EXHIBIT 4.2
NORWEST AUTO TRUST 1996-A
TRUST AGREEMENT
between
NORWEST AUTO RECEIVABLES CORPORATION
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of November 13, 1996
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................... 1
SECTION 1.1. Capitalized Terms........................... 1
SECTION 1.2. Other Interpretive Provisions............... 1
ARTICLE II ORGANIZATION....................................... 1
SECTION 2.1. Name........................................ 1
SECTION 2.2. Office...................................... 2
SECTION 2.3. Purposes and Powers......................... 2
SECTION 2.4. Appointment of Owner Trustee................ 3
SECTION 2.5. Initial Capital Contribution of Trust Estate 3
SECTION 2.6. Declaration of Trust........................ 3
SECTION 2.7. Transfer of Interest to Depositor; Liability
of the Holder of the Depositor Certificate.. 3
SECTION 2.8. Title to Issuer Property.................... 4
SECTION 2.9. Situs of Issuer............................. 4
SECTION 2.10. Representations and Warranties of Depositor 4
SECTION 2.11. Federal Income Tax Allocations............. 5
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS............. 7
SECTION 3.1. Initial Ownership........................... 7
SECTION 3.2. The Certificates............................ 7
SECTION 3.3. Authentication of Certificates.............. 7
SECTION 3.4. Registration of Transfer and Exchange of
Certificates................................ 8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates................................ 8
SECTION 3.6. Persons Deemed Certificateholders........... 9
SECTION 3.7. Access to List of Certificateholders' Names
and Addresses............................... 9
SECTION 3.8. Maintenance of Office or Agency............. 9
SECTION 3.9. Appointment of Paying Agent................. 10
SECTION 3.10. Disposition by the Holder of Depositor
Certificate................................. 10
SECTION 3.11. Book-Entry Certificates.................... 11
SECTION 3.13. Definitive Certificates.................... 12
ARTICLE IV ACTIONS BY OWNER TRUSTEE........................... 12
SECTION 4.1. Prior Notice to Owners with Respect to
Certain Matters............................. 12
SECTION 4.2. Action by Certificateholders with Respect to
Certain Matters............................. 13
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy.................................. 14
SECTION 4.4. Restrictions on Certificateholders' Power... 14
SECTION 4.5. Majority Control............................ 14
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.......... 14
SECTION 5.1. Establishment of Certificate Distribution
Account..................................... 14
SECTION 5.2. Application of Funds in Certificate
Distribution Account........................ 14
SECTION 5.3. Method of Payment........................... 15
SECTION 5.4. No Segregation of Monies; No Interest....... 16
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue
Service and Others.......................... 16
SECTION 5.6. Signature on Returns; Tax Matters Partner... 16
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.............. 17
SECTION 6.1. General Authority........................... 17
SECTION 6.2. General Duties.............................. 17
SECTION 6.3. Action upon Instruction..................... 17
SECTION 6.4. No Duties Except as Specified in this
Agreement or in Instructions................ 18
SECTION 6.5. No Action Except under Specified Documents
or Instructions............................. 19
SECTION 6.6. Restrictions................................ 19
ARTICLE VII CONCERNING OWNER TRUSTEE.......................... 19
SECTION 7.1. Acceptance of Trusts and Duties............. 19
SECTION 7.2. Furnishing of Documents..................... 21
SECTION 7.3. Representations and Warranties.............. 21
SECTION 7.4. Reliance; Advice of Counsel................. 22
SECTION 7.5. Not Acting in Individual Capacity........... 22
SECTION 7.6. Owner Trustee Not Liable for Certificates
or Receivables.............................. 23
SECTION 7.7. Owner Trustee May Own Certificates
and Notes................................... 23
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.................... 23
SECTION 8.1. Owner Trustee's Fees and Expenses........... 23
SECTION 8.2. Indemnification............................. 24
SECTION 8.3. Payments to Owner Trustee................... 24
ARTICLE IX TERMINATION OF TRUST AGREEMENT..................... 25
SECTION 9.1. Termination of Trust Agreement.............. 25
SECTION 9.2. Dissolution upon Bankruptcy of Depositor.... 26
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES................................. 26
SECTION 10.1. Eligibility Requirements for Owner Trustee. 26
SECTION 10.2. Resignation or Removal of Owner Trustee.... 27
SECTION 10.3. Successor Owner Trustee.................... 28
SECTION 10.4. Merger or Consolidation of Owner Trustee... 28
SECTION 10.5. Appointment of Co-Owner Trustee or Separate
Owner Trustee.............................. 29
ARTICLE XI MISCELLANEOUS...................................... 30
SECTION 11.1. Supplements and Amendments................. 30
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders.......................... 32
SECTION 11.3. Limitations on Rights of Others............ 32
SECTION 11.4. Notices.................................... 32
SECTION 11.5. Severability............................... 32
SECTION 11.6. Separate Counterparts...................... 33
SECTION 11.7. Successors and Assigns..................... 33
SECTION 11.8. No Petition................................ 33
SECTION 11.9. No Recourse................................ 33
SECTION 11.10. Headings.................................. 33
SECTION 11.11. GOVERNING LAW............................. 33
SECTION 11.12. Certificate Transfer Restrictions......... 34
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
TRUST AGREEMENT dated as of November 13, 1996 between NORWEST AUTO
RECEIVABLES CORPORATION, a Delaware corporation, as Depositor, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee.
ARTICLE I DEFINITIONS.
