Exhibit 4.3
EXECUTION COPY
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TRUST AGREEMENT
between
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
as Owner Trustee
Dated July 10, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions ....................................................................... 1
SECTION 1.01 Capitalized Terms ...................................................... 1
SECTION 1.02 Other Definitional Provisions .......................................... 4
ARTICLE II Organization ..................................................................... 5
SECTION 2.01 Name ................................................................... 5
SECTION 2.02 Office ................................................................. 5
SECTION 2.03 Purposes and Powers .................................................... 5
SECTION 2.04 Appointment of Owner Trustee ........................................... 6
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate ..................... 6
SECTION 2.06 Declaration of Trust ................................................... 6
SECTION 2.07 Liability of the Depositor and the Certificateholders .................. 7
SECTION 2.08 Title to Trust Property ................................................ 7
SECTION 2.09 Situs of Trust ......................................................... 7
SECTION 2.10 Representations and Warranties of the Depositor ........................ 7
SECTION 2.11 Financing Statements ................................................... 8
SECTION 2.12 Amended and Restated Trust Agreement ................................... 9
ARTICLE III Trust Certificates and Transfer of Interests .................................... 9
SECTION 3.01 [Reserved] ............................................................. 9
SECTION 3.02 The Trust Certificates ................................................. 9
SECTION 3.03 Authentication of Trust Certificates ................................... 9
SECTION 3.04 Registration of Transfer and Exchange of Trust Certificates ............ 10
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates ................ 12
SECTION 3.06 Persons Deemed Owners .................................................. 12
SECTION 3.07 Access to List of Certificateholders' Names and Addresses .............. 12
SECTION 3.08 Maintenance of Office or Agency ........................................ 13
SECTION 3.09 Appointment of Paying Agent ............................................ 13
ARTICLE IV Actions by Owner Trustee ......................................................... 13
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain Matters ..... 13
SECTION 4.02 Action by Certificateholders with Respect to Certain Matters ........... 14
SECTION 4.03 Action by Certificateholders with Respect to Bankruptcy ................ 14
SECTION 4.04 Restrictions on Certificateholders' Power .............................. 15
SECTION 4.05 Majority Control ....................................................... 15
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ARTICLE V Application of Trust Funds; Certain Duties ........................................ 15
SECTION 5.01 [Reserved] ............................................................ 15
SECTION 5.02 Application of Trust Funds ............................................ 15
SECTION 5.03 Method of Payment ..................................................... 16
SECTION 5.04 No Segregation of Monies; No Interest ................................. 16
SECTION 5.05 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others ............................................ 16
SECTION 5.06 Signature on Returns .................................................. 17
ARTICLE VI Authority and Duties of Owner Trustee ............................................ 17
SECTION 6.01 General Authority ..................................................... 17
SECTION 6.02 General Duties ........................................................ 17
SECTION 6.03 Action upon Instruction ............................................... 18
SECTION 6.04 No Duties Except as Specified in this Agreement or in Instructions .... 19
SECTION 6.05 No Action Except Under Specified Documents or Instructions ............ 19
SECTION 6.06 Restrictions .......................................................... 19
SECTION 6.07 Issuance of Notes ..................................................... 19
ARTICLE VII Concerning the Owner Trustee .................................................... 19
SECTION 7.01 Acceptance of Trusts and Duties ....................................... 19
SECTION 7.02 Furnishing of Documents ............................................... 21
SECTION 7.03 Representations and Warranties of the Owner Trustee ................... 21
SECTION 7.04 [Reserved] ............................................................ 22
SECTION 7.05 Reliance; Advice of Counsel ........................................... 22
SECTION 7.06 Not Acting in Individual Capacity ..................................... 23
SECTION 7.07 Owner Trustee Not Liable for Trust Certificates or Receivables ........ 23
SECTION 7.08 Owner Trustee May Own Trust Certificates and Notes .................... 23
ARTICLE VIII Compensation of Owner Trustee .................................................. 24
SECTION 8.01 Owner Trustee's Fees and Expenses ..................................... 24
SECTION 8.02 Indemnification ....................................................... 24
SECTION 8.03 Payments to the Owner Trustee ......................................... 24
ARTICLE IX Termination of Trust Agreement ................................................... 25
SECTION 9.01 Termination of Trust Agreement ........................................ 25
ARTICLE X Successor Owner Trustees and Additional Owner Trustees ............................ 26
SECTION 10.01 Eligibility Requirements for Owner Trustee ............................ 26
SECTION 10.02 Resignation or Removal of Owner Trustee ............................... 26
SECTION 10.03 Successor Owner Trustee ............................................... 27
SECTION 10.04 Merger or Consolidation of the Owner Trustee .......................... 27
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee ......................... 28
ARTICLE XI Miscellaneous .................................................................... 29
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SECTION 11.01 Supplements and Amendments .................................... 29
SECTION 11.02 No Legal Title to Owner Trust Estate in Certificateholders .... 30
SECTION 11.03 Limitations on Rights of Others ............................... 31
SECTION 11.04 Notices ....................................................... 31
SECTION 11.05 Severability .................................................. 31
SECTION 11.06 Separate Counterparts ......................................... 31
SECTION 11.07 Successors and Assigns ........................................ 31
SECTION 11.08 Covenants of the Depositor .................................... 32
SECTION 11.09 No Petition ................................................... 32
SECTION 11.10 No Recourse ................................................... 32
SECTION 11.11 Headings ...................................................... 33
SECTION 11.12 GOVERNING LAW ................................................. 33
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Certificate of Trust
EXHIBIT C Form of Transferor Certificate
EXHIBIT D Form of Investment Letter
EXHIBIT E [Reserved]
EXHIBIT F Forms of Receivables
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TRUST AGREEMENT
This TRUST AGREEMENT is dated July 10, 2002, between WORLD OMNI
AUTO RECEIVABLES LLC, a Delaware limited liability company, as depositor, and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking association,
as owner trustee.
ARTICLE I
DEFINITIONS
SECTION 1.01 Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Administration
Agreement, dated as of the date hereof, among the Administrator, the Trust and
the Indenture Trustee, as amended from time to time.
"Administrator" shall mean World Omni, or any successor
Administrator under the Administration Agreement.
"Agreement" shall mean this Trust Agreement, as the same may be
amended and supplemented from time to time.
"Basic Documents" shall have the meaning assigned in the
Indenture.
"Benefit Plan" shall have the meaning assigned to such term in
Section 3.04.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code (S) 3801 et seq., as the same may be amended from
time to time.
"Certificate of Trust" shall mean the Certificate of Trust in the
form of Exhibit B filed for the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" and "Certificate Registrar" shall mean the
register mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificateholder" or "Holder" shall mean a Person in whose
name a Trust Certificate is registered in the Certificate Register.
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"Code" shall mean the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
c/o JPMorgan Chase Bank, 000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0/0xx Xxx., Xxxxxx,
Xxxxxxxx 00000, Attn: Institutional Trust Services, or at such other address as
the Owner Trustee may designate by notice to the Certificateholders and the
Depositor, or the principal corporate trust office of any successor Owner
Trustee at the address designated by such successor Owner Trustee by notice to
the Certificateholders and the Depositor.
"Depositor" shall mean World Omni Auto Receivables LLC in its
capacity as depositor hereunder.
"ERISA" shall have the meaning assigned thereto in Section
3.04.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.02.
"Indenture" shall mean the Indenture, dated as of the date
hereof, between the Trust and the Indenture Trustee, as amended and supplemented
from time to time.
