Depositor, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 10.8. No Petition. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), and the Depositor solely in
relation to the Trust, by entering into this Agreement, and each
Certificateholder, by accepting a Certificate, hereby covenants and agrees
that it will not, until after the Notes have been paid in full, institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Agreement or any of
the other Basic Documents.
SECTION 10.9. No Recourse. Each Certificateholder, by accepting
a Certificate, acknowledges that such Certificateholder's Certificates
represent beneficial interests in the Trust only and do not represent
interests in or obligations of the Depositor, the Servicer, the Administrator,
the Owner Trustee, the Indenture Trustee or any Affiliate thereof, and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Certificates or the
other Basic Documents.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
26
SECTION 10.12. Subordination Agreement. Each Certificateholder,
by accepting a Certificate, hereby covenants and agrees that, to the extent it
is deemed to have any interest in any assets of the Depositor, or a
securitization vehicle (other than the Trust) related to the Depositor,
dedicated to other debt obligations of the Depositor or debt obligations of
any other securitization vehicle (other than the Trust) related to the
Depositor, its interest in those assets is subordinate to claims or rights of
such other debtholders to those other assets. Furthermore, each
Certificateholder, by accepting a Certificate, hereby covenants and agrees
that such agreement constitutes a subordination agreement for purposes of
Section 510(a) of the Bankruptcy Code.
SECTION 10.13. Rule 144A Information. So long as the Trust is not
subject to Section 13 or 15(d) of the Exchange Act, upon the request of a
Certificateholder or a Holder of Class D Notes, the Depositor shall promptly
furnish to such Certificateholder or Holder, as the case may be, and to a
prospective purchaser of such Certificate or Class D Note, as applicable,
designated by such Certificateholder or Holder, as applicable, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
to permit compliance with Rule 144A in connection with resales of the
Certificates or Class D Notes, as applicable, in accordance with the terms
hereof (such information to consist of a copy of the Memorandum together with
all financial statements of the Trust, if any, then available).
27
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
BEAR XXXXXXX ASSET BACKED FUNDING II INC.,
as Depositor
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
Accepted and Agreed to:
XX XXXXXX CHASE BANK,
as Certificate Paying Agent
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
28
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN
SECTION 3.4 OF THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE IS ISSUED (A
COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE OWNER TRUSTEE OR UPON
REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN INVESTMENT LETTER IN
WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS
RIGHTS TO RECEIVE DISTRIBUTIONS ARE SUBORDINATED TO THE RIGHTS OF THE
NOTEHOLDERS AS DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE INDENTURE
AND THE TRUST AGREEMENT REFERRED TO HEREIN.
C-
-----------
WHOLE AUTO LOAN TRUST 2004-1
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below. The
property of the Trust includes a pool of motor vehicle retail installment sale
contracts and loans, secured by security interests in the new and used
automobiles and light duty trucks financed thereby, conveyed by Bear Xxxxxxx
Asset Backed Funding II Inc. to the Trust. The property of the Trust has been
pledged to the Indenture Trustee pursuant to the Indenture to secure the
payment of the Notes issued thereunder.
(This Certificate is not a deposit, does not represent an interest in or
obligation of Bear Xxxxxxx Asset Backed Funding II Inc., the Owner Trustee,
the Servicer or any of their respective Affiliates and is not insured by the
Federal Deposit Insurance Corporation or any other entity.)
THIS CERTIFIES THAT [___________] is the registered owner of [ ]%
Certificate Percentage Interest nonassessable, fully paid, fractional
undivided interest in Whole Auto Loan Trust 2004-1 (the "Trust") formed by
Bear Xxxxxxx Asset Backed Funding II Inc., a Delaware corporation (the
"Depositor").
The Trust is governed pursuant to an Amended and Restated Trust
Agreement, dated as of November 9, 2004 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"),
between the Depositor and Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below.