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement
among the trust established by this Agreement, Norwest Auto Receivables
Corporation, as Seller, and Norwest Bank Minnesota, N.A., as Servicer,
dated as of November 13, 1996, as the same may be amended and supplemented
from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document delivered pursuant hereto unless otherwise defined therein.
For purposes of this Agreement and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
terms defined in Article 9 of the UCC as in effect in the State of Delaware
and not otherwise defined in this Agreement are used as defined in that
Article; (c) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
provision of this Agreement; (d) references to any Article, Section,
Schedule or Exhibit are references to Articles, Sections, Schedules and
Exhibits in or to this Agreement (or the certificate or other document in
which the reference is made), and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation";
(f) except as otherwise provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (g) references to any Person
include that Person's successors and assigns; and (h) headings are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II ORGANIZATION.
SECTION 2.1. Name. The trust created hereby shall be known as
"Norwest Auto Trust 1996-A", in which name Owner Trustee may conduct the
business of such trust, make and execute contracts and other instruments on
behalf of such trust and ▇▇▇ and be sued.
SECTION 2.2. Office. The office of Issuer shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address as Owner
Trustee may designate by written notice to the Certificateholders and
Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Issuer is, and
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and
principal of the Notes and distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from Depositor pursuant to the terms thereof,
to make deposits to and withdrawals from the Reserve Account and to
pay the organizational, start-up and transactional expenses of Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) 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.
Issuer is hereby authorized to engage in the foregoing activities. Issuer
shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Depositor hereby appoints
Owner Trustee as trustee of Issuer effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. Depositor
hereby sells, assigns, transfers, conveys and sets over to Owner Trustee,
as of the date hereof, the sum of $1. Owner Trustee hereby acknowledges
receipt in trust from Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and
shall be deposited in the Certificate Distribution Account.
SECTION 2.6. Declaration of Trust. 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 Issuer under the Basic
Documents. It is the intention of the parties hereto that Issuer constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income and franchise tax
purposes, Issuer shall be treated as a partnership, the partners of such
partnership being the Certificateholders (including the Depositor, as
general partner), and the Notes constituting indebtedness of the
partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, Issuer will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of Issuer as a partnership for such tax purposes.
Effective as of the date hereof, Owner Trustee shall have all rights,
powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of Issuer. Owner Trustee shall file the Certificate of Trust with
the Secretary of State of Delaware.
SECTION 2.7. Transfer of Interest to Depositor; Liability of the
Holder of the Depositor Certificate. (a) Depositor shall retain a 1%
interest in the Certificates issued by Issuer. Depositor shall pay
organizational expenses of Issuer as they may arise or shall, upon the
request of Owner Trustee, promptly reimburse Owner Trustee for any such
expenses paid by Owner Trustee. Notwithstanding Section 3803 of the
Business Trust Statute, Depositor shall also be liable directly to and will
indemnify the injured party for all losses, claims, damages, liabilities
and expenses of Issuer (including Expenses, to the extent not paid out of
the Owner Trust Estate) to the extent that Depositor would be liable if
Issuer were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner; provided
that the Depositor shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. In addition, any
third party creditors of Issuer (other than in connection with the
obligations described in the preceding sentence for which Depositor shall
not be liable) shall be deemed third party beneficiaries of this paragraph.
The obligations of the holder of the Depositor under this paragraph shall
be evidenced by the Certificates described in Section 3.10, which for
purposes of the Business Trust Statute shall be deemed to be a separate
class of Certificates from all other Certificates issued by the Trust.
(b) No Holder or Owner, other than to the extent set forth in clause
(a), shall have any personal liability for any liability or obligation of
the Trust.
SECTION 2.8. Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Issuer. Issuer will be located and administered
in the State of Delaware. All bank accounts maintained by Owner Trustee on
behalf of Issuer shall be located in the State of Delaware or the State of
New York. Payments will be received by Issuer only in Delaware or New York,
and payments will be made by Issuer only from Delaware or New York. The
only office of Issuer will be at the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Owner Trustee that:
(a) Depositor is duly organized and validly existing as a
Delaware corporation 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) Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(c) Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with Issuer and Depositor has duly
authorized such sale and assignment and deposit to Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by Depositor by
all necessary corporate action.
(d) This Agreement constitutes a legal, valid, and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not 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 certificate of incorporation or by-laws of Depositor, or any
material indenture, agreement or other instrument to which Depositor
is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best
of Depositor's knowledge, any order, rule or regulation applicable to
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Depositor or its properties.
(f) There are no proceedings or investigations pending or, to
the Depositor's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other
Basic Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor or
its obligations under, or the validity or enforceability of, this
Agreement or (iv) which might adversely affect the federal income tax
attributes, or applicable state tax franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Allocations. The Certificateholders
acknowledge that it is their intent and that they understand that it is the
intent of Depositor and Servicer that, for the purposes of federal income,
state and local income and franchise tax and any other income taxes, Issuer
will be treated as a partnership and the Certificateholders (including
Depositor) will be treated as partners in that partnership. Depositor and
the other Certificateholders by acceptance of a Certificate agree to such
treatment and agree to take no action inconsistent with such treatment.