"Indenture Trustee" shall mean The Bank of New York, a New
York banking corporation, not in its individual capacity but solely as indenture
trustee under the Indenture, and any successor Indenture Trustee.
"Issuer" shall mean the Trust.
"Owner Trust Estate" shall mean all right, title and interest
of the Trust in and to the property and rights assigned to the Trust pursuant to
Article II of the Sale and Servicing Agreement, all funds on deposit from time
to time in the Trust Accounts and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Sale and Servicing Agreement and the Administration Agreement.
"Owner Trustee" shall mean Chase Manhattan Bank USA, National
Association, a national banking association, not in its individual capacity but
solely as owner trustee under this Agreement, and any successor Owner Trustee
hereunder.
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"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.09 and shall initially be the Indenture Trustee.
"Percentage Interest" shall mean, with respect to each Trust
Certificate, the percentage interest in the Trust represented by such Trust
Certificate.
"Person" shall mean any individual, corporation, limited
liability company, estate, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated organization
or government or any agency or political subdivision thereof.
"Receivables Purchase Agreement" shall mean the Receivables
Purchase Agreement, dated as of the date hereof, between World Omni, as seller,
and the Depositor, as purchaser, as amended from time to time.
"Record Date" shall mean, with respect to any Payment Date,
the close of business on the day immediately preceding such Payment Date.
"Sale and Servicing Agreement" shall mean the Sale and
Servicing Agreement, dated as of the date hereof, among the Trust, as issuer,
the Depositor, as seller and World Omni, as servicer, as the same may be amended
or supplemented from time to time.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Servicer" shall mean World Omni, or any successor servicer
under the Sale and Servicing Agreement.
"Treasury Regulations" shall mean regulations, including
proposed or temporary Regulations, promulgated under the Code. References herein
to specific provisions of proposed or temporary regulations shall include
analogous provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the trust established by this Agreement.
"Trust Certificate" shall mean a certificate evidencing the
beneficial interest of a Certificateholder in the Trust, substantially in the
form attached hereto as Exhibit A.
"World Omni" shall mean World Omni Financial Corp., a Florida
corporation, and any successor in interest.
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SECTION 1.02 Other Definitional Provisions. (a) Capitalized terms used and
not otherwise defined herein have the meanings assigned to them in the Sale and
Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
ORGANIZATION
SECTION 2.01 Name. The Trust created hereby shall be known as "World
Omni Auto Receivables Trust 2002-A" 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.
SECTION 2.02 Office. 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 2.03 Purposes and Powers. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue and cause to be authenticated the Notes
pursuant to the Indenture and the Trust Certificates pursuant to this
Agreement and to transfer the Notes and the Certificates to the
Depositor;
(ii) with the proceeds of the sale of the Notes, to
purchase the Receivables and to pay the organizational, start-up and
transactional expenses of the Trust;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate pursuant to the Indenture (including the
filing of financing statements in connection therewith) and to hold,
manage and distribute to the Certificateholders pursuant to the terms
of the Sale and Servicing Agreement any portion of the Owner Trust
Estate released from the Lien of, and remitted to the Trust pursuant
to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith;
(vi) to give the Issuer Order (as defined in the
Indenture) to the Indenture Trustee to authenticate and deliver the
Notes; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the
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Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
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 Basic
Documents.
SECTION 2.04 Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, the sum of $1 previously delivered. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate.
The Depositor shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the 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 the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. The Trust is not intended to be a business
trust within the meaning of Section 101(9)(A)(v) of the Bankruptcy Code. It is
also the intention of the parties hereto that, solely for Federal, state and
local income and franchise tax purposes, on and after the Closing Date, (a) so
long as the Trust has only one Certificateholder, the Trust shall be disregarded
as a separate entity and (b) at such time as the Trust has more than one
Certificateholder, the Trust will be treated as a partnership, with the assets
of the partnership being the Receivables and other assets held by the Trust, the
partners of the partnership being the Certificateholders, and the Notes being
non-recourse debt of the partnership. The Depositor (and any future
Certificateholder by the purchase of the Trust Certificate will be deemed to
have agreed) and the Owner Trustee agree to take no action inconsistent with
such tax treatment. The Trust shall not elect to be treated as an association
under Treasury Regulations Section 301.7701-3(a). The parties agree that, unless
otherwise required by appropriate tax authorities, the sole Certificateholder or
the Trust, as applicable, will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the foregoing
characterization of the Trust for such tax purposes. Effective as of the date
hereof, the Owner Trustee, shall have all rights, powers and duties set forth
herein and in the Business Trust Statute with respect to accomplishing the
purposes of the Trust. Any action taken on behalf of the Trust prior to the
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date hereof with respect to the filing of financing statements or the
Certificate of Trust is hereby ratified.
SECTION 2.07 Liability of the Depositor and the
Certificateholders. (a) The Depositor shall be liable directly to and will
indemnify any injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent not paid out of the
Owner Trust Estate) to the extent that the Depositor would be liable if the
Trust were a partnership under the Delaware Revised Uniform Limited Partnership
Act in which the Depositor were a general partner; provided, however, that the
Depositor shall not be liable for any losses incurred by a Certificateholder in
the capacity of an investor in the Trust Certificates, or by a Noteholder in the
capacity of an investor in the Notes. In addition, any third party creditors of
the Trust (other than in connection with the obligations described in the
preceding sentence for which the Depositor shall not be liable) shall be deemed
third party beneficiaries of this Section 2.07.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or obligation
of the Trust.
SECTION 2.08 Title to Trust Property. Legal title to all 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 2.09 Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or the
State of New York. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
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 organized and validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with 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 is duly qualified to do business as a foreign
limited liability company in good standing, and has obtained all necessary
material licenses and approvals, in all
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jurisdictions in which the ownership or lease of property or the conduct of its
business shall frequire such qualifications, except where the failure to be so
qualified or to have obtained such licenses or approvals would not have a
material adverse effect on the Depositor's earnings, business affairs or
business prospects.
(c) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full power
and authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary action; and the execution,
delivery and performance of this Agreement have been duly authorized by the
Depositor by all necessary action.
(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) a default under, the limited liability
company agreement or bylaws of the Depositor; (ii) breach, conflict with or
violate any of the material terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound;
(iii) 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 (iv) 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, except, in the case of
clauses (ii), (iii) and (iv), for such breaches, defaults, conflicts, liens or
violations that would not have a material adverse effect on the Depositor's
earnings, business affairs or business prospects.
(e) To the Depositor's best knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties: (A) asserting the invalidity of this
Agreement or any of the other Basic Documents, (B) seeking to prevent the
issuance of the Trust Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic Documents,
(C) seeking any determination or ruling that could reasonably be expected to
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or any
of the other Basic Documents or (D) involving the Depositor and which might
materially and adversely affect the federal income tax or other federal, state
or local tax attributes of the Trust Certificates.
SECTION 2.11 Financing Statements. The Trust hereby authorizes
the filing of financing statements in connection with the grant of a security
interest to the Indenture
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Trustee pursuant to the granting clause of the Indefnture. In addition, the
Trust hereby ratifies any such financing statements filed prior to the date
hereof.
