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 December 2, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions..........................................................1
SECTION 1.01 Capitalized Terms............................................1
ARTICLE II Organization........................................................1
SECTION 2.01 Name.........................................................1
SECTION 2.02 Office.......................................................1
SECTION 2.03 Purposes and Powers..........................................1
SECTION 2.04 Appointment of Owner Trustee.................................3
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate...........3
SECTION 2.06 Declaration of Trust.........................................3
SECTION 2.07 Liability of the Depositor and the Certificateholders........3
SECTION 2.08 Title to Trust Property......................................4
SECTION 2.09 Situs of Trust...............................................4
SECTION 2.10 Representations and Warranties of the Depositor..............4
SECTION 2.11 Financing Statements.........................................6
SECTION 2.12 Amended and Restated Trust Agreement.........................6
ARTICLE III Trust Certificates and Transfer of Interests.......................6
SECTION 3.01 [Reserved]...................................................6
SECTION 3.02 The Trust Certificates.......................................6
SECTION 3.03 Authentication of Trust Certificates.........................6
SECTION 3.04 Registration of Transfer and Exchange of Trust
Certificates.................................................7
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates......9
SECTION 3.06 Persons Deemed Owners........................................9
SECTION 3.07 Access to List of Certificateholders' Names and Addresses....9
SECTION 3.08 Maintenance of Office or Agency.............................10
SECTION 3.09 Appointment of Paying Agent.................................10
ARTICLE IV Actions by Owner Trustee...........................................10
SECTION 4.01 Prior Notice to Certificateholders with Respect to
Certain Matters.............................................10
SECTION 4.02 Action by Certificateholders with Respect to Certain
Matters.....................................................11
SECTION 4.03 Action by Certificateholders with Respect to Bankruptcy.....11
SECTION 4.04 Restrictions on Certificateholders' Power...................12
SECTION 4.05 Majority Control............................................12
ARTICLE V Application of Trust Funds; Certain Duties..........................12
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SECTION 5.01 [Reserved]..................................................12
SECTION 5.02 Application of Trust Funds..................................12
SECTION 5.03 Method of Payment...........................................13
SECTION 5.04 No Segregation of Monies; No Interest.......................13
SECTION 5.05 Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others.........................13
SECTION 5.06 Signature on Returns........................................14
ARTICLE VI Authority and Duties of Owner Trustee..............................14
SECTION 6.01 General Authority...........................................14
SECTION 6.02 General Duties..............................................14
SECTION 6.03 Action upon Instruction.....................................15
SECTION 6.04 No Duties Except as Specified in this Agreement or in
Instructions................................................16
SECTION 6.05 No Action Except Under Specified Documents or
Instructions................................................16
SECTION 6.06 Restrictions................................................16
SECTION 6.07 Issuance of Notes...........................................16
ARTICLE VII Concerning the Owner Trustee......................................16
SECTION 7.01 Acceptance of Trusts and Duties.............................17
SECTION 7.02 Furnishing of Documents.....................................19
SECTION 7.03 Representations and Warranties of the Owner Trustee.........19
SECTION 7.04 [Reserved]..................................................20
SECTION 7.05 Reliance; Advice of Counsel.................................20
SECTION 7.06 Not Acting in Individual Capacity...........................20
SECTION 7.07 Owner Trustee Not Liable for Trust Certificates or
Receivables.................................................20
SECTION 7.08 Owner Trustee May Own Trust Certificates and Notes..........21
ARTICLE VIII Compensation of Owner Trustee....................................21
SECTION 8.01 Owner Trustee's Fees and Expenses...........................21
SECTION 8.02 Indemnification.............................................21
SECTION 8.03 Payments to the Owner Trustee...............................22
ARTICLE IX Termination of Trust Agreement.....................................22
SECTION 9.01 Termination of Trust Agreement..............................22
ARTICLE X Successor Owner Trustees and Additional Owner Trustees..............23
SECTION 10.01 Eligibility Requirements for Owner Trustee..................23
SECTION 10.02 Resignation or Removal of Owner Trustee.....................23
SECTION 10.03 Successor Owner Trustee.....................................24
SECTION 10.04 Merger or Consolidation of the Owner Trustee................25
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee...............25
ARTICLE XI Miscellaneous......................................................26
SECTION 11.01 Supplements and Amendments..................................26
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SECTION 11.02 No Legal Title to Owner Trust Estate in
Certificateholders..........................................28
SECTION 11.03 Limitations on Rights of Others.............................28
SECTION 11.04 Notices.....................................................28
SECTION 11.05 Severability................................................28
SECTION 11.06 Separate Counterparts.......................................29
SECTION 11.07 Successors and Assigns......................................29
SECTION 11.08 Covenants of the Depositor..................................29
SECTION 11.09 No Petition.................................................29
SECTION 11.10 No Recourse.................................................30
SECTION 11.11 Headings....................................................30
SECTION 11.12 GOVERNING LAW...............................................30
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 December 2, 2003, 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. Certain capitalized terms used in
this Agreement shall have the respective meanings assigned to them in Part I of
Appendix A to the Sale and Servicing Agreement of even date herewith. All
references herein to "the Agreement" or "this Agreement" are to this Trust
Agreement as it may be amended and supplemented from time to time, the Exhibits
hereto and the capitalized terms used herein which are defined in such Appendix
A, and all references herein to Articles, Sections and subsections are to
Articles, Sections and subsections of this Agreement unless otherwise specified.
The rules of construction set forth in Part II of such Appendix A shall be
applicable to this Agreement.
ARTICLE II
ORGANIZATION
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SECTION 2.01 Name. The Trust created hereby shall be known as "World
Omni Auto Receivables Trust 2003-B" 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 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 and the Trust shall have the power and
authority:
(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;
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(ii) with the proceeds of the sale of the Notes, to
purchase the Receivables, to make deposits into and withdrawals from
the Reserve Account, the Pre-Funding Account and the Negative Carry
Account, 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 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.
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SECTION 2.04 Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and under the
Statutory Trust Act.
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 statutory trust
under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory 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 Statutory Trust Statute with respect to accomplishing the
purposes of the Trust. Any action taken on behalf of the Trust prior to the 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
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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 in the State
of Delaware 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 principal corporate trust
office of the Owner Trustee located at 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxx 0
XXX0, Xxxxxx, Xxxxxxxx 00000.
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 jurisdictions in which the ownership or
lease of property or the conduct of its business shall require 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
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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.
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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 Trustee pursuant to the granting clause of the
Indenture. 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 November 14, 2003 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
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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 Certificateholder 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 Owner Trustee, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
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 a Certificateholder 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
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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.
SECTION 3.04 Registration of Transfer and Exchange of Trust
Certificates. The certificate registrar (the "Certificate Registrar") shall
keep or cause to be kept, at the office or agency maintained pursuant to Section
3.08, a certificate register (the "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. The Owner Trustee 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 the
Securities Act and such state securities laws. In the event that a transfer is
to be made in reliance upon an exemption from the Securities Act and state
securities laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such 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
Certificateholder and any prospective transferee designated by any such
Certificateholder 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 Certificateholder 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
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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
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 Certificateholder,
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 Certificateholder or such Certificateholder'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.
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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.
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 Certificateholders 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 Certificateholder, by receiving and holding a Trust Certificate, shall be
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deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
SECTION 3.08 Maintenance of Office or Agency. The Owner Trustee
shall maintain 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 the Corporate Trust Office, 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
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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
10
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 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 Statutory
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of 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
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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 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 Certificateholders 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 Certificateholders 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 Xxxxxxx 0.00(x),
Xxxxxxx 0.00(xx)(X), (xxx)(X) or (iv)(E) or Section 5.07(d) of the Sale and
Servicing Agreement with respect to such Payment Date.
(b) The Certificateholders 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 Xxxxxxx 0.00(x), Xxxxxxx 0.00(xx)(X), (xxx)(X) 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
12
have no claim to such amounts (unless distributed on a subsequent Payment Date
pursuant to Section 5.06(ii)(G) 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 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 Certificateholder 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 Certificateholder 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
13
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 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
14
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 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
15
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.
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
----------------------------
16
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 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) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by the Owner Trustee or (iv)
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;
17
(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 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
Certificateholders or any other Person that has been obtained from, or provided
to the Owner Trustee.