For purposes of federal income, state and local income and franchise tax
and any other income taxes each month:
(a) amounts paid to Certificateholders pursuant to Section
5.2(a)(i) shall be treated as "guaranteed payments" within the meaning
of Section 707(c) of the Code;
(b) to the extent that the characterization as "guaranteed
payments" provided for in paragraph (a) of this Section is not
respected, gross ordinary income of Issuer for such month as
determined for federal income tax purposes shall be allocated among
the Certificateholders as of the first Record Date following the end
of such month, in proportion to the principal amount of the
Certificates on such date, in an amount equal to the sum of (i) the
Certificateholders' Monthly Interest Distributable Amount for such
month, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distributable Amount for the preceding Distribution Date over
the amount in respect of interest at the Certificate Rate that is
actually deposited in the Certificate Distribution Account on such
preceding Distribution Date, to the extent permitted by law, at the
Certificate Rate from such preceding Distribution Date through the
current Distribution Date, and (iii) the portion of the market
discount on the Receivables accrued during such month that is
allocable to the excess of the initial aggregate principal amount of
the Certificates over their initial aggregate issue price; and
(c) thereafter all remaining items of income, gain, loss or
deduction of Issuer for such month as determined for federal income
tax purposes shall be allocated to Depositor;
If the gross ordinary income of Issuer for any month is insufficient for
the allocations described in clause (b), subsequent gross ordinary income
shall first be allocated to make up such shortfall before being allocated
as provided in clause (c). Net losses of Issuer, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss, credit and deduction entering into the computation thereof) shall be
allocated to Depositor to the extent Depositor is reasonably expected as
determined by Servicer to bear the economic burden of such net losses, then
net losses shall be allocated among the Certificateholders as of the first
Record Date following the end of such month in proportion to their
ownership of principal amount of Certificates on such Record Date until the
principal balance of the Certificates is reduced to zero. Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to Depositor, the Certificateholders, or
as otherwise required by the Code.
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.
SECTION 3.1. Initial Ownership. Upon the formation of Issuer by the
contribution by Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates. The Certificates shall be issued in
denominations of $1,000 and integral multiples thereof; provided that (a)
Certificates may be issued to Depositor pursuant to Section 2.7 in such
denominations as to represent at least 1% of the initial Certificate
Balance and (b) one Certificate may be issued that includes any residual
portion of the initial Certificate Balance in a denomination other than an
integral multiple of $1,000. The Certificates shall be executed on behalf
of Issuer by manual or facsimile signature of an authorized officer of
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of Issuer, shall be validly issued
and entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates. A
transferee of a Certificate shall become a Certificateholder, and shall be
entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in
such transferee's name pursuant to Section 3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to Issuer pursuant to the Sale and
Servicing Agreement, Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of Issuer, authenticated and delivered to or upon the
written order of Depositor, signed by its chairman of the board, its
president or any vice president, its secretary, or any assistant secretary,
or its treasurer or any assistant treasurer, without further corporate
action by Depositor, in authorized denominations. No Certificate shall
entitle its Holder to any benefit under this Agreement, or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed
by Owner Trustee, by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Owner Trustee shall be the
initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates in authorized denominations of
a like class and aggregate face amount dated the date of authentication by
Owner Trustee or any authenticating agent. At the option of a Holder,
Certificates may be exchanged for other Certificates of the same class in
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to Owner Trustee and Certificate Registrar
duly executed by the Certificateholder or his attorney duly authorized in
writing, with such signature guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company. Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by Owner Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but Owner Trustee or Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Distribution Date for any payment with respect to the
Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to Certificate
Registrar, or if Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to Certificate Registrar and Owner Trustee such
security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, Owner Trustee on behalf of Issuer
shall execute and Owner Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like class, tenor and denomination. In
connection with the issuance of any new Certificate under this Section,
Owner Trustee or Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership
interest in Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by
virtue of becoming a Certificateholder or Owner in accordance with this
Agreement shall be deemed to be bound by the terms of this Agreement. Prior
to due presentation of a Certificate for registration of transfer, Owner
Trustee or Certificate Registrar may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the owner of
such Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither Owner
Trustee nor Certificate Registrar shall be bound by any notice to the
contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. Owner Trustee shall furnish or cause to be furnished to
Servicer, Depositor or Indenture Trustee, within 15 days after receipt by
Owner Trustee of a request therefor from Servicer, Depositor or Indenture
Trustee in writing, a list, in such form as Servicer, Depositor or
Indenture Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Holders of Certificates or one or more Holders of Certificates evidencing
not less than 25% of the Certificate Balance apply in writing to Owner
Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to
hold Depositor, Certificate Registrar or Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or offices or
agency or agencies where Certificates may be surrendered for registration
of transfer or exchange and where notices and demands to or upon Issuer in
respect of the Certificates and the Basic Documents may be served. Issuer
initially designates ▇▇▇▇▇▇ Trust Company of New York, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its trust office for such purposes.