SECTION 2.12 Amended and Restated Trust Agreement. This Trust
Agreement is the amended and restated trust agreement contemplated by the Trust
Agreement dated as of June 17, 2002 between the Seller and the Owner Trustee
(the "Initial Trust Agreement"). This Trust Agreement amends and restates in its
entirety the Initial Trust Agreement.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 [Reserved]
SECTION 3.02 The Trust Certificates. The Trust Certificates
shall represent a 100% Percentage Interest in the Trust. On the date hereof, the
Depositor or its designee shall be the sole Holder of each of the Trust
Certificates and each of the Trust Certificates shall be registered, upon
initial issuance, in the name of the Depositor or its designee. The Trust
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee. Trust 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 Trust, 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
Trust Certificates or did not hold such offices at the date of authentication
and delivery of such Trust Certificates.
A transferee of a Trust 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 Trust Certificate duly registered in such transferee's name pursuant to
Section 3.04.
SECTION 3.03 Authentication of Trust Certificates. On the
Closing Date, the Owner Trustee shall cause the Trust Certificates to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor signed by the Depositor's president, any vice
president, secretary, treasurer or any assistant treasurer, without further
company action by the Depositor. No Trust Certificate shall entitle its Holder
to any benefit under this Agreement or be valid for any purpose unless there
shall appear on such Trust 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 Trust Certificate shall have been duly authenticated and delivered
hereunder. All Trust Certificates shall be dated the date of their
authentication.
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SECTION 3.04 Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. JPMorgan Chase
Bank shall be the initial Certificate Registrar.
The Trust 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 said
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 Holder
desiring to effect such transfer and such Holder's prospective transferee shall
each certify to the Owner Trustee and the Depositor in writing the facts
surrounding the transfer in substantially the forms set forth in Exhibit C (the
"Transferor Certificate") and Exhibit D (the "Investment Letter"). Except in the
case of a transfer as to which the proposed transferee has provided an
Investment Letter with respect to a Rule 144A transaction, there shall also be
delivered to the Owner Trustee an opinion of counsel that such transfer may be
made pursuant to an exemption from the Securities Act and state securities laws,
which opinion of counsel shall not be an expense of the Trust, the Owner Trustee
or the Indenture Trustee (unless it is the transferee from whom such opinion is
to be obtained) or of the Depositor or World Omni; provided that such opinion of
counsel in respect of the applicable state securities laws may be a memorandum
of law rather than an opinion if such counsel is not licensed in the applicable
jurisdiction. The Depositor shall provide to any Holder of a Certificate and any
prospective transferee designated by any such Holder information regarding the
Certificates and the Receivables and 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 Holder of a Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Issuer, the Owner Trustee, the Indenture Trustee,
the Depositor and World Omni (in any capacity) 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.
No transfer of a Trust Certificate shall be made to any Person
unless the Owner Trustee has received (A) a certificate in the form of paragraph
3 to the Investment Letter attached hereto as Exhibit D from such Person to the
effect that such Person 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")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity (each,
a "Benefit Plan") or (B) an opinion of counsel satisfactory to the Owner Trustee
and the Depositor to the effect that the purchase and holding of
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such Trust Certificate will not constitute or result in the assets of the Issuer
being deemed to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will not subject the Owner
Trustee, the Indenture Trustee or the Depositor to any obligation in addition to
those undertaken in the Basic Documents; provided, however, that the Owner
Trustee will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the Owner
Trustee has rendered an opinion to the effect that the purchase and holding of a
Trust Certificate by a Benefit Plan or a Person that is purchasing or holding
such a Trust Certificate with the assets of a Benefit Plan will not constitute
or result in a prohibited transaction under ERISA or Section 4975 of the Code.
The preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Issuer, the Owner Trustee, the Indenture Trustee,
World Omni (in any capacity) or the Depositor. Any attempted or purported
transfer in violation of these transfer restrictions will be null and void and
will vest no rights in any purported transferee.
The Owner Trustee shall cause each Certificate to contain a
legend stating that transfer of the Certificates is subject to certain
restrictions and referring prospective purchasers of the Certificates to the
terms of this Agreement with respect to such restrictions.
Upon surrender for registration of transfer of any Trust
Certificate at the office or agency maintained pursuant to Section 3.08, the
Owner Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Trust Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Holder, Trust Certificates may be exchanged for other Trust Certificates of
authorized denominations of a like aggregate amount upon surrender of the Trust
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.08.
Every Trust Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Trust Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer
or exchange of Trust 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 Trust Certificates.
The preceding provisions of this Section notwithstanding, the
Owner Trustee shall not make, and the Certificate Registrar shall not register
transfers or exchanges of, Trust Certificates for a period of 15 days preceding
the due date for any payment with respect to the Trust Certificates.
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SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If (a) any mutilated Trust 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 Trust 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 Trust Certificate has been
acquired by a bona fide 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 Trust
Certificate, a new Trust Certificate of like tenor and denomination. In
connection with the issuance of any new Trust Certificate under this Section,
the Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
SECTION 3.06 Persons Deemed Owners. Prior to due presentation of
a Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent may treat the Person in whose name any
Trust Certificate is registered in the Certificate Register as the owner of such
Trust Certificate for the purpose of receiving distributions pursuant to Section
5.02 and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any Paying Agent shall be bound by any notice to the
contrary.
SECTION 3.07 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Depositor, within 15 days after receipt by the Owner Trustee of
a written request therefor from the Servicer or the Depositor, a list, in such
form as the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders or one or more Holders of Trust Certificates
evidencing not less than a 25% Percentage Interest of the Certificates 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 Trust Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Trust 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.
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SECTION 3.08 Maintenance of Office or Agency. The Owner Trustee
shall maintain in the State of New York, an office or offices or agency or
agencies where Trust Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Trust Certificates and the Basic Documents may be served. The
Owner Trustee initially designates offices of JPMorgan Chase Bank, 00 Xxxxx
Xxxxxx, Xxx Xxxx , Xxx Xxxx 00000, as its 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 3.09 Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders pursuant to Section 5.02 and shall
report the amounts of such distributions to the Owner Trustee. Any Paying Agent
shall have the revocable power to withdraw funds from the Collection Account for
the purpose of making the distributions referred to above. The Owner Trustee may
revoke such power and remove the Paying Agent if the Owner Trustee determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Indenture Trustee
will be the initial Paying Agent. In the event that the Indenture Trustee shall
no longer be the Paying Agent, the Owner Trustee shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The Owner Trustee
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Owner Trustee to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that, as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01 Prior Notice to Certificateholders with Respect to
Certain Matters. With respect to the following matters, the Owner Trustee shall
not take action unless, at least 30 days before the taking of such action, the
Owner Trustee shall have notified the Certificateholders in writing of the
proposed action and the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the Receivables)
and the compromise of
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any action, claim or lawsuit brought by or against the Trust (except with
respect to the aforementioned claims or lawsuits for collection 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
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially adversely affect the
interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable.
SECTION 4.02 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
written direction of the Certificateholders, to (a) remove the Administrator
under the Administration Agreement pursuant to Section 1.08 thereof, (b) appoint
a successor Administrator under the Administration Agreement pursuant to Section
1.08 thereof, (c) remove the Servicer under the Sale and Servicing Agreement
pursuant to Section 8.01 thereof or (d) except as expressly provided in the
Basic Documents, sell the Receivables after the termination of the Indenture.
The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Certificateholders.