A-1
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates (herein
called the "Certificates") issued under and subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. Also issued under the Indenture, dated as of
November 9, 2004 (as from time to time amended, supplemented or otherwise
modified and in effect, the "Indenture"), between the Trust and XX Xxxxxx
Chase Bank, as indenture trustee (in such capacity, the "Indenture Trustee"),
are the Notes designated as "Class A-1 2.15% Asset Backed Notes", "Class A-2A
2.59% Asset Backed Notes", "Class A-2B 4.68% Asset Backed Notes", "Class A-3
2.96% Asset Backed Notes", "Class A-4 3.26% Asset Backed Notes", "Class B
3.13% Asset Backed Notes", "Class C 3.37% Asset Backed Notes" and "Class D
5.60% Asset Backed Notes" (collectively, the "Notes"). The property of the
Trust includes (i) a pool of motor vehicle retail installment sale contracts
and loans for new and used automobiles and light trucks and certain rights and
obligations thereunder (the "Receivables"); (ii) monies received thereunder on
or after the Cut-off Date; (iii) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other
interest of the Trust in the Financed Vehicles; (iv) proceeds with respect to
the Receivables from claims on any theft, physical damage, credit life, credit
disability or other insurance policies, if any, covering Financed Vehicles or
Obligors; (v) the Receivable Files; (vi) such amounts as from time to time may
be held in one or more accounts maintained pursuant to the Sale and Servicing
Agreement, dated as of November 9, 2004 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Sale and Servicing
Agreement"), by and among the Trust, the Depositor, and Bear Xxxxxxx Asset
Backed Funding II Inc., as seller (in such capacity, the "Seller") and Bear
Xxxxxxx Asset Receivables Corp., as servicer (in such capacity, the
"Servicer"); (vii) payments and proceeds with respect to the Receivables;
(viii) the rights of the Depositor under the ALFT II Receivables Purchase
Agreement, XXXX III Receivables Purchase Agreement and the ALFT IV Receivables
Purchase Agreement; (ix) all property (including the right to receive
Liquidation Proceeds) securing a Receivable (other than a Receivable
repurchased by the Servicer or purchased by the Seller or a Receivables
Servicer); (x) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cut-off Date; and (xi) all present and future claims, demands, causes of
action and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms
of obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of the
foregoing. THE RIGHTS OF THE TRUST IN THE FOREGOING PROPERTY OF THE TRUST HAVE
BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Under the Trust Agreement, there will be distributed on the 15th day
of each month, or if such 15th day is not a Business Day, the next Business
Day (each, a "Payment Date"), commencing November 15, 2004, to the Person in
whose name this Certificate is registered at
A-2
the close of business on the last day of the preceding month (in each case,
the "Record Date") such Certificateholder's Certificate Percentage Interest in
the amount to be distributed to Certificateholders on such Payment Date
pursuant to the Trust Agreement.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS
RIGHTS TO RECEIVE DISTRIBUTIONS ARE SUBORDINATED TO THE RIGHTS OF THE
NOTEHOLDERS AS DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE INDENTURE
AND THE TRUST AGREEMENT.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a grantor trust of the type described in Treasury Regulation
ss.301.7701-4(c) . The Depositor and the other Certificateholders by
acceptance of a Certificate agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
a grantor trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not, until after the Notes have
been paid in full, institute against the Trust, or join in any institution
against the Trust of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Certificates, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or the Certificate 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 tendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee.
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 set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by the Owner Trustee by an authorized officer of the Owner Trustee,
by manual signature, this Certificate shall not entitle the Certificateholder
hereof to any benefit under the Trust Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of
the State of Delaware and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
WHOLE AUTO LOAN TRUST 2004-1
Dated: By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
--------------------------------------
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated:
WILMINGTON TRUST COMPANY, not in
its individual capacity but
solely as Owner Trustee
By:
-------------------------------------
Authorized Officer
A-4
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Seller, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliates of any of them other than the
Trust 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 or by any other
entity 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 Sale and Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under
the Trust Agreement at any time by the Depositor and the Owner Trustee with
the consent of the Noteholders and the Certificateholders evidencing not less
than a majority of the principal amount of the Notes Outstanding and the
Certificate Percentage Interest, respectively. Any such consent by the holder
of this Certificate shall be conclusive and binding on such Certificateholder
and on all future holders of this Certificate 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.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of any of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of the Certificates are registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Owner Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in Wilmington, Delaware, accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
Certificates are exchangeable for new Certificates evidencing the
same Certificate Percentage Interest, as requested by the Certificateholder
surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Certificates may be acquired only by an entity that is not, and
each account (if any) for which it is purchasing the Certificates is not (i)
an employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"))
A-5
that is subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), that
is subject to Section 4975 of the Code, (iii) a governmental plan, as defined
in Section 3(32) of ERISA, subject to any federal, State or local law which
is, to a material extent, similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, (iv) an entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (within the meaning of
Department of Labor Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under
ERISA) or (v) a person investing "plan assets" of any such plan (including
without limitation, for purposes of this clause (v), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended).
