Exhibit 4.1
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FORM OF [AMENDED AND RESTATED] TRUST AGREEMENT
between
BEAR XXXXXXX ASSET BACKED FUNDING II INC.
as Depositor
[ ]
as Owner Trustee
Dated as of [ ]
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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............................5
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.........................8
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...10
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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.....................................11
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............................12
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.................................................13
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................................15
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..............................18
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........................20
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...................................................25
SECTION 10.6. Separate Counterparts..........................................25
SECTION 10.7. Successors and Assigns.........................................25
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........................................26
SECTION 10.13.Rule 144A Information..........................................26
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 [ ] (as from time to
time amended, supplemented or otherwise modified and in effect, this
"Agreement"), among 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 [ ], a [[ ] ("[ ]"), 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 [ ] for the purpose of
establishing the Whole Auto Loan Trust [ ].
[WHEREAS, the parties hereto intend to amend and restate that certain Trust
Agreement, dated as of [ ], 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 [ ]", 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, 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 [ ], 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 disregarded entity
or a partnership (other than an association or publicly traded partnership),
with the assets of the partnership being the Receivables and other
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assets held by the Trust, the partners of the partnership being the
Certificateholders and the Depositor, and the 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 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 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
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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.
SECTION 2.11 Federal Income Tax Matters. The Certificateholders acknowledge
that it is their intent and that they understand it is the intent of the
Depositor that, for federal, state and local income and franchise tax purposes,
the Trust shall be treated either as a disregarded entity or a partnership
(other than an association or publicly traded partnership). 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.
For federal, state and local income and franchise tax purposes 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.
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.
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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 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.
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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 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, (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 (E) of this paragraph (ii) has the authority to control all
substantial decisions of the trust or (E) a Person not described in clauses
(A) through (D) above who provides the Owner Trustee
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and the Depositor with an IRS Form W-8 ECI or W-8BEN (and such other
certifications, representations, or opinions of counsel as may be requested
by the Owner Trustee or the Depositor).
(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 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
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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 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
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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 the Owner
Trustee. 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, 6.9, 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.
(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.
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(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.
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.
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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 [ ] 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.
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.
(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
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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 or any 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 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 as may be
required (including Schedule K-1) to enable each Certificateholder to prepare
its federal and State income tax returns, (c) file (or cause to be filed) such
tax returns relating to the Trust (including, if applicable, a partnership
information return, IRS Form 1065), and make such elections, as may
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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 a disregarded entity or a partnership for federal income tax
purposes, (d) cause such tax returns 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. The Trust shall not make the election provided under Section 754 of
the Code.
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, Bear Xxxxxxx Securities Corp. 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 $[ ], (ii) Class A-2 Notes in the aggregate
principal amount of $[ ], (iii) Class A-3 Notes in the aggregate principal
amount of $[ ], (iv) Class A-4 Notes in the aggregate principal amount of $[ ],
(v) Class B Notes in the aggregate principal amount of $[ ], (vi) Class C Notes
in the aggregate principal amount of $[ ] [and (vii) Class D Notes in the
aggregate principal amount of $[ ]]. In addition to the foregoing, the Owner
Trustee is authorized to take all actions required of the Trust pursuant to the
Basic Documents. The Owner Trustee is further authorized from time to time to
take such action 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
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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 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.
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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.
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):
15
(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
(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.
16
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 [ ] duly organized and validly existing in good standing
under the laws of the [ ]. 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 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
17
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, [ ] 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. [ ], 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.
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
18
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 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
19
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.
(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
20
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.
(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
21
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:
(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
22
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 this
Agreement 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
23
(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, (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.
(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 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
24
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.
(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
25
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.
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).
26
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:
-----------------------
Name:
Title:
[ ],
as Owner Trustee
By:
-----------------------
Name:
Title:
27
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 [ ]
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, 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 [ ] (the "Trust") formed by Bear Xxxxxxx Asset
Backed Funding II Inc., a Delaware corporation (the "Depositor").
The Trust is governed pursuant to [a][an Amended and Restated] Trust
Agreement, dated as of [ ] (as from time to time amended, supplemented or
otherwise modified and in effect, the "Trust Agreement"), between the Depositor
and [ ], a [ ], not in its individual capacity but solely as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent
A-1
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement.
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 [ ] (as
from time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Trust and [ ], as indenture trustee (in such capacity,
the "Indenture Trustee"), are the Notes designated as "[Class A-1 [ ]% Asset
Backed Notes", "Class A-2 [ ]% Asset Backed Notes", "Class A-3 [ ]% Asset Backed
Notes", "Class A-4 [ ]% Asset Backed Notes", "Class B [ ]% Asset Backed Notes",
"Class C [ ]% Asset Backed Notes" and "Class D [ ]% Asset Backed Notes]"
(collectively, the "Notes"). The property of the Trust includes (i) a pool of
motor vehicle retail installment sale contracts for new and used automobiles and
light trucks and certain rights and obligations thereunder (the "Receivables");
(ii) monies received thereunder on or after the Cutoff Date; (iii) 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)
rights to proceeds from claims on any theft physical damage, credit life, credit
disability or other insurance policies, if any, covering Financed Vehicles or
Obligors; (v) all of the Seller's rights to the Receivable Files; (vi) the Trust
Accounts and all amounts, securities, investments, investment property and other
property deposited in or credited to any of the foregoing, all security
entitlements relating to the foregoing and all proceeds thereof; (viii) all
property (including the right to receive Liquidation Proceeds) securing a
Receivable (other than a Receivable repurchased by the Servicer or purchased by
the Depositor); (ix) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and (x) all present and future claims, demands, causes of action
and chooses 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 [ ], to the Person in whose name this
Certificate is registered at 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
A-2
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 disregarded for tax purposes or
treated as a partnership and the Certificateholders (including the Depositor)
will be treated as partners in that partnership. 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 partnership interests in the 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 [ ]
Dated: [ ] By: [ ],
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: [ ]
[ ],
not in its individual capacity
but solely as Owner Trustee
By:
---------------------------
Authorized Officer
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[REVERSE OF CERTIFICATE]
The Certificates do not represent interests in or obligations of, the
Depositor, 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
[ ], [ ], 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, (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 or (E) a Person not described in clauses
(A) through (D) above who provides the Owner Trustee and the Depositor with an
IRS Form W-8 ECI or W-8BEN (and such other certifications, representations, or
opinions of counsel as may be requested by the Owner Trustee or the Depositor).
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
--------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
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 [ ]
This Certificate of Trust of WHOLE AUTO LOAN TRUST [ ]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 [ ].
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are [ ], [ ], Attn: [ ].
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.
[ ],
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 [ ] 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 and (b) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, in a
manner that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:
------------------------------
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust [ ] 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, 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 [ ], between Bear Xxxxxxx Asset Backed
Funding II Inc. and [ ], as Owner Trustee.
Very truly yours,
[NAME OF TRANSFEREE]
By:
----------------------------
Authorized Officer
D-1
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust [ ] 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
[Form of Appendix A attached to the Form of Indenture (Exhibit 4.3)]
A-A-1