SECTION 4.03 Action by Certificateholders with Respect to
Bankruptcy. To the fullest extent permitted by applicable law, the Owner Trustee
shall not have any power to, and shall not, (i) institute proceedings to have
the Trust declared or adjudicated a bankrupt or insolvent, (ii) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (iii)
file a petition or consent to a petition seeking reorganization or relief on
behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (iv) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the assets of the Trust, (v) make any assignment for the benefit of
the Trust's creditors, (vi) cause the Trust to admit in writing its inability to
pay its debts generally as they become due, or (vii) take any action, or cause
the Trust to take any
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action, in furtherance of any of the foregoing (any of the above, a "Bankruptcy
Action"). So long as the Indenture remains in effect, no Certificateholder shall
have the power to take, and shall not take, any Bankruptcy Action with respect
to the Trust or direct the Owner Trustee to take any Bankruptcy Action with
respect to the Trust.
SECTION 4.04 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 Basic
Documents or would be contrary to Section 2.03 or contrary to applicable law,
nor shall the Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.05 Majority Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Trust Certificates evidencing in the
aggregate not less than a 50% 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 Trust Certificates
evidencing in the aggregate not less than a 50% Percentage Interest at the time
of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 [Reserved]
SECTION 5.02 Application of Trust Funds. (a) On each Payment
Date, subject to Section 5.02(b) hereof, the Paying Agent shall distribute to
Certificateholders, on a pro rata basis, amounts pursuant to Section
5.06(ii)(F), (iii)(E) or (iv)(E) or Section 5.07(d) of the Sale and Servicing
Agreement with respect to such Payment Date.
(b) The Holders of 100% Percentage Interest of the Certificates
will have the right, but not the obligation, in their sole discretion, to
instruct the Indenture Trustee in writing to retain in the Collection Account
all or a portion of distributions otherwise payable to them pursuant to Section
5.06(ii)(F), (iii)(E) or (iv)(E) or Section 5.07(d) of the Sale and Servicing
Agreement. If the Certificateholders make this election, these amounts will be
treated as collections during the then-current Collection Period and the
Certificateholders will have no claim to such amounts (unless distributed on a
subsequent Payment Date pursuant to Section 5.06(ii)(F) of the Sale and
Servicing Agreement).
(c) On each Payment Date, the Paying Agent shall send to each
Certificateholder copies of the statement or statements provided to the Owner
Trustee by the
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Servicer pursuant to Section 5.08 of the Sale and Servicing Agreement with
respect to such Payment Date.
SECTION 5.03 Method of Payment. Subject to Section 9.01(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 (x) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions no later than the Record Date prior to such
Payment Date, or (y) if such Holder does not qualify under clause (x), by check
mailed to such Certificateholder at the address of such holder appearing in the
Certificate Register.
SECTION 5.04 No Segregation of Monies; No Interest. Subject to
Section 5.02, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05 Accounting and Reports to the Certificateholders,
the Internal Revenue Service and Others. The Administrator shall deliver to each
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, or as may be requested by such Certificateholder, such information,
reports or statements as may be necessary to enable each Certificateholder to
prepare its federal and state income tax returns. Consistent with the Trust's
characterization for tax purposes as a disregarded entity so long as the
Depositor or any other Person is the sole Certificateholder, no federal income
tax return shall be filed on behalf of the Trust unless either (i) the Owner
Trustee shall be provided with an Opinion of Counsel that, based on a change in
applicable law occurring after the date hereof, or as a result of a transfer
permitted by Section 3.04, the Code requires such a filing or (ii) the Internal
Revenue Service shall determine that the Trust is required to file such a
return. In the event that there shall be two or more beneficial owners of the
Trust, the Administrator shall inform the Indenture Trustee in writing of such
event, (x) the Administrator shall prepare or shall cause to be prepared federal
and, if applicable, state or local partnership tax returns, with all such
necessary information provided to it, required to be filed by the Trust and
shall remit such returns to the Depositor (or if the Depositor no longer owns
any Certificates, the Certificateholder designated for such purpose by the
Depositor to the Owner Trustee in writing) at least (5) days before such returns
are due to be filed, and (y) capital accounts shall be maintained by the
Administrator for each Certificateholder in accordance with the Treasury
Regulations under Section 704(b) of the Code reflecting each such
Certificateholder's share of the income, gains, deductions, and losses of the
Trust and/or guaranteed payments made by the Trust and contributions to, and
distributions from, the Trust. The Depositor (or such designee
Certificateholder, as applicable) shall promptly sign such returns and deliver
such returns after signature to the Administrator and such returns shall be
filed by the Administrator with the appropriate tax authorities. In the event
that a "tax
16
matters partner" (within the meaning of Code Section 6231(a)(7)) is required to
be appointed with respect to the Trust, the Depositor or its designee is hereby
designated as tax matters partner or, if the Depositor is not a
Certificateholder, the Certificateholder selected by a majority of the
Certificateholders (by Percentage Interest) shall be designated as tax matters
partner. In no event shall the Certificateholder or the Depositor (or such
designee Certificateholder, as applicable) be liable for any liabilities, costs
or expenses of the Trust or the Noteholders arising out of the application of
any tax law, including federal, state, foreign or local income or excise taxes
or any other tax imposed on or measured by income (or any interest, penalty or
addition with respect thereto or arising from a failure to comply therewith)
except for any such liability, cost or expense attributable to any negligent act
or omission by the Owner Trustee or the Depositor (or such designee
Certificateholder, as applicable), as the case may be, in breach of its
obligations under this Agreement.
SECTION 5.06 Signature on Returns.
The Depositor (or, if the Depositor no longer owns any of the
Certificates, the Certificateholder designated for such purpose pursuant to
Section 5.05) shall sign the tax returns of the Trust on behalf of the Trust,
unless applicable law requires the Owner Trustee to sign such documents, in
which case such documents shall be signed by the Owner Trustee, as required by
applicable law.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 General Authority. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and, in
each case, in such form as the Depositor shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to take
all actions required of the Trust pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
SECTION 6.02 General Duties. 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 to administer the Trust in the
interest of the Certificateholders, subject to the Basic Documents and in
accordance with the provisions of this Agreement. Notwithstanding the foregoing,
the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee or the Trust hereunder or under
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any 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.
SECTION 6.03 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. Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Article IV.
(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 Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any 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 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 Basic Documents, as it shall deem
necessary, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any 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 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 Basic
Documents, as it shall deem necessary, and shall have no liability to any Person
for such action or inaction.
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SECTION 6.04 No Duties Except as Specified in this Agreement or
in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 6.03; and no implied duties or obligations
shall be read into this Agreement or any 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 filing, including any Securities and
Exchange Commission filing for the Trust or to record this Agreement or any
Basic Document. The Owner Trustee nevertheless agrees that it will promptly take
all action as may be necessary to discharge any liens on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee
that are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 6.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (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 Basic Documents
or (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
SECTION 6.06 Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.06.
SECTION 6.07 Issuance of Notes. The Owner Trustee is hereby
authorized and directed on behalf of the Trust to issue the Notes pursuant to
the Indenture.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement.