In addition, the Certificates may not be acquired by or on behalf of
a Person other than (A) a citizen or resident of the United States, (B) a
corporation or partnership organized in or under the laws of the United
States, any state thereof or the District of Columbia, (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, or (D) a trust with respect to which a U.S. court is
able to exercise primary supervision over the administration of such trust and
one or more Persons meeting the conditions of this paragraph has the authority
to control all substantial decisions of the trust.
The Trust shall dissolve and windup upon the later of, (i) the
maturity or other liquidation of the last remaining Receivable and the
disposition of any amounts received upon such maturity or liquidation, (ii)
the payment to the Noteholders and Certificateholders of all amounts required
to be paid to them pursuant to the Indenture, the Sale and Servicing Agreement
or Article V hereof, or (iii) the entry of an order for the dissolution of the
Trust by a court of competent jurisdiction.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
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the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the
--------------
Certificate Registrar, with full power of substitution in the premises.
Dated:
--------------
*/
-----------------------
Signature Guaranteed:
*/
-----------------------
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-7
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
WHOLE AUTO LOAN TRUST 2004-1
This Certificate of Trust of WHOLE AUTO LOAN TRUST 2004-1 (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware
Statutory Trust Act (12 Delaware Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate
of Trust is WHOLE AUTO LOAN TRUST 2004-1.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee
By:
----------------------------------------
Name:
Title:
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust 2004-1 Certificates
Ladies and Gentlemen:
In connection with our disposition of the above-referenced
Certificates (the "Certificates") we certify that (a) we understand that the
Certificates have not been registered under the Securities Act of 1933, as
amended (the "Act"), and are being transferred by us in a transaction that is
exempt from the registration requirements of the Act, (b) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which
would result in, a violation of Section 5 of the Act and (c) if the transferee
of the Certificates is delivering a Rule 144A Letter in connection with the
transfer, we reasonably believe that such transferee is a "qualified
institutional buyer" within the meaning of Rule 144A under the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:
------------------------------------
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust 2004-1 Certificates
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates (the "Certificates") we certify that (a) we understand that the
Certificates are not being registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws and are being transferred to
us in a transaction that is exempt from the registration requirements of the
Act and any such laws, (b) we are an institutional "accredited investor," as
defined in Rule 501(a)(1), (2), (3) or (7) in Regulation D under the Act or an
entity in which all of the equity owners are institutional "accredited
investors," as defined in Rule 501(a)(1), (2), (3) or (7) in Regulation D
under the Act, and have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the seller concerning the purchase of
the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action that would result in a violation of Section 5 of the
Act or any state securities laws and (f) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act and in compliance with any relevant state securities laws or is exempt
from such registration requirements and (2) the purchaser or transferee of
such Certificate has executed and delivered to you a certificate to
substantially the same effect as this certificate and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth
in the Amended and Restated Trust Agreement dated as of November 9, 2004,
between Bear Xxxxxxx Asset Backed Funding II Inc. and Wilmington Trust
Company, as Owner Trustee.
D-1
Very truly yours,
[NAME OF TRANSFEREE]
By:
---------------------------------
Authorized Officer
A-2
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust 2004-1 Certificates
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates (the "Certificates") we certify that (a) we understand that the
Certificates are not being registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws and are being transferred to
us in a transaction that is exempt from the registration requirements of the
Act and any such laws, (b) we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the seller concerning the purchase of
the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we have not, nor has anyone acting on our behalf, offered, transferred,
pledged, sold or otherwise disposed of the Certificates or any interest in the
Certificates, or solicited any offer to buy, transfer, pledge or otherwise
dispose of the Certificates or any interest in the Certificates from any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action that would
constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or any state securities laws or require registration pursuant thereto, and we
will not act, or authorize any person to act, in such manner with respect to
the Certificates, and (e) we are a "qualified institutional buyer" as that
term is defined in Rule 144A under the Act. We are aware that the sale to us
is being made in reliance on Rule 144A. We are acquiring the Certificates for
our own account or for resale pursuant to Rule 144A and understand that such
Certificates may be resold, pledged or transferred only to a person reasonably
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A.
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------------
Authorized Officer
E-1
APPENDIX A
Definitions and Usage
[See Appendix A attached to the Indenture]
AA-1