Owner Trustee shall give prompt written notice to Depositor and to the
Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. Owner Trustee may
revoke such power and remove Paying Agent if Owner Trustee determines in
its sole discretion that Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. Paying Agent
shall initially be Owner Trustee. Paying Agent shall be permitted to resign
upon 30 days' written notice to Owner Trustee and Servicer. In the event
that Owner Trustee shall no longer be Paying Agent, Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by Owner Trustee to execute and deliver
to Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with 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. Paying Agent shall return all
unclaimed funds to Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to Owner
Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to
Owner Trustee also in its role as Paying Agent, for so long as Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10. Disposition by the Holder of Depositor Certificate. On
and after the Closing Date, Depositor shall retain beneficial and record
ownership of Certificates representing at least 1% of the initial
Certificate Balance. Any attempted transfer of any Certificate that would
reduce such interest of Depositor below 1% of the Certificate Balance shall
be void. Owner Trustee shall cause any Certificate issued to Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 3.11. Book-Entry Certificates. The Certificates, upon
original issuance, will be issued in the form of a typewritten Certificate
or Certificates representing Book-Entry Certificates, to be delivered to
The Depository Trust Company, the initial Clearing Agency, by or on behalf
of Issuer; provided that one Definitive Certificate may be issued to
Depositor pursuant to Sections 2.7 and 3.10. Such Book-Entry Certificate or
Certificates shall initially be registered on the Certificate Register in
the name of Cede & Co., the nominee of the initial Clearing Agency, and no
beneficial owner (other than Depositor) will receive a Definitive
Certificate representing such beneficial owner's interest in such
Certificate, except as provided in Section 3.13. Unless and until
Definitive Certificates have been issued to beneficial owners pursuant to
Section 3.13:
(a) the provisions of this Section shall be in full force and
effect;
(b) Certificate Registrar, each Paying Agent and Owner Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Agreement relating to the Book-Entry Certificates (including the
payment of principal of and interest on the Book-Entry Certificates
and the giving of instructions or directions to Owners of Book-Entry
Certificates) as the sole Holder of Book-Entry Certificates and shall
have no obligations to Owners thereof;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control;
(d) the rights of Owners of the Book-Entry Certificates shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Owners and the
Clearing Agency and/or Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing
Agency will make book-entry transfers among Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Book-Entry Certificates to such Clearing Agency
Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Certificate Balance, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Book-Entry Certificates and has delivered such instructions to
Owner Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to Owners is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Owners pursuant to
Section 3.13, Owner Trustee and each Paying Agent shall give all such
notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to Owners, except to
Depositor.
SECTION 3.13. Definitive Certificates. If (a) Servicer advises Owner
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Certificates,
and Servicer is unable to locate a qualified successor, (b) Servicer at its
option advises Owner Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence
of an Event of Default, Owners of Certificates representing beneficial
interests aggregating at least a majority of the Certificate Balance advise
the Clearing Agency and Owner Trustee in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interest of Owners of Certificates, then the Clearing Agency shall notify
all Owners and Owner Trustee of the occurrence of any such event and of the
availability of the Definitive Certificates to Owners requesting the same.
Upon surrender to Owner Trustee of the typewritten Certificate or
Certificates representing the Book Entry Certificates by the Clearing
Agency, accompanied by registration instructions, Owner Trustee shall
execute and authenticate, or cause to be authenticated, the Definitive
Certificates in accordance with the instructions of the Clearing Agency.
Neither Certificate Registrar nor Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, Owner Trustee and each Paying Agent shall
recognize the Holders of the Definitive Certificates as Certificateholders.
The Definitive Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to Owner
Trustee, as evidenced by its execution thereof.
ARTICLE IV ACTIONS BY OWNER TRUSTEE.
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters, Owner Trustee shall not take action
unless at least 30 days before the taking of such action, Owner Trustee
shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by Issuer
(except claims or lawsuits brought in connection with the collection
of the Receivables) and the compromise of any material action, claim
or lawsuit brought by or against Issuer (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, Administrative Agent Agreement or the
Administration Agreement, except to cure any ambiguity or defect or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholders;
or
(f) the appointment pursuant to the Indenture of a successor
Indenture Trustee 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.
Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent or Certificate Registrar within
five Business Days thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove Servicer under the Sale and
Servicing Agreement pursuant to Section 8.1 thereof, (b) except as
expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture, (c) remove the Administrator under the
Administration Agreement, (d) appoint a successor Administrator, or (e)
remove the Administrative Agent or appoint a successor Administrative Agent
under the Administrative Agent Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to Issuer until the Outstanding Amount of all the
Notes has been reduced to zero and without the unanimous prior approval of
all Certificateholders and the delivery to Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of Issuer or Owner Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3 nor shall Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.
SECTION 5.1. Establishment of Certificate Distribution Account. Owner
Trustee, for the benefit of the Certificateholders, shall establish and
maintain in the name of Issuer an Eligible Deposit Account (the
"Certificate Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of Owner
Trustee for the benefit of the Certificateholders.
SECTION 5.2. Application of Funds in Certificate Distribution
Account. (a)On each Distribution Date, Owner Trustee will, based on the
information contained in Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement, distribute to Certificateholders, to the extent of the funds
available, amounts deposited in the Certificate Distribution Account
pursuant to Section 5.5 of the Sale and Servicing Agreement on such
Distribution Date in the following order of priority:
(i) first, to the Certificateholders, on a pro rata basis, an
amount equal to the Certificateholders' Interest Distributable Amount;
and
(ii) second, to the Certificateholders, on a pro rata basis, an
amount equal to the Certificateholders' Principal Distributable
Amount.