The Owner Trustee shall not be answerable or accountable hereunder or under any
Basic Document under any circumstances, except (i) for its own willful
misconduct or
19
negligence (including where such willful misconduct or negligence results in
non-compliance with any covenant or agreement of the Owner Trustee herein), (ii)
for liabilities arising from the failure by the Owner Trustee to perform
obligations expressly undertaken by it in the last sentence of Section 6.04
hereof, (iii) for any profits on investments made by the Owner Trustee in
JPMorgan Chase Bank (in its individual capacity) in its commercial capacity,
(iv) in the case of the inaccuracy of any representation or warranty contained
in Section 7.03 or Section 7.04 expressly made by the Owner Trustee or (v) for
federal or state taxes, fees or other charges, based on or measured by any fees,
commissions or compensation received by the Owner Trustee in connection with any
of the transactions contemplated by this Agreement or any of the Basic
Documents. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made by a Trust 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 them in accordance with the instructions
of the Administrator or any Certificateholder (provided that the instructions
have been given by the requisite Percentage Interest of the Certificates
pursuant to this Agreement or one of the Basic Documents, as applicable);
(c) No provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of their rights or powers
hereunder or under any 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 them;
(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;
(e) The Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, other than the certificate of
authentication on the Trust Certificates, and the Owner Trustee shall not in any
event assume or incur any liability, duty or obligation to any Noteholder or to
any Certificateholder, other than as expressly provided for herein;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Depositor, the Indenture Trustee or the
Servicer under any of the Basic Documents or otherwise, and the Owner Trustee
shall not have any obligation or liability to perform the obligations of the
Trust under this Agreement or the Basic Documents that are
20
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer or the
Depositor under the Sale and Servicing Agreement;
(g) The Owner Trustee shall not be under any obligation to
exercise any of the rights or powers vested in them by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to them reasonable security or indemnity satisfactory to the Owner
Trustee against the costs, expenses and liabilities that may be incurred by them
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than their
negligence or willful misconduct in the performance of any such act;
(h) The Owner Trustee shall not be liable for any losses due to
forces beyond the control of the Owner Trustee, including without limitation
strikes, work stoppages, acts of war or terrorism, insurrection, revolution,
nuclear or natural catastrophes or acts of God and interruptions, loss or
malfunctions of utilities or communications services; and
(i) In no event shall the Owner Trustee be personally liable (i)
for special, consequential or punitive damages, (ii) for the acts or omissions
of its nominees, correspondents, clearing agencies or securities depositories
and (iii) for the acts or omissions of brokers or dealers. The Owner Trustee
shall have no responsibility for the accuracy of any information provided to the
Holders or any other Person that has been obtained from, or provided to the
Owner Trustee.
SECTION 7.02 Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents. The Owner Trustee shall have no
responsibility for the accuracy of any information provided to the
Certificateholders or any other Person that has been obtained from, or provided
to the Owner Trustee.
SECTION 7.03 Representations and Warranties of the Owner
Trustee. The Owner Trustee hereby represents and warrants to the Depositor, for
the benefit of the Certificateholders, that:
(a) It is a national banking association duly formed and validly
existing under the federal laws of the United States of America. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
21
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will (i)
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on it, (ii) constitute any default under its charter documents or
bylaws, (iii) constitute any default under any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound or (iv) result in the creation or imposition of any lien, charge or
encumbrance on the Owner Trust Estate resulting from actions by or claims
against the Owner Trustee which are unrelated to this Agreement or the other
Basic Documents.
(d) It has the power and authority to execute and deliver this
Agreement and, on behalf of the Trust, the other Basic Documents to which the
Trust is a party and to carry out their respective terms; and the execution,
delivery, and performance of this Agreement by it and the other Basic Documents
to which the Trust is a party have been duly authorized by all necessary
corporate action.
(e) This Agreement constitutes the legal, valid, and binding
obligation of the Owner Trustee, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or at law.
SECTION 7.04 [Reserved]
SECTION 7.05 Reliance; Advice of Counsel. (a) The Owner Trustee
shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion, bond,
or other document or paper (whether in its original or facsimile form) 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 corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by its president or
any vice president or by the treasurer or other authorized officers, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
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(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with it, 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 which it believes to be authorized or within its rights or powers, in
accordance with the opinion or advice of any such counsel, accountants or other
such Persons and not to its knowledge contrary to this Agreement or any Basic
Document.
SECTION 7.06 Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created, Chase
Manhattan Bank USA, National Association acts solely as Owner Trustee hereunder
and not in its individual capacity, and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by this Agreement or
any Basic Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
SECTION 7.07 Owner Trustee Not Liable for Trust Certificates or
Receivables. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement, of any Basic Document or of the Trust
Certificates (other than the signature and countersignature of the Owner Trustee
on the Trust Certificates) or the Notes, or of any Receivable or related
documents. The Owner Trustee shall not at any 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 of 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 Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Owner Trustee.
SECTION 7.08 Owner Trustee May Own Trust Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the owner
or pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture
23
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder during the term
of this Agreement such fees as have been separately agreed upon in writing
before the date hereof between the Administrator and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Administrator pursuant
to the Administration Agreement for its other reasonable and documented expenses
hereunder, including the reasonable and documented compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
SECTION 8.02 Indemnification. Pursuant to the Administration
Agreement, the Administrator shall be liable as primary obligor for, and shall
indemnify the Owner Trustee and its officers, directors, employees, successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable and documented costs, expenses and
disbursements (including reasonable and documented legal fees and expenses) of
any kind and nature whatsoever (collectively, "Expenses") which may at any time
be imposed on, incurred by or asserted against any Indemnified Party in any way
relating to or arising out of this Agreement, the Basic Documents, the Owner
Trust Estate, the administration of the Owner Trust Estate or the action or
inaction of any Indemnified Party hereunder, except only that the Administrator
shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from any of the matters described in
clauses (i), (ii), (iii), (iv) or (v) of the third sentence of Section 7.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. In any
event of any claim, action or proceeding for which indemnity is sought pursuant
to this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Administrator, which approval shall not be unreasonably
withheld.
SECTION 8.03 Payments to the Owner Trustee. Any amounts paid to
the Owner Trustee pursuant to this Article VIII shall be deemed not to be a part
of the Owner Trust Estate simultaneously with such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no further
force or effect upon the final distribution by the Owner Trustee of all monies
or other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture, the Sale and Servicing Agreement and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the Trust
or (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 or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Payment Date upon which Certificateholders shall surrender their Trust
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Paying Agent by letter to Certificateholders
mailed within five Business Days of receipt of actual notice of such termination
from the Servicer given pursuant to Section 9.01(b) of the Sale and Servicing
Agreement, stating (i) the Payment Date upon or with respect to which final
payment of the Trust Certificates shall be made upon presentation and surrender
of the Trust Certificates at the office of the Paying Agent therein designated,
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Payment Date is not applicable, and, as a result,
payments will be made only upon presentation and surrender of the Trust
Certificates by Certificateholders at the office of the Paying Agent therein
specified. The Paying Agent shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Owner Trustee at the time such notice
is given to Certificateholders. Upon presentation and surrender of the Trust
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.02.
In the event that all of the Certificateholders shall not
surrender their Trust Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Owner Trustee shall
give a second written notice to the remaining Certificateholders to surrender
their Trust Certificates for cancellation and receive the final distribution
with respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds
25
remaining in the Owner Trust Estate after exhaustion of such remedies shall be
distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation (as provided to it) with the Secretary of State of
the State of Delaware in accordance with the provisions of Section 3810 of the
Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute and it shall at all times be
authorized to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authorities and having (or having a parent which has) a
long-term rating of at least "A" (or the equivalent) by each Rating Agency. If
such corporation shall publish reports of condition at least annually pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign promptly in the
manner and with the effect specified in Section 10.02.
SECTION 10.02 Resignation or Removal of Owner Trustee. (a)
Subject to paragraph (c) of this Section, the Owner Trustee may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Administrator. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee, as applicable, may petition (at the expense of the
Depositor) any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
(b) Subject to paragraph (c) of this Section, if at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
Section 10.01 and shall fail to resign after written request therefor by the
Administrator, or if at any time the Owner Trustee shall be legally unable to
act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Administrator
may remove the Owner Trustee. If the
26
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 the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to each Rating
Agency.