(j) Notwithstanding anything to the contrary herein or any Basic
Document, the Owner Trustee shall not be required to execute, deliver or certify
on behalf of the Trust or any other Person, any filings, certificates,
affidavits or other instruments required under the Xxxxxxxx-Xxxxx Act of 2002.
18
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.
(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.
19
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.
(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
20
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 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
21
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) or (iv) 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.
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 or Paying Agent
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
22
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 Paying Agent 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
or Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the 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
23
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 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.
24
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 Statutory 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 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
25
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
(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
26
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 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.
27
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 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, facsimile: (000) 000-0000; 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 Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder 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
28
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 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
29
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.
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.
* * * * * *
30
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/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK acknowledges and accepts, as of the date first above
written, its appointment as Paying Agent in accordance with the terms of this
Agreement and agrees to be bound by the terms of this Agreement applicable to
the Paying Agent.
By: /s/ Xxxxxxx X. Clan
----------------------------------
Name: Xxxxxxx X. Clan
Title: Assistant Treasurer
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 FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM
A-1
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 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
A-2
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.
A-3
NO.:
WORLD OMNI AUTO RECEIVABLES TRUST 2003-B
TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property which consists of retail installment sale contracts for new and used
automobiles and light-duty trucks (transferred to the Trust on the Closing Date
(the "Initial Receivables") and those retail installment contracts transferred
to the Trust on Subsequent Transfer Dates during the Funding Period (the
"Subsequent Receivables" and, together with the Initial Receivables, the
"Receivables"), all monies received on or after the applicable 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 2003-B (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.
A-4
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION not in its individual
capacity but solely as Owner Trustee
By:
-------------------------------------
Authorized Signatory
A-5
The Trust was created pursuant to a Trust Agreement dated November 14,
2003, (as amended and restated as of December 2, 2003 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 December 2,
2003 (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 December 2, 2003 (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 Certificateholder of this Trust Certificate by
virtue of its acceptance hereof assents and by which such Certificateholder is
bound. The property of the Trust consists of retail installment sale contracts
for new and used automobiles and light-duty trucks transferred to the Trust on
the Closing Date (the "Initial Receivables") and those retail installment
contracts transferred to the Trust on Subsequent Transfer Dates during the
Funding Period (the "Subsequent Receivables" and, together with the Initial
Receivables, the "Receivables"), all monies received after the applicable 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 December 15,
2003, to the Person in whose name this Trust Certificate is registered at the
close of business on the business day 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.
A-6
The Certificateholder 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.
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 Paying Agent 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 or
Paying Agent 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.
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 Certificateholder 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-7
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 2003-B
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
Dated: By:
-------------- --------------------------------
Authorized Signatory
A-8
[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
Certificateholder of this Trust Certificate shall be conclusive and binding on
such Certificateholder and on all future Certificateholders 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
Certificateholders 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, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Certificateholder hereof or such Certificateholder'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 Chase Manhattan Bank USA, National
Association.
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
Certificateholder surrendering the same. No service charge will be made for any
such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may
A-9
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the
Owner Trustee or the Certificate Registrar may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
The 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
Aggregate Starting Principal Balance of all Receivables transferred to the
Trust.
A-10
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-11
EXHIBIT B
CERTIFICATE OF TRUST OF
WORLD OMNI AUTO RECEIVABLES TRUST 2003-B
----------------------------------------
THIS Certificate of Trust of WORLD OMNI AUTO RECEIVABLES TRUST 2003-B
(the "Trust"), is being duly executed and filed by the undersigned, as trustees,
to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is World Omni
Auto Receivables Trust 2003-B.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Chase Manhattan Bank USA, National
Association, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxx 0 XXX0, Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
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:
B-2
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 2003-B
Re: World Omni Auto Receivables Trust 2003-B
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 Chase Manhattan Bank USA, National Association, as Owner Trustee
World Omni Auto Receivables Trust 2003-B
Ladies and Gentlemen:
In connection with our proposed purchase of Trust Certificates (the
"Certificates") of World Omni Auto Receivables Trust 2003-B (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
D-1
Owner Trustee) satisfactory to the Depositor and the Owner Trustee be
delivered to the 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
D-2
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:
-----------------------------------
D-3
EXHIBIT E
RESERVED
EXHIBIT F
FORM OF RECEIVABLES
Documents on file at:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