(b) On each Distribution Date, Owner Trustee shall send, or cause to
be sent, to each Certificateholder the statement provided to Owner Trustee
by Servicer pursuant to Section 5.6 of the Sale and Servicing Agreement on
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by Issuer (but such authorization shall not prevent Owner
Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by Issuer and remitted to the
appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-United States Certificateholder), Owner Trustee may in its sole
discretion withhold such amounts in accordance with this clause (c). In the
event that an Owner wishes to apply for a refund of any such withholding
tax, Owner Trustee shall reasonably cooperate with such Certificateholder
in making such claim so long as such Certificateholder agrees to reimburse
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if (a) such Certificateholder shall have provided to
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's
Certificates in the aggregate evidence a denomination of not less than
$1,000,000 or (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register; provided
that, unless Definitive Certificates have been issued pursuant to Section
3.13, with respect to Certificates registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), distributions will be made by wire transfer in immediately
available funds to the account designated by such nominee. Notwithstanding
the foregoing, the final distribution in respect of any Certificate
(whether on the Final Scheduled Distribution Date or otherwise) will be
payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by Owner Trustee pursuant to
Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by Owner Trustee or any Paying Agent
hereunder need not be segregated in any manner except to the extent
required by law or the Indenture or the Sale and Servicing Agreement and
may be deposited under such general conditions as may be prescribed by law,
and neither Owner Trustee nor any Paying Agent shall not be liable for any
interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Issuer shall
(a) maintain (or cause to be maintained) the books of Issuer on a calendar
year basis on the accrual method of accounting, (b) deliver (or cause to be
delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its
Federal and state income tax returns, (c) prepare and file such tax returns
relating to Issuer (including a partnership information return, Form 1065),
and make such elections as may from time to time be required or appropriate
under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership
for Federal income tax purposes, (d) cause such tax returns to be signed in
the manner required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. Issuer shall
cooperate with the Depositor in making all elections pursuant to this
Section as directed in writing by the Depositor. Issuer shall elect under
Section 1278 of the Code to include in income currently any market discount
that accrues with respect to the Receivables. Issuer shall not make the
election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.5, Depositor shall sign on
behalf of Issuer the tax returns of Issuer, unless applicable law requires
Owner Trustee to sign such documents, in which case such documents shall be
signed by Owner Trustee at the written direction of Depositor.
(b) Depositor shall be the "tax matters partner" of Issuer pursuant
to the Code.
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.
SECTION 6.1. General Authority. Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which Issuer is
named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which Issuer is named
as a party and any amendment thereto, in each case, in such form as
Depositor shall approve as evidenced conclusively by Owner Trustee's
execution thereof, and on behalf of Issuer at the written direction of
Depositor, to direct Indenture Trustee to authenticate and deliver Class
A-1 Notes in the aggregate principal amount of $350,000,000, Class A-2
Notes in the aggregate principal amount of $340,000,000, Class A-3 Notes in
the aggregate principal amount of $220,000,000 and Class A-4 Notes in the
aggregate principal amount of $120,140,000. In addition to the foregoing,
Owner Trustee is authorized, but shall not be obligated, to take all
actions required of Issuer pursuant to the Basic Documents. Owner Trustee
is further authorized from time to time to take such action as Servicer,
Administrative Agent or Administrator recommends or directs in writing with
respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and the other Basic Documents and to
administer Issuer in the interest of Owners, subject to the Basic Documents
and in accordance with the provisions of this Agreement. Notwithstanding
the foregoing, Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Basic Documents to the extent
Administrator or the Administrative Agent has agreed in the Administration
Agreement or the Administrative Agent Agreement to perform any act or to
discharge any duty of Owner Trustee or Issuer hereunder or under any Basic
Document, and Owner Trustee shall not be liable for the default or failure
of Administrator to carry out its obligations under the Administration
Agreement or the Administrative Agent to carry out its obligations under
the Administrative Agent Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct Owner Trustee in the
management of Issuer. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Article IV.
(b) Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if Owner Trustee shall have been advised by
counsel that such action is likely to result in liability on the part of
Owner Trustee or is contrary to the terms hereof or of any Basic Document
or is otherwise contrary to law.
(c) Whenever Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Basic Document, 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 Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, Owner Trustee shall not be
liable on account of such action to any Person. If Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) If 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 Owner Trustee or is silent or is incomplete as to the
course of action that Owner Trustee is required to take with respect to a
particular set of facts, 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 Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If 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 to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. 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 Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Basic Document against Owner Trustee. Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for Issuer or to record this
Agreement or any Basic Document. Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Owner Trust Estate that
result from actions by, or claims against, Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or
Instructions. 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
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction
delivered to Owner Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of Issuer set forth in Section
2.3 or (b) that, to the actual knowledge of the Owner Trustee, would (i)
affect the treatment of the Notes as indebtedness for federal income or
state income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for federal income or state income or franchise tax
purposes or (iii) cause Issuer or any portion thereof to be taxable as an
association or publicly traded partnership taxable as a corporation for
federal income or state income or franchise tax purposes. The
Certificateholders shall not direct Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII CONCERNING OWNER TRUSTEE.
SECTION 7.1. Acceptance of Trusts and Duties. 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. Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained
in Section 7.3 expressly made by Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of Owner Trustee;
(b) Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of Depositor, Servicer, Administrator, Administrative
Agent or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) 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 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 Certificates, and
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than
as expressly provided for herein and in the Basic Documents;
(f) Owner Trustee shall not be liable for the default or
misconduct of Indenture Trustee, Servicer, Administrative Agent or
Administrator under any of the Basic Documents or otherwise and Owner
Trustee shall have no obligation or liability to perform the
obligations of Issuer under this Agreement or the Basic Documents that
are required to be performed by Indenture Trustee under the Indenture,
Servicer under the Sale and Servicing Agreement, Administrative Agent
under the Administrative Agent Agreement or Administrator under the
Administration Agreement; and
(g) Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by Owner Trustee therein or thereby.
The right of Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and Owner Trustee shall not be answerable for other than its
negligence, bad faith or willful misconduct in the performance of any
such act.
SECTION 7.2. Furnishing of Documents. 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
Owner Trustee under the Basic Documents.