SECTION 10.03 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective, and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement, and the Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided
in this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Upon written acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice thereof to
all Certificateholders, the Indenture Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 business
days after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
Any successor Owner Trustee appointed hereunder shall promptly
file an amendment to the Certificate of Trust with the Secretary of State of the
State of Delaware as required by the Business Trust Statute.
SECTION 10.04 Merger or Consolidation of the Owner Trustee. Any
corporation or other entity into which the Owner Trustee may be merged or
converted or with
27
which it may be consolidated, or any corporation or other entity resulting from
any merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all
of the corporate trust business of the Owner Trustee, shall be the successor to
and assume all obligations of the Owner Trustee, without the execution or filing
of any assignment or other instrument or any further act on the part of such
other entity or any of the parties hereto, anything herein to the contrary
notwithstanding; provided, that such corporation shall be eligible pursuant to
Section 10.01 and, provided, further, that the Owner Trustee shall mail notice
of such merger or consolidation to each Rating Agency.
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) All rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to the
extent that, under any law of any jurisdiction in which any particular act or
acts are to be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(b) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement; and
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(c) The Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee without notice to any Rating Agency or any other Person.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Supplements and Amendments. This Agreement may
be amended by the Depositor and the Owner Trustee, without the consent of any of
the Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provision in this Agreement or for the purpose of adding any
provision to or changing in any manner or eliminating any of the provisions in
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders. Such amendments require: (i) satisfaction of the Rating
Agency Condition and (ii) an officer's certificate of the Depositor stating that
the amendment will not materially and adversely affect the interest of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with the consent of holders of at least 50% of
the Outstanding Amount of the Controlling Securities (as defined in the
Indenture) and the consent of the Certificateholders evidencing not less than a
50% Percentage Interest of the Trust Certificates, 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 (a)
increase or reduce in any manner the
29
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made for the benefit
of the Noteholders or the Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Controlling Securities and the
Percentage Interest in the Trust Certificates required to consent to any such
amendment, without the consent of the holders of all the outstanding Notes and
Certificates affected thereby.
Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Administrator and the Administrator shall furnish
such notice to each Certificateholder, the Indenture Trustee and each Rating
Agency.
It shall not be necessary for the consent of
Certificateholders, Noteholders or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
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 of the State of Delaware.
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 that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
In connection with the execution of any amendment to this
Agreement or any amendment of any other agreement to which the Issuer is a
party, the Owner Trustee shall be entitled to receive and conclusively rely upon
an Opinion of Counsel or certificate of the Administrator to the effect that
such amendment is authorized or permitted by the Basic Documents and that all
conditions precedent in the Basic Documents for the execution and delivery
thereof by the Issuer or the Owner Trustee, as the case may be, have been
satisfied.
SECTION 11.02 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the
30
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 11.03 Limitations on Rights of Others. Except for
Section 2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders, the Administrator, the
Servicer and, to the extent expressly provided herein, the Indenture Trustee and
the Noteholders, and nothing in this Agreement (other than Section 2.07 hereof),
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.04 Notices. (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 on the next
Business Day after delivery if delivered by a recognized overnight courier or
upon receipt of written confirmation of receipt of facsimile, if delivered by
facsimile (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 Corporate Trust Office, telephone: (000) 000-0000, facsimile: (302)
552-6280; if to the Depositor, addressed to World Omni Auto Receivables LLC, 000
Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 00000, telephone: (000) 000-0000,
facsimile: (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxxxx; 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 Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
SECTION 11.05 Severability. 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 11.06 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 11.07 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the Depositor and its permitted assignees, the Owner Trustee and its
successors, and each Certificateholder and its
31
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by a Certificateholder
shall bind the successors and assigns of such Certificateholder.
SECTION 11.08 Covenants of the Depositor. In the event that
any Certificateholder commences any litigation with claims in excess of
$1,000,000 to which the Depositor is a party which in the judgment of counsel to
the Depositor who may be an employee of the Depositor, shall be reasonably
likely to result in a material judgment against the Depositor that the Depositor
will not be able to satisfy, during the period beginning nine months following
the commencement of such litigation and continuing until such litigation is
dismissed or otherwise terminated (and, if such litigation has resulted in a
final judgment against the Depositor, such judgment has been satisfied), the
Depositor shall not pay any dividend to World Omni, or make any distribution to
World Omni, or repay the principal amount of any indebtedness of the Depositor
held by World Omni, unless (i) after giving effect to such dividend,
distribution or repayment, the Depositor's liquid assets shall not be less than
the amount of actual damages claimed in such litigation that are reasonably
likely to equal the amount of the judgment, if any, against the Depositor or
(ii) the Rating Agency Condition shall have been satisfied with respect to any
such dividend, distribution or repayment. The Depositor will not at any time
institute against the Trust any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, the Trust Agreement or any of the
Basic Documents.
SECTION 11.09 No Petition. To the fullest extent permitted by
applicable law, the Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the
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
Trust Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.10 No Recourse. Each Certificateholder by accepting
a Trust Certificate acknowledges that such Certificateholder's Trust
Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Depositor, the 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 Trust Certificates
or the Basic Documents to which such parties are a party.
32
SECTION 11.11 Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.12 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY
OTHERWISE APPLICABLE CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
* * * * * *
33
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.
WORLD OMNI AUTO RECEIVABLES LLC,
as Depositor
By: /s/ Xxxx Xxxxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Assistant Treasurer
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION not in
its individual capacity but
solely as Owner Trustee,
By: /s/ Xxxxx Xxxxx
----------------------------
Name:
Title:
Trust Agreement
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED TO THE NOTES, AS AND TO THE EXTENT SET FORTH IN
THE SALE AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE SECURITIES OR BLUE SKY
LAWS OF ANY STATE IN THE UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS CERTIFICATE THE HOLDER HEREOF IS DEEMED TO REPRESENT TO THE
DEPOSITOR AND THE OWNER TRUSTEE (i) THAT IT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
1933 ACT (AN "ACCREDITED INVESTOR") AND THAT IT IS ACQUIRING THIS CERTIFICATE
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER
IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF,
(ii) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE 1933 ACT (A "QUALIFIED INSTITUTIONAL BUYER") AND IS ACQUIRING SUCH
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS) OR (iii) THAT IT IS AN INVESTOR THAT IS OTHERWISE PERMITTED TO ACQUIRE
THIS CERTIFICATE UNDER THE TRUST AGREEMENT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE BY ANY PERSON
UNLESS EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE DEPOSITOR,
(ii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN ACCREDITED INVESTOR THAT
EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE TRUST
AGREEMENT, TO THE EFFECT THAT IT IS AN ACCREDITED INVESTOR ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, SUCH SALE, PLEDGE OR OTHER
TRANSFER IS MADE TO A PERSON WHO THE PROSPECTIVE TRANSFEROR REASONABLY BELIEVES
AFTER DUE INQUIRY IS A QUALIFIED INSTITUTIONAL BUYER, ACTING FOR ITS OWN ACCOUNT
(AND NOT
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FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (iv) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT, IN WHICH CASE THE OWNER TRUSTEE SHALL
REQUIRE THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND THE DEPOSITOR. EXCEPT IN THE CASE OF A TRANSFER
DESCRIBED IN CLAUSES (i) OR (iii) ABOVE, THE OWNER TRUSTEE SHALL REQUIRE A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE DEPOSITOR,
ANY AFFILIATE OF THE DEPOSITOR OR THE OWNER TRUSTEE) SATISFACTORY TO THE
DEPOSITOR AND THE OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT
VIOLATE THE 1933 ACT.