SECTION 7.3. Representations and Warranties. Owner Trustee hereby
represents and warrants to Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. 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) This Agreement constitutes a legal, valid and binding
obligation of Owner Trustee, enforceable against Owner Trustee in
accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(d) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of Owner Trustee or
any judgment or order binding on it, or constitute any default under
its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) 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 believed by it to be genuine and believed
by it to be signed by the proper party or parties. 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 the determination
of which is not specifically prescribed herein, Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of
the relevant party, as to such fact or matter, and such certificate shall
constitute full protection to 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, Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, but
Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys selected with reasonable care and (ii) may consult with
counsel, accountants and other skilled persons knowledgeable in the
relevant area to be selected with reasonable care and employed by it. Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion or
advice not contrary to this Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against 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 7.6. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other
than the signature and countersignature of Owner Trustee on the
Certificates) shall be taken as the statements of Depositor and Owner
Trustee assumes no responsibility for the correctness thereof. Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or of the Certificates (other than the
signature and countersignature of Owner Trustee on the Certificates) or the
Notes, or of any Receivable or related documents. Owner Trustee shall at no
time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection
and priority of any security interest created by any Receivable in any
Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including: 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 Issuer or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or 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
Indenture Trustee, Administrator, Administrative Agent or Servicer or any
subservicer taken in the name of Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes. Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with Depositor, Indenture
Trustee, Administrator, Administrative Agent and 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 8.1. Owner Trustee's Fees and Expenses. Owner Trustee shall
receive from the Depositor as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between
Depositor and Owner Trustee, and Owner Trustee shall be entitled to be
reimbursed by Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.2. Indemnification. Depositor shall be liable as primary
obligor for, and shall indemnify Owner Trustee and its 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 costs, expenses and
disbursements (including reasonable 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 Owner Trustee or 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 Owner Trustee hereunder,
except only that Depositor shall not be liable for or required to indemnify
Owner Trustee from and against Expenses arising or resulting from any of
the matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of
Owner Trustee or the termination of this Agreement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Indemnified Party in
respect of which indemnity may be sought pursuant to this Section 7.2, such
Indemnified Party shall promptly notify Depositor in writing, and Depositor
upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party
and any others Depositor may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding.
Depositor shall not be liable for any settlement of any claim or proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, Depositor agrees to
indemnify any Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. Depositor shall not, without the
prior written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such proceeding.
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE IX TERMINATION OF TRUST AGREEMENT.
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and Issuer shall terminate and be of no further
force or effect, (i) upon the final distribution by Owner Trustee of all
moneys 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 or (ii) at the time provided in Section 9.2. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder or Owner, other than Depositor as described in Section
9.2, shall not (x) operate to terminate this Agreement or Issuer, nor (y)
entitle such Certificateholder's or Owner'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 Issuer or Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in clause (a), neither Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of Issuer, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates
to Paying Agent for payment of the final distribution and cancellation,
shall be given by Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from
Servicer given pursuant to Section 9.1(c) of the Sale and Servicing
Agreement, stating (i) the Distribution Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of Paying Agent therein specified. Owner Trustee
shall give such notice to Certificate Registrar (if other than Owner
Trustee) and Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates,
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in Issuer after exhaustion of such remedies shall be
distributed, subject to applicable escheat laws, by Owner Trustee to
Depositor.
(d) Upon the winding up of Issuer and its termination, Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate
of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 9.2. Dissolution upon Bankruptcy of Depositor.
Notwithstanding the provisions of Section 3808 of the Business Trust
Statute, in the event that an Insolvency Event shall occur with respect to
Depositor, this Agreement shall be terminated in accordance with Section
9.1, 90 days after the date of such Insolvency Event, unless, before the
end of such 90-day period, Owner Trustee shall have received written
instructions from Noteholders holding a majority of the outstanding
principal balance of each of the Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes and the Class A-4 Notes and Certificateholders holding a majority
of the Certificate Balance (other than Depositor) to the effect that each
such party disapproves of the liquidation of the Receivables and
termination of Issuer. Promptly after the occurrence of any Insolvency
Event with respect to Depositor, (i) Depositor shall give Indenture Trustee
and Owner Trustee written notice of such Insolvency Event, (ii) Owner
Trustee shall, upon the receipt of such written notice from Depositor, give
prompt written notice to the Certificateholders and Indenture Trustee of
the occurrence of such event and (iii) Indenture Trustee shall, upon
receipt of written notice of such Insolvency Event from Owner Trustee or
Depositor, give prompt written notice to the Noteholders of the occurrence
of such event; provided that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a termination of Issuer
pursuant to the first sentence of this Section 9.2. Upon a termination
pursuant to this Section, Owner Trustee shall direct Indenture Trustee
promptly to sell the assets of the Owner Trust Estate (other than any
Eligible Deposit Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of
Issuer shall be treated as collections under the Sale and Servicing
Agreement and shall be distributed in accordance with Section 9.1(b)
thereof.
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.
SECTION 10.1. Eligibility Requirements for Owner Trustee. Owner
Trustee shall at all times be a corporation (i) authorized to exercise
corporate trust powers, (ii) having a combined capital and surplus of at
least $50,000,000 and (iii) subject to supervision or examination by
Federal or state authorities. 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 Owner Trustee
shall cease to be eligible in accordance with the provisions of this
Section, Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2. In addition, at all times Owner Trustee
or a co-trustee shall be a person that satisfies the requirements of
Section 3807(a) of the Business Trust Statute (the "Delaware Trustee").
SECTION 10.2. Resignation or Removal of Owner Trustee. Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to Administrative Agent. Upon receiving such
notice of resignation, Administrative Agent shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee; provided, however, that such right to appoint or
to petition for the appointment of any such successor shall in no event
relieve the resigning Owner Trustee from any obligations otherwise imposed
on it under the Basic Documents until such successor has in fact assumed
such appointment.
If at any time Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by Administrative Agent, or if at any time Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent,
or a receiver of Owner Trustee or of its property shall be appointed, or
any public officer shall take charge or control of Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then Administrative Agent may remove Owner Trustee. If
Administrative Agent shall remove Owner Trustee under the authority of the
immediately preceding sentence, Administrative Agent 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 payment of all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of 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 10.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee and the filing of a certificate of
amendment to the Certificate of Trust if required by the Business Trust
Statute. Administrative Agent shall provide notice of such resignation or
removal of Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver
to Administrative Agent 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 Administrative Agent 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 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, Administrative Agent shall mail notice of the successor of
such Owner Trustee to all Certificateholders, Indenture Trustee, the
Noteholders and the Rating Agencies. If Administrative Agent shall fail to
mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of Administrative Agent.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any
corporation into which Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, be the successor of Owner
Trustee hereunder; provided that such corporation shall be eligible
pursuant to Section 10.1; and provided further that Owner Trustee shall
mail notice of such merger or consolidation to the Rating Agencies not less
than fifteen days prior to the effective date thereof.
SECTION 10.5. Appointment of Co-Owner Trustee or Separate Owner
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, Administrative Agent and Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by Owner Trustee to act as co-trustee,
jointly with Owner Trustee, or 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 Issuer, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations,
rights and trusts as Administrative Agent and Owner Trustee may consider
necessary or desirable. If Administrative Agent shall not have joined in
such appointment within 15 days after the receipt by it of a request so to
do, Owner Trustee alone shall have the power to make such appointment. If
Delaware Trustee shall become incapable of acting, resign or be removed,
unless Owner Trustee is qualified to act as Delaware Trustee, a successor
co-trustee shall promptly be appointed in the manner specified in this
Section 10.5 to act as Delaware Trustee. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as
a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Owner Trustee shall be conferred upon and exercised or
performed by Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without 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, 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 Issuer 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 Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) Administrative Agent and Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any notice, request or other writing given to 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 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, Owner Trustee. Each such
instrument shall be filed with Owner Trustee and a copy thereof given to
Administrative Agent.
Any separate trustee or co-trustee may at any time appoint Owner
Trustee, 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 become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by Depositor and Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders provided that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or
Certificateholder.
(ii) to enable all or a portion of Issuer to qualify as a
partnership for federal income tax purposes under applicable
regulations on the classification of entities as partnerships or
corporations under the Code adopted as final regulations, and to
the extent such regulations eliminate or modify the need
therefor, to modify or eliminate such provisions relating to the
intended availability of partnership treatment of Issuer for
federal income tax purposes; it being a condition to any such
amendment that each Rating Agency shall have notified the
Depositor, the Servicer, Indenture Trustee and the Owner Trustee
in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency;
(iii) (A) to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to be
made to cause all or a portion of Issuer to be treated as, a
"financial asset securitization investment trust" as described
in the provisions of the "Small Business Job Protection Act of
1996," or to enable all or a portion of the Issuer to qualify
and an election to be made for similar treatment under such
comparable subsequent federal income tax provisions as may
ultimately be enacted into law, and (B) in connection with any
such election, to modify or eliminate existing provisions set
forth in this Agreement relating to the intended federal income
tax treatment of the Notes or Certificates and Issuer in the
absence of the election; it being a condition to any such
amendment that each Rating Agency shall have notified the
Depositor, the Servicer, Indenture Trustee and the Owner Trustee
in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency; and
(iv) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to
Issuer of all or any portion of the Receivables to be
derecognized under GAAP by Depositor to Issuer, (b) Issuer to
avoid becoming a member of Seller's consolidated group under
GAAP or (c) the Depositor, any Seller Affiliate or any of their
Affiliates to otherwise comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or
principle; it being a condition to any such amendment that each
Rating Agency shall have notified the Depositor, the Servicer,
Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the
rating of any outstanding Notes or Certificates with respect to
which it is a Rating Agency.
(b) This Agreement may also be amended from time to time by Depositor
and Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes and, to the extent affected thereby,
the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance 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 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 Notes and the Certificate
Balance required to consent to any such amendment, without the consent of
the Holders of all the outstanding Notes and Holders of all outstanding
Certificates.
(c) Promptly after the execution of any such amendment or consent,
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, Indenture Trustee and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or 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 Owner Trustee may
prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of the Trust, Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of the Trust, 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 and that all
conditions precedent to the execution and delivery of such amendment have
been satisfied. Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 11.2. 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 11.3. Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of Owner
Trustee, Depositor, Administrative Agent, Certificateholders, Servicer and,
to the extent expressly provided herein, Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be
deemed to have been duly given upon receipt, if to Owner Trustee, addressed
to the Corporate Trust Office; if to Depositor, addressed to Norwest
Center, Sixth and Marquette, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Secretary; or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of,
Depositor, 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 11.8. No Petition. Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement,
each Certificateholder or Certificate Owner, by accepting a Certificate,
and Indenture Trustee and each Noteholder or Note Owner by accepting the
benefits of this Agreement, hereby covenants and agrees that they will not
at any time institute against Depositor or the Trust, or join in any
institution against Depositor or the Trust of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.9. No Recourse. Each Certificateholder or Certificate
Owner by accepting a Certificate acknowledges that such Certificateholder's
or Certificate Owner's Certificates represent beneficial interests in
Issuer only and do not represent interests in or obligations of Seller,
Servicer, Administrative Agent, Depositor, Owner Trustee, Indenture Trustee
or any Affiliate thereof and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Certificate Transfer Restrictions. The Certificates
may not be acquired by or for the account of or with assets of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 ("ERISA")) that is subject to the
provisions of Title 1 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"). By accepting and holding a Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and
is not purchasing Certificates on behalf of a Benefit Plan.