EACH SECURITYHOLDER, BY ITS ACCEPTANCE OF THIS SECURITY, COVENANTS AND AGREES
THAT SUCH SECURITYHOLDER, SHALL NOT, PRIOR TO THE DATE THAT IS ONE YEAR AND ONE
DAY AFTER THE TERMINATION OF THE TRUST AGREEMENT, ACQUIESCE, PETITION OR
OTHERWISE INVOKE OR CAUSE THE TRUST OR THE DEPOSITOR TO INVOKE THE PROCESS OF
ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING
A CASE AGAINST THE TRUST OR THE DEPOSITOR UNDER ANY FEDERAL OR STATE BANKRUPTCY,
INSOLVENCY, REORGANIZATION OR SIMILAR LAW, OR APPOINTING A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE
TRUST OR THE DEPOSITOR OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE
WINDING UP OR LIQUIDATION OF THE AFFAIRS OF THE TRUST OR THE DEPOSITOR.
THIS CERTIFICATE WILL NOT BE REGISTERED FOR TRANSFER UNLESS THE OWNER TRUSTEE
RECEIVES EITHER (1) A REPRESENTATION FROM THE TRANSFEREE OF SUCH CERTIFICATE TO
THE EFFECT THAT SUCH TRANSFEREE NEITHER IS NOR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN") AND IS NOT
USING THE ASSETS OF A PLAN
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SUBJECT TO ERISA, THE CODE OR SIMILAR LAW TO INVEST IN THE CERTIFICATES OR (2)
IF THE TRANSFEREE IS A PLAN, OR IS ACTING ON BEHALF OF A PLAN TO INVEST IN THIS
CERTIFICATE, OR IS USING THE ASSETS OF A PLAN TO INVEST IN THIS CERTIFICATE, AN
OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE TO THE EFFECT THAT SUCH
TRANSFER WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO BE "PLAN
ASSETS" OR SUBJECT THE DEPOSITOR, THE SERVICER, THE OWNER TRUSTEE OR THE
INDENTURE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE TRUST
AGREEMENT, THE SALE AND SERVICING AGREEMENT AND THE ADMINISTRATION AGREEMENT,
INCLUDING ANY LIABILITIES ASSESSED FOR "PROHIBITED TRANSACTIONS" UNDER ERISA,
THE CODE OR SIMILAR LAW. ANY PURPORTED TRANSFER OF A CERTIFICATE TO OR ON BEHALF
OF A PLAN WITHOUT THE DELIVERY OF AN OPINION OF COUNSEL REFERRED TO IN CLAUSE
(2) ABOVE SHALL BE VOID AND OF NO EFFECT.
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NO.:
WORLD OMNI AUTO RECEIVABLES TRUST 2002-A
TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which consists of retail installment sale contracts for new and used
automobiles and light-duty trucks (collectively, the "Receivables"), all monies
received on or after the Cutoff Date; any proceeds with respect to the
Receivables from claims on any physical damage, credit life or disability,
theft, mechanical breakdown or "guaranteed auto protection" insurance policies
relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have
secured a Receivable and shall have been acquired by or on behalf of the
Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the
Sale and Servicing Agreement, including the right of the Depositor to cause
World Omni to purchase Receivables under certain circumstances; the Trust
Accounts; and certain other rights under the Trust Agreement and Sale and
Servicing Agreement and all proceeds of the foregoing (but excluding the Notes
and Trust Certificates).
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF WORLD
OMNI AUTO RECEIVABLES LLC, WORLD OMNI FINANCIAL CORP. OR ANY OF THEIR RESPECTIVE
AFFILIATES.
THIS CERTIFIES THAT ________________ is the registered owner
of ___% nonassessable, fully-paid, fractional undivided interest in World Omni
Auto Receivables Trust 2002-A (the "Trust"), formed by World Omni Auto
Receivables LLC, a Delaware limited liability company (the "Depositor").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION not
in its individual
capacity but solely as
Owner Trustee
By: ________________________
Authorized Signatory
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The Trust was created pursuant to a Trust Agreement dated June
17, 2002, (as amended and restated as of July 10, 2002 and as may be further
amended, restated or supplemented from time to time, the "Trust Agreement"),
between the Depositor, and Chase Manhattan Bank USA, National Association, as
owner trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement or the Sale and Servicing Agreement, dated as of July 10,
2002 (as amended and supplemented from time to time, the "Sale and Servicing
Agreement"), among the Trust, the Depositor and World Omni Financial Corp., as
servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates
designated as "Trust Certificates" (herein called the "Trust Certificates").
Also issued under an Indenture, dated as of July 10, 2002 (the "Indenture"),
between the Trust and The Bank of New York, as indenture trustee, are the Notes
designated as "Asset-Backed Notes" (the "Notes"). This Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Holder of this Trust Certificate by
virtue of its acceptance hereof assents and by which such Holder is bound. The
property of the Trust consists of retail installment sale contracts for new and
used automobiles and light-duty trucks (collectively, the "Receivables"), all
monies received after the Cutoff Date; any proceeds with respect to the
Receivables from claims on any physical damage, credit life or disability,
theft, mechanical breakdown or "guaranteed auto protection" insurance policies
relating to Financed Vehicles or Obligors; any Financed Vehicle that shall have
secured a Receivable and shall have been acquired by or on behalf of the
Depositor, the Servicer, or the Trust; the Receivables Purchase Agreement; the
Sale and Servicing Agreement, including the right of the Depositor to cause
World Omni to purchase Receivables under certain circumstances; the Trust
Accounts; and certain other rights under the Trust Agreement and Sale and
Servicing Agreement and all proceeds of the foregoing (but excluding the Notes
and Trust Certificates). The rights of the Certificateholders are subordinated
to the rights of the Noteholders, as and to the extent set forth in the Sale and
Servicing Agreement.
Under the Trust Agreement, there will be distributed on the
15/th/ of each month of each year or, if such day is not a Business Day, the
immediately following Business Day (each, a "Payment Date"), commencing on
August 15, 2002, to the Person in whose name this Trust Certificate is
registered at the close of business on the last day of the month immediately
preceding such Payment Date (the "Record Date"), such Certificateholder's
fractional undivided interest in the amount to be distributed to
Certificateholders on such Payment Date. No distributions will be made on any
Certificate on any Payment Date until the full amount of interest and principal
payable on the Notes on such Payment Date has been paid in full and the Reserve
Account has been replenished to its required amount, if necessary.
The Holder of this Trust Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Trust Certificate
are subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement and the Indenture.
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It is the intention of the Depositor, the Servicer and the
Certificateholders that, solely for Federal, state and local income and
franchise tax purposes, (a) so long as the Trust has only one Certificateholder,
the Trust will be disregarded as a separate entity and (b) at such time as the
Trust has more than one Certificateholder, the Trust will be treated as a
partnership. Neither the Servicer nor the Depositor or any Certificateholder
will take any action to the contrary.
Each Certificateholder, by its acceptance of a Trust
Certificate, covenants and agrees that such Certificateholder will not at any
time institute against the Depositor, or join in any institution against the
Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificates, the Notes, the Trust Agreement or any of the Basic
Documents.
Distributions on this Trust Certificate will be made as
provided in the Trust Agreement by the Owner Trustee by wire transfer or check
mailed to the Certificateholder without the presentation or surrender of this
Trust Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Trust Certificate will be made after due notice by the
Owner Trustee of the pendency of such distribution and only upon presentation
and surrender of this Trust Certificate at the office or agency maintained for
that purpose by the Owner Trustee in the City of New York, New York.
Reference is hereby made to the further provisions of this
Trust Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Trust Certificate shall not entitle the Holder hereof to any
benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-6
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Trust Certificate to be duly
executed.
WORLD OMNI AUTO RECEIVABLES
TRUST 2002-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee
Dated: _________________ By: ________________________
Authorized Signatory
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[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee, or any affiliates
of any of them and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement
or the Basic Documents. In addition, this Trust Certificate is not guaranteed by
any governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement. A copy of each of the Sale and Servicing Agreement and the
Trust Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the 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 Certificateholders of not less than a 50% Percentage Interest in
the Trust Certificates and holders of not less than 50% of the Outstanding
Amount of the Controlling Securities (as defined in the Indenture). Any such
consent by the Holder of this Trust Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Trust Certificate and of any
Trust Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent is made upon this Trust
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the Trust
Certificates.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Trust Certificate is
registerable in the Certificate Register upon surrender of this Trust
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Owner Trustee in The City of New York,
New York, accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon one
or more new Trust Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee. The
initial Certificate Registrar appointed under the Trust Agreement is JPMorgan
Chase Bank.
Except as provided in the Trust Agreement, the Trust Certificates
shall be issued in a 100% Percentage Interest. As provided in the Trust
Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
A-8
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 obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of all
property held as part of the Owner Trust Estate. The Servicer may at its option
purchase the Owner Trust Estate at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Trust Certificates; however,
such right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Original
Pool Balance.
A-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee) the within Trust Certificate, and all rights thereunder, and
hereby irrevocably constitutes and appoints ________________________, attorney,
to transfer said Trust 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 Trust 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-10
EXHIBIT B
CERTIFICATE OF TRUST OF
WORLD OMNI AUTO RECEIVABLES TRUST 2002-A
THIS Certificate of Trust of WORLD OMNI AUTO RECEIVABLES TRUST
2002-A (the "Trust"), is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C.(S)3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is World
Omni Auto Receivables Trust 2002-A.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, 000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0/0/xx/
Xxxxx, Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective
on June 17, 2002.
B-1
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Trust in accordance with Section 3811(a) of the Act.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
as Owner Trustee,
By: _______________________________
Name:
Title:
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EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
World Omni Auto Receivables LLC
000 Xxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Chase Manhattan Bank USA, National Association,
as Owner Trustee
World Omni Auto Receivables Trust 2002-A
Re: World Omni Auto Receivables Trust 2002-A
Trust Certificates
Ladies and Gentlemen:
In connection with our disposition of the above-referenced
Trust 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
World Omni Auto Receivables LLC
000 Xxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
The Bank of New York, as Owner Trustee
World Omni Auto Receivables Trust 2002-A
Ladies and Gentlemen:
In connection with our proposed purchase of Trust Certificates
(the "Certificates") of World Omni Auto Receivables Trust 2002-A (the "Issuer"),
we confirm that:
1. We understand that the Certificates have not
been registered under the Securities Act of 1933, as amended (the
"1933 Act"), and may not be sold except as permitted in the
following sentence. We understand and agree, on our own behalf
and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Certificates are being offered
only in a transaction not involving any public offering within
the meaning of the 1933 Act and (y) that such Certificates may be
resold, pledged or transferred only (i) to the Depositor, (ii) to
an "accredited investor" as defined in Rule 501(a)(1),(2),(3) or
(7) of Regulation D under the 1933 Act (an "Accredited Investor")
acting for its own account (and not for the account of others) or
as a fiduciary or agent for others (which others also are
Accredited Investors unless the holder is a bank acting in its
fiduciary capacity) that executes a certificate substantially in
the form hereof, (iii) so long as such Certificate is eligible
for resale pursuant to Rule 144A under the 1933 Act ("Rule
144A"), to a person whom we reasonably believe after due inquiry
is a "qualified institutional buyer" as defined in Rule 144A,
acting for its own account (and not for the account of others) or
as a fiduciary or agent for others (which others also are
"qualified institutional buyers") to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule
144A or (iv) in a sale, pledge or other transfer made in a
transaction otherwise exempt from the registration requirements
of the 1933 Act, in which case the Owner Trustee shall require
that both the prospective transferor and the prospective
transferee certify to the Owner Trustee and the Depositor in
writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Owner Trustee
and the Depositor. Except in the case of a transfer described in
clauses (i) or (iii) above, the Owner Trustee shall require that
a written opinion of counsel (which will not be at the expense of
the Depositor, any affiliate of the Depositor or the Owner
Trustee) satisfactory to the Depositor and the Owner Trustee be
delivered to the
B-8
Depositor and the Owner Trustee to the effect that such transfer will not
violate the 1933 Act, and will be effected in accordance with any applicable
securities laws of each state of the United States. We will notify any purchaser
of the Certificates from us of the above resale restrictions, if then
applicable. We further understand that in connection with any transfer of the
Certificates by us that the Depositor and the Owner Trustee may request, and if
so requested we will furnish, such certificates and other information as they
may reasonably require to confirm that any such transfer complies with the
foregoing restrictions.
2. [CHECK ONE]
(a) We are an Accredited Investor acting for our own account (and
not for the account of others) or as a fiduciary or agent for
others (which others also are Accredited Investors unless we are
a bank acting in its fiduciary capacity). We have such knowledge
and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are
each able to bear the economic risk of our or their investment
for an indefinite period of time. We are acquiring the
Certificates for investment and not with a view to, or for offer
and sale in connection with, a public distribution.
(b) We are a "qualified institutional buyer" as defined under
Rule 144A under the 1933 Act and are acquiring the Certificates
for our own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are "qualified
institutional buyers"). We are familiar with Rule 144A under the
1933 Act and are aware that the seller of the Certificates and
other parties intend to rely on the statements made herein and
the exemption from the registration requirements of the 1933 Act
provided by Rule 144A.
3. We are not (i) an employee benefit plan (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code, (iii) a governmental plan (as
defined in Section 3(32) of ERISA) subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code or (iv) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"). We hereby acknowledge that no transfer of any Certificate shall
be permitted to be made to any person unless the Trustee has received (i) a
certificate from such transferee to the effect of the preceding sentence or (ii)
an opinion of counsel satisfactory to the Trustee to
B-9
the effect that the purchase and holding of any such Certificate will not
constitute or result in the assets of the Issuer being deemed to be "plan
assets" and subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code and will not subject the Owner Trustee, the Indenture Trustee,
the Seller, the Servicer or the Depositor to any obligation in addition to those
undertaken in the Basic Documents with respect to the Certificates (provided,
however, that the Owner Trustee will not require such certificate or opinion in
the event that, as a result of change of law or otherwise, counsel satisfactory
to the Owner Trustee has rendered an opinion to the effect that the purchase and
holding of any such Certificate by a Benefit Plan or a Person that is purchasing
or holding any such Certificate with the assets of a Benefit Plan will not
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code).
4. We understand that the Depositor, the Trust and others will
rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and we agree that if any of the acknowledgments,
representations and warranties deemed to have been made by us by our purchase of
the Certificates, for our own account or for one or more accounts as to each of
which we exercise sole investment discretion, are no longer accurate, we shall
promptly notify the Depositor.
5. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By: ________________________________
Name:
Title:
Date: ______________________________
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