SECTION 11.13. Servicer. Servicer is authorized to execute on behalf
of Issuer all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of Issuer to prepare, file or deliver
pursuant to the Basic Documents. Upon written request, Owner Trustee shall
execute and deliver to Servicer a power of attorney appointing Servicer as
Issuer's agent and attorney-in-fact to execute all such documents, reports,
filings, instruments, certificates and opinions.
SECTION 11.14. Maintenance of Net Worth. For so long as any Notes or
Certificates shall remain outstanding, Depositor shall maintain its net
worth (exclusive of its interest in Issuer) at least equal to $5,320,000.
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.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORWEST AUTO RECEIVABLES
CORPORATION, as Depositor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Acknowledged and Accepted
with respect to Section 9.2
of this Trust Agreement:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Second Vice President
EXHIBIT A
NUMBER $
R- CUSIP NO. 669377 AF 0
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS
SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.]
[THIS CERTIFICATE IS NOT TRANSFERABLE]
NORWEST AUTO TRUST 1996-A
6.300% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of
Issuer, as defined below, the property of which includes a pool of Motor
Vehicle Loans sold to Issuer by Norwest Auto Receivables Corporation.
(This Certificate does not represent an interest in or obligation of
Norwest Auto Receivables Corporation or any of its Affiliates, except to
the extent described below.)
To be inserted on the Certificate to be held by Depositor.
THIS CERTIFIES THAT ____________________________ is the registered owner of
__________________________ DOLLARS nonassessable, fully-paid, beneficial
ownership interest in certain distributions of Norwest Auto Trust 1996-A
(the "Issuer") formed by Norwest Auto Receivables Corporation, a Delaware
corporation ("Seller"). This Certificate has a Certificate Rate of 6.300%
per annum.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
_______________________ _________________________
or
as Owner Trustee as Owner Trustee
By____________________________
Authenticating Agent
By_____________________
Issuer was created pursuant to a Trust Agreement dated as of November
13, 1996 (the "Trust Agreement"), between Seller and Wilmington Trust
Company, as owner trustee ("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 Appendix X to the Sale and Servicing Agreement
among Issuer, Norwest Auto Receivables Corporation, as Seller, The Chase
Manhatten Bank, as Indenture Trustee, Wilmington Trust Company, as Owner
Trustee, and Norwest Bank Minnesota, N.A., as Servicer, dated as of
November 13, 1996, as the same may be amended or supplemented from time to
time.
This Certificate is one of the duly authorized Certificates designated
as "6.300% Asset Backed Certificates" (herein called the "Certificates").
Also issued under the Indenture dated as of November 13, 1996, between
Issuer and The Chase Manhattan Bank, as indenture trustee, are four classes
of Notes designated as "Class A-1 5.465% Asset Backed Notes" (the "Class
A-1 Notes"), "Class A-2 5.800% Asset Backed Notes" (the "Class A-2 Notes"),
"Class A-3 5.900% Asset Backed Notes" (the "Class A-3 Notes") and "Class
A-4 6.10% Asset Backed Notes" (the "Class A-4 Notes" and, together with the
Class A-1 Notes, Class A-2 Notes, and Class A-3 Notes, the "Notes"). The
Holder of this Certificate shall be entitled to receive distributions on
each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is the initial
Certificate Balance of this Certificate and the denominator of which is
$34,606,052.70 (the "Fraction") by (ii) the aggregate amount, if any,
payable from the Certificate Distribution Amount pursuant to Section 5.2 of
the Trust Agreement. Issuer will distribute interest on this Certificate
on each Distribution Date until the initial Certificate Balance of the
Certificate is paid or made available for payment in an amount equal to the
product of the Certificateholders' Interest Distributable Amount for the
related Transfer Date multiplied by the Fraction, subject to the
limitations contained in Section 5.2 of the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which
such holder is bound.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to
the rights of the Noteholders as described in the Sale and Servicing
Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of Seller, Servicer, Depositor and Certificateholders
that, for purposes of Federal income taxes, Issuer will be treated as a
partnership and the Certificateholders (including Depositor) will be
treated as partners in that partnership. Depositor and the other
Certificateholders by acceptance of a Certificate, agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for
such tax purposes as partnership interests in the Trust.
Each Certificateholder and Certificate Owner, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder and
Certificate Owner will not at any time institute against Depositor, or join
in any institution against 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 Certificates, the Notes,
the Trust Agreement or any of the Basic Documents.
The Certificates do not represent an obligation of, or an interest in,
Seller, Servicer, Administrator, Administrative Agent Depositor, Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Basic
Documents.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title 1 of ERISA, (b) a plan
described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing on behalf of
a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, Owner Trustee, on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY
not in its individual capacity,
but solely as Owner Trustee
Dated: November 13, 1996 By:___________________________________
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee)
______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
____________________________________________________________ Attorney to
transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
________________________*
Signature Guaranteed:
_________________________*
____________________________
* NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by a member
firm of the New York Stock Exchange or a commercial bank or trust
company.
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
NORWEST AUTO TRUST 1996-A
THIS Certificate of Trust of Norwest Auto Trust 1996-A (the "Trust"),
dated as of November __, 1996, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is NORWEST
AUTO TRUST 1996-A.
2. Delaware Trustee. The name and business address of the trustee
of the Trust resident in the State of Delaware is Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
3. This Certificate of Trust will be effective November 13, 1996.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as owner trustee of the Trust.
By:____________________________
Name:
Title: