EXHIBIT 4.2
EXECUTION COPY
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POOLED AUTO SECURITIES SHELF LLC,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
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SECOND AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of June 1, 2006
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions.................................................................................1
Section 1.02. Other Definitional Provisions.......................................................................6
Section 1.03. Interpretive Provisions.............................................................................6
ARTICLE TWO
ORGANIZATION
Section 2.01. Name................................................................................................7
Section 2.02. Office..............................................................................................7
Section 2.03. Purposes and Powers.................................................................................7
Section 2.04. Appointment of Owner Trustee........................................................................8
Section 2.05. Initial Capital Contribution of Owner Trust Estate..................................................8
Section 2.06. Declaration of Trust................................................................................8
Section 2.07. Liability of Certificateholders.....................................................................9
Section 2.08. Title to Trust Property.............................................................................9
Section 2.09. Situs of Issuer.....................................................................................9
Section 2.10. Representations and Warranties of the Depositor.....................................................9
Section 2.11. Federal Income Tax Matters.........................................................................10
Section 2.12. Texas State Tax Matters............................................................................11
ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership..................................................................................12
Section 3.02. The Certificates...................................................................................12
Section 3.03. Authentication and Delivery of Certificates........................................................12
Section 3.04. Registration, Transfer and Exchange of Certificates................................................12
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates..................................................14
Section 3.06. Persons Deemed Certificateholders..................................................................14
Section 3.07. Access to List of Certificateholders' Names and Addresses..........................................15
Section 3.08. Maintenance of Office or Agency....................................................................15
Section 3.09. Appointment of Paying Agent........................................................................15
Section 3.10. Certificates Nonassessable and Fully Paid..........................................................16
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to Certain Matters.................................17
Section 4.02. Action by Certificateholders with Respect to Certain Matters.......................................17
Section 4.03. Action by Certificateholders with Respect to Bankruptcy............................................18
Section 4.04. Restrictions on Certificateholders' Power..........................................................18
Section 4.05. Majority Control...................................................................................18
Section 4.06. Certain Litigation Matters.........................................................................18
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account.......................................................19
Section 5.02. Application of Trust Funds.........................................................................19
Section 5.03. Method of Payment..................................................................................20
Section 5.04. No Segregation of Monies; No Interest..............................................................20
Section 5.05. Accounting and Reports to Noteholders, Certificateholders, the IRS and Others......................20
Section 5.06. Signature on Returns; Tax Matters Partner..........................................................21
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority..................................................................................22
Section 6.02. General Duties.....................................................................................22
Section 6.03. Action Upon Instruction............................................................................23
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions.................................23
Section 6.05. No Action Except Under Specified Documents or Instructions.........................................24
Section 6.06. Restrictions.......................................................................................24
ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties...............................................................................25
Section 7.02. Furnishing of Documents............................................................................26
Section 7.03. Representations and Warranties.....................................................................27
Section 7.04. Reliance; Advice of Counsel........................................................................27
Section 7.05. Not Acting in Individual Capacity..................................................................28
Section 7.06. Owner Trustee Not Liable for Certificates or Receivables...........................................28
Section 7.07. Owner Trustee May Own Certificates and Notes.......................................................28
Section 7.08. Paying Agent; Authenticating Agent.................................................................29
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses..................................................................30
Section 8.02. Indemnification....................................................................................30
Section 8.03. Payments to the Owner Trustee......................................................................30
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.....................................................................31
ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee........................................................33
Section 10.02. Resignation or Removal of Owner Trustee...........................................................33
Section 10.03. Successor Owner Trustee...........................................................................34
Section 10.04. Merger or Consolidation of Owner Trustee..........................................................34
Section 10.05. Appointment of Co-Trustee or Separate Trustee.....................................................35
ARTICLE ELEVEN
Section 11.01. Intent of the Parties; Reasonableness.............................................................37
Section 11.02. Representations and Warranties....................................................................37
Section 11.03. Information to Be Provided by the Owner Trustee...................................................37
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Supplements and Amendments........................................................................39
Section 12.02. No Legal Title to Owner Trust Estate in Certificateholders........................................40
Section 12.03. Limitations on Rights of Others...................................................................41
Section 12.04. Notices...........................................................................................41
Section 12.05. Severability......................................................................................41
Section 12.06. Counterparts......................................................................................41
Section 12.07. Successors and Assigns............................................................................41
Section 12.08. Covenants of the Depositor........................................................................42
Section 12.09. No Petition.......................................................................................42
Section 12.10. No Recourse.......................................................................................42
Section 12.11. Headings..........................................................................................42
Section 12.12. GOVERNING LAW.....................................................................................42
Section 12.13. Servicer Payment Obligation.......................................................................42
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EXHIBITS
Exhibit A - Form of Certificate.................................................................................A-1
Exhibit B - Form of Certificate of Trust........................................................................B-1
SECOND AMENDED AND RESTATED TRUST AGREEMENT
This Second Amended and Restated Trust Agreement, dated as of June 1,
2006, is between Pooled Auto Securities Shelf LLC, a Delaware limited
liability company, as depositor (the "Depositor"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (the "Owner Trustee").
WHEREAS, Wachovia Auto Owner Trust 2006-A has been created pursuant
to a trust agreement, dated as of August 17, 2005, between the Depositor and
the Owner Trustee, as amended by the amended and restated trust agreement,
dated as of September 20, 2005 (the "Initial Trust Agreement"), and the filing
of a certificate of trust with the Secretary of State of the State of Delaware
on August 17, 2005, and as amended and restated as of September 20, 2005; and
WHEREAS, the Depositor and the Owner Trustee wish to amend and
restate the Initial Trust Agreement on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and of other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. General Definitions. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Accountants" means a firm of independent public accountants.
"Administration Agreement" means the administration agreement, dated
as of June 1, 2006, among the Administrator, the Issuer, the Depositor and the
Indenture Trustee.
"Administrator" means Wachovia Bank, in its capacity as administrator
under the Administration Agreement, and its successors in such capacity.
"Affiliate" has the meaning specified in the Sale and Servicing
Agreement.
"Agreement" means this Amended and Restated Trust Agreement.
"Applicants" has the meaning specified in Section 3.07.
"Basic Documents" has the meaning specified in the Sale and Servicing
Agreement.
"Benefit Plan" means (i) an employee benefit plan (as such term is
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"Business Day" has the meaning specified in the Sale and Servicing
Agreement.
"Certificate" means a certificate evidencing the beneficial interest
of a Certificateholder in the Owner Trust Estate, substantially in the form of
Exhibit A.
"Certificate of Trust" means the Certificate of Trust substantially
in the form of Exhibit B filed for the Issuer pursuant to Section 3810(a) of
the Statutory Trust Statute.
"Certificate Payment Account" has the meaning specified in Section
5.01.
"Certificate Percentage Interest" has the meaning specified in the
Sale and Servicing Agreement.
"Certificate Register" and "Certificate Registrar" shall have the
respective meanings specified in Section 3.04(a).
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered on the Certificate Register.
"Class" has the meaning specified in the Indenture.
"Closing Date" has the meaning specified in the Indenture.
"Code" has the meaning specified in the Indenture.
"Collection Period" has the meaning specified in the Indenture.
"Commission" has the meaning specified in the Sale and Servicing
Agreement.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration, or at such other address as the Owner Trustee may
designate from time to time by notice to the Certificateholders, the Indenture
Trustee, the Master Servicer and the Depositor, or the principal corporate
trust office of any successor Owner Trustee at the address designated by such
successor Owner Trustee by notice to the Certificateholders, the Indenture
Trustee, the Master Servicer and the Depositor.
"Cutoff Date Pool Balance" has the meaning specified in the Sale and
Servicing Agreement.
"Depositor" means PASS, in its capacity as depositor hereunder, and
its successors in such capacity.
"Distribution Date" has the meaning specified in the Indenture.
"Eligible Institution" has the meaning specified in the Sale and
Servicing Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974.
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"Excess Collections" has the meaning specified in the Indenture.
"Exchange Act" has the meaning specified in the Indenture.
"Exchange Act Reports" has the meaning specified in the Sale and
Servicing Agreement.
"Expenses" means any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever.
"Final Scheduled Distribution Date" has the meaning specified in the
Indenture.
"Financed Vehicle" has the meaning specified in the Sale and
Servicing Agreement.
"Fitch" has the meaning specified in the Indenture.
"HB3" shall mean Texas House ▇▇▇▇ 3 (enrolled May 19, 2006) and the
corresponding sections of the Texas Tax Code, Title 2 and the rules and
regulations promulgated thereunder.
"Indemnified Parties" means the Owner Trustee and its successors,
assigns, directors, officers and agents.
"Indenture" means the indenture, dated as of June 1, 2006, between
the Issuer and the Indenture Trustee.
"Indenture Trustee" has the meaning specified in the Indenture.
"Initial Receivables" has the meaning set forth in the Sale and
Servicing Agreement.
"IRS" means the United States Internal Revenue Service.
"Issuer" has the meaning specified in the Indenture.
"Item 1119 Party" has the meaning specified in the Sale and Servicing
Agreement.
"Lien" has the meaning specified in the Sale and Servicing Agreement.
"Maryland Vehicle Sales Finance Act" has the meaning specified in the
Indenture.
"Master Servicer" has the meaning specified in the Sale and Servicing
Agreement.
"Negative Carry Account" has the meaning set forth in the Sale and
Servicing Agreement.
"Note Balance" has the meaning specified in the Indenture.
"Note Registrar" has the meaning specified in the Indenture.
"Noteholder" has the meaning specified in the Indenture.
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"Notes" has the meaning specified in the Indenture.
"Opinion of Counsel" means one or more written opinions of counsel,
who may be an employee of or counsel to the Depositor or the Master Servicer,
which counsel shall be acceptable to the Indenture Trustee or the Owner
Trustee, as the case may be.
"Optional Purchase" means the exercise by the Master Servicer of its
option to purchase all remaining Receivables from the Issuer on any
Distribution Date following the last day of a Collection Period as of which
the Pool Balance is 10% or less of the Cutoff Date Pool Balance.
"Outstanding" has the meaning specified in the Indenture.
"Owner Trust Estate" means the $1,000 initial capital contribution
from the Depositor and all right, title and interest of the Issuer in, to and
under the property and rights assigned to the Issuer pursuant to Article Two
of the Sale and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under this Agreement, and any successor
in such capacity.
"PASS" means Pooled Auto Securities Shelf LLC.
"Paying Agent" means the Indenture Trustee, in its capacity as Paying
Agent under this Agreement, and any successor paying agent or co-paying agent
appointed pursuant to Section 3.09 who is authorized by the Owner Trustee on
behalf of the Issuer to make distributions from the Certificate Payment
Account on behalf of the Issuer.
"Pennsylvania Motor Vehicle Sales Finance Act" has the meaning
specified in the Indenture.
"Person" has the meaning specified in the Sale and Servicing
Agreement.
"Plan Asset Regulation" means 29 C.F.R. Section 2510.3-101 issued by
the United States Department of Labor concerning the definition of what
constitutes the assets of a Benefit Plan with respect to such Benefit Plan's
investment in an entity for purposes of the fiduciary responsibility
provisions of Title I of ERISA and Section 4975 of the Code.
"Pool Balance" has the meaning specified in the Sale and Servicing
Agreement.
"Pre-Funding Account" has the meaning specified in the Sale and
Servicing Agreement.
"Pre-Funding Period" has the meaning specified in the Sale and
Servicing Agreement.
"Protected Purchaser" has the meaning specified in Section 8-303 of
the UCC.
"PTCE 95-60" means Prohibited Transaction Class Exemption 95-60.
"Rating Agency" has the meaning specified in the Indenture.
"Rating Agency Condition" has the meaning specified in the Indenture.
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"Receivable" has the meaning specified in the Receivables Purchase
Agreement.
"Receivables Purchase Agreement" means the receivables purchase
agreement, dated as of June 1, 2006, between the Seller and PASS.
"Record Date" means, with respect to the Certificates and any
Distribution Date, the close of business on the Business Day immediately
preceding such Distribution Date.
"Regulation AB" has the meaning specified in the Sale and Servicing
Agreement.
"Required Rating" has the meaning specified in the Sale and Servicing
Agreement.
"Reserve Fund" has the meaning specified in the Sale and Servicing
Agreement.
"Responsible Officer" has the meaning specified in the Sale and
Servicing Agreement.
"Sale and Servicing Agreement" means the sale and servicing
agreement, dated as of June 1, 2006, among the Issuer, the Depositor, the
Seller and the Master Servicer.
"Securities Act" has the meaning specified in the Sale and Servicing
Agreement.
"Securitization Transaction" means any transaction involving a sale
or other transfer of receivables directly or indirectly to an issuing entity
in connection with an issuance of publicly offered or privately placed, rated
or unrated asset-backed securities.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Seller" has the meaning specified in the Receivables Purchase
Agreement.
"Servicer Termination Event" has the meaning specified in the Sale
and Servicing Agreement.
"Standard & Poor's" has the meaning specified in the Indenture.
"State" has the meaning specified in the Indenture.
"Statutory Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq.
"Subsequent Cutoff Date" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Receivables" has the meaning specified in the Sale and
Servicing Agreement.
"Subsequent Transfer Date" has the meaning specified in the Sale and
Servicing Agreement.
"Successor Servicer" has the meaning specified in the Sale and
Servicing Agreement.
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"Transfer" means a sale, exchange, transfer, assignment,
participation, pledge or other disposition of a Certificate.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary Treasury Regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"UCC" has the meaning specified in the Indenture.
"United States" has the meaning specified in the Indenture.
"Vice President" has the meaning specified in the Sale and Servicing
Agreement.
"Wachovia Bank" means Wachovia Bank, National Association.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement or the
Indenture, as the case may be.
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
Section 1.03. Interpretive Provisions. With respect to all terms in
this Agreement, unless the context otherwise requires: (i) a term has the
meaning assigned to it; (ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time in the United States; (iii) "or" is
not exclusive; (iv) "including" means including without limitation; (v) words
in the singular include the plural and words in the plural include the
singular; (vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
restated, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; (vii) references to a Person are also to its successors
and permitted assigns; (viii) the words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
(ix) Section, subsection, Schedule and Exhibit references in this Agreement
are references to Sections, subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified; (x) references to "writing" include
printing, typing, lithography and other means of reproducing words in a
visible form; and (xi) the term "proceeds" has the meaning set forth in the
applicable UCC.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The statutory trust created by the Initial Trust
Agreement and the filing of the Certificate of Trust and continued hereby
shall be known as "Wachovia Auto Owner Trust 2006-A", in which name the Owner
Trustee may conduct the business of the Issuer, make and execute contracts and
other instruments on behalf of the Issuer and ▇▇▇ and be sued on behalf of the
Issuer, to the extent herein provided.
Section 2.02. Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
Section 2.03. Purposes and Powers.
(a) The purpose of the Issuer is, and the Issuer shall have the power
and authority to engage in, the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to convey and deliver the
Notes and the Certificates upon the written order of the Depositor;
(ii) to (A) permit the Depositor to use, or to use, the proceeds of
the sale of the Notes and the Certificates, at the direction of the
Depositor, to (1) fund (W) the Reserve Fund with an amount equal to
the Reserve Fund Initial Deposit, (X) the Pre-Funding Account with an
amount equal to the Pre-Funding Account Initial Deposit and (Y) the
Negative Carry Account with the Maximum Negative Carry Amount, (2)
purchase the Initial Receivables to be acquired on the Closing Date,
(3) purchase the Subsequent Receivables to be acquired on one or more
Subsequent Transfer Dates during the Pre-Funding Period and in
connection with each such Subsequent Transfer Date to fund the
Reserve Fund with the applicable Reserve Fund Subsequent Deposit, (4)
pay the organizational, start-up and transactional expenses of the
Issuer and (B) to pay the balance to the Depositor (or to permit the
Depositor to retain the balance, as applicable) pursuant to the Sale
and Servicing Agreement;
(iii) to pay interest on and principal of the Notes to the
Noteholders and to cause any Excess Collections to be paid to the
Certificateholders or otherwise in accordance with the Indenture;
(iv) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate (other than the Certificate Payment Account and
the proceeds thereof) to the Indenture Trustee pursuant to the
Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
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(vi) 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
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of
distributions to the Noteholders and the Certificateholders.
(b) The Issuer is hereby authorized to engage in the foregoing
activities. The Issuer shall not engage in any activities other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement and the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Depositor hereby
confirms the appointment of the Owner Trustee as trustee of the Issuer
effective as of the date of creation of the Issuer, to have all the rights,
powers and duties set forth herein and in the Statutory Trust Statute, and the
Owner Trustee hereby confirms its acceptance of such appointment.
The Owner Trustee may engage, in the name of the Issuer or in its own
name on behalf of the Issuer, in the activities of the Issuer, make and
execute contracts on behalf of the Issuer and ▇▇▇ on behalf of the Issuer.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. As
of August 17, 2005, the Depositor assigned, transferred, conveyed and set over
to the Owner Trustee the sum of $1,000. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of such date, of the foregoing
contribution, which amounts constituted the initial Owner Trust Estate and
were deposited in the Certificate Payment Account. The Depositor shall pay the
organizational expenses of the Issuer as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Issuer under the Basic Documents. It is the
intention of the parties hereto that (i) the Issuer constitute a statutory
trust under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) solely for income and
franchise tax purposes, the Issuer shall be treated as either an entity that
is disregarded as separate from the beneficial owner of the equity if there is
only one such owner, or as a partnership (other than an association or
publicly traded partnership) if there are two or more such owners, with the
assets of the partnership being the Receivables and other assets held by the
Issuer, the partners of the partnership being the Certificateholders and any
holders of the Notes that are required by the IRS to be treated as equity in
the Issuer, and the remaining Notes constituting indebtedness of the
partnership. The parties agree that, unless otherwise required by appropriate
tax authorities, the Issuer will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the foregoing
characterization of the Issuer for such tax purposes. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth
herein and in the Statutory Trust Statute to accomplish the purposes of the
Issuer as set forth in Section 2.03(a). The Owner Trustee has filed the
Certificate of Trust with the Secretary of State.
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Section 2.07. Liability of Certificateholders. The Certificateholders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations organized under the general corporation
law of the State of Delaware.
Section 2.08. Title to Trust Property. Legal title to the entirety of
the Owner Trust Estate shall be vested at all times in the 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 the Owner
Trustee, a co-trustee or a separate trustee, as the case may be.
Section 2.09. Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Issuer shall be located in the States of
Delaware, North Carolina or New York. The Issuer shall not have any employees
in any State other than the State of Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments will be received by the
Issuer only in, and payments will be made by the Issuer only from, the States
of Delaware, North Carolina or New York. The only office of the Issuer will be
at the Corporate Trust Office.
Section 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, with power, authority and legal right to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at
all relevant times, and has the power, authority and legal right to
acquire, own and sell the Receivables.
(b) The Depositor is duly qualified to do business as a foreign
limited liability company in good standing and has obtained all
necessary licenses and approvals in each jurisdiction in which the
failure to so qualify or to obtain such licenses and approvals would
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, this
Agreement, any of the other Basic Documents to which it is a party,
the Receivables, the Notes or the Certificates.
(c) The Depositor has the power and authority to execute, deliver
and perform its obligations under this Agreement and each other Basic
Document to which it is a party; the Depositor has full power and
authority to sell, assign, transfer and convey the property to be
sold and assigned to and deposited with the Owner Trustee as part of
the Owner Trust Estate and the Depositor has duly authorized such
sale and assignment and deposit to the Issuer by all necessary
limited liability company action; and the execution, delivery and
performance of this Agreement and the other Basic Documents to which
it is a party have been duly authorized by the Depositor by all
necessary limited liability company action.
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(d) This Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable in accordance with its
terms, except as such enforceability may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation,
fraudulent conveyance or other similar laws affecting the enforcement
of creditors' rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(e) The execution, delivery and performance by the Depositor of
this Agreement and each other Basic Document to which the Depositor
is a party, the consummation of the transactions contemplated hereby
and thereby and the fulfillment of the terms hereof and thereof do
not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time or both) a default under, the certificate of formation or
limited liability company agreement of the Depositor, or conflict
with or violate any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default under,
any indenture, agreement or other instrument to which the Depositor
is a party or by which it is bound or to which any of its properties
are subject; 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 the
Depositor's knowledge, any order of any court, rule or regulation
applicable to the Depositor or its properties or of any federal or
State regulatory body, court, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor
or its properties; which breach, default, conflict, Lien or violation
would have a material adverse effect on the earnings, business
affairs or business prospects of the Depositor.
(f) There are no proceedings or investigations pending or, to the
Depositor's knowledge, threatened against the Depositor 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, any other
Basic Document, 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 or any of the other Basic Documents, (iii) seeking any
determination or ruling that would materially and adversely affect
the performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement, any of the other Basic
Documents, the Receivables, the Notes or the Certificates or (iv)
that would adversely affect the federal tax attributes of the Issuer
or of the Notes or the Certificates.
(g) The representations and warranties of the Depositor in Section
3.01 of the Receivables Purchase Agreement are true and correct.
Section 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent
of the Depositor and the Master Servicer that, for purposes of federal income,
State and local income and franchise tax and any other income taxes, the
Issuer shall be treated as either an entity that is disregarded as separate
from the beneficial owner of the equity in the Issuer if there is only one
such owner, or as a partnership (other than an association or publicly traded
partnership) if there are two or more such owners,
10
and income, gain or loss of the Issuer for such month as determined for
federal, State and local income and franchise tax purposes shall be allocated
among the Certificateholders as of the Record Date occurring within such
month, in proportion to their ownership of the Certificate Percentage Interest
on such date. The Depositor hereby agrees and each Certificateholder by
acceptance of a Certificate agrees to such treatment and each agrees to take
no action inconsistent with the foregoing characterization.
The Depositor is authorized to modify the allocations in this Section
if necessary or appropriate, in its sole discretion, for the allocations to
reflect fairly the economic income, gain or loss to the Certificateholders or
as otherwise required by the Code.
Section 2.12. Texas State Tax Matters. If it is determined that,
contrary to the intent of the parties hereto and the position of the
Certificateholder, the Issuer has "gross receipts" for purposes of HB3, it is
the intention of the parties hereto that the Issuer be treated as a "passive
entity" for purposes of HB3, formed to hold assets to facilitate
securitization transactions in a manner similar to grantor trusts and real
estate mortgage investment conduits as defined by Section 860D of the Code.
The Depositor, and each Certificateholder, by acceptance of a Certificate,
agree that if it is determined that, contrary to the intent of the parties
hereto and the position of the Certificateholder, the Issuer has "gross
receipts" for purposes of HB3, they will, unless otherwise required by law,
treat the Issuer as a "passive entity" for purposes of HB3 and will not,
unless otherwise required by law, take any action to include the Issuer as
part of an affiliated group engaged in a unitary business (as such terms are
used in HB3). Notwithstanding anything to the contrary contained herein,
nothing in this Agreement should be read to imply that the Issuer is doing
business in Texas or has sufficient nexus with Texas in order for HB3 to apply
to the Issuer.
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ARTICLE THREE
CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Issuer by
the contribution by the Depositor as described in Section 2.05 and until the
issuance of the Certificates, the Depositor shall be the sole beneficiary of
the Issuer.
Section 3.02. The Certificates. The Certificates shall be issued in
one or more registered, definitive, physical certificates substantially in the
form of Exhibit A. The Certificates may be in printed or typewritten form and
shall be executed on behalf of the Issuer by manual or facsimile signature of
an authorized officer of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer, shall be
validly issued and entitled to the benefits 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.
If Transfer of the Certificates is permitted pursuant to this Section
and Section 3.04, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.04.
Section 3.03. Authentication and Delivery of Certificates.
Concurrently with the sale of the Receivables to the Issuer pursuant to the
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates
to be executed on behalf of the Issuer, authenticated and delivered to or upon
the written order of the Depositor, signed by its president, any Vice
President, its treasurer, any assistant treasurer, its secretary or any
assistant secretary, without further limited liability company action by the
Depositor. No Certificate shall entitle the respective Certificateholder 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 the Owner Trustee or its
authenticating agent, by manual signature; and 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. Upon issuance, authentication and delivery
pursuant to the terms hereof, the Certificates will be entitled to the
benefits of this Agreement.
Section 3.04. Registration, Transfer and Exchange of Certificates.
(a) The Owner Trustee initially shall be the registrar (the
"Certificate Registrar") for the purpose of registering Certificates and
Transfers of Certificates as herein provided. The Certificate Registrar shall
keep or cause to be kept, at the office or agency maintained pursuant to
Section 3.08, a register (the "Certificate Register") in which, subject to
such reasonable regulations as it may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and the registration of
Transfers of Certificates. Upon any resignation of any Certificate Registrar,
the Owner Trustee shall, upon receipt of written instructions from the
Depositor, promptly appoint a successor thereto.
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(b) The Certificates may not be acquired by or for the account of a
Benefit Plan. Each Certificateholder, by its acceptance of a Certificate,
shall be deemed to have represented and warranted that such Certificateholder
is not (i) a Benefit Plan and is not a Person acting on behalf of a Benefit
Plan or a Person using the assets of a Benefit Plan to effect the transfer of
such Certificate or (ii) an insurance company purchasing a Certificate with
funds contained in an "insurance company general account" (as defined in
Section V(e) of PTCE 95-60) that includes the assets of a Benefit Plan for
purposes of the Plan Asset Regulation.
Any Person who is not an Affiliate of the Seller and acquires more
than 49.9% of the Certificates will be deemed to represent that it is not a
party in interest (within the meaning of ERISA) or a disqualified person
(within the meaning of Section 4975(e)(2) of the Code) with respect to any
Benefit Plan, other than a Benefit Plan that it sponsors for the benefit of
its employees, and that no Benefit Plan with respect to which it is a party in
interest has or will acquire any interest in the Notes.
To the extent permitted under applicable law (including ERISA),
neither the Owner Trustee nor the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of any Certificate
that is in fact not permitted under applicable law (including ERISA) or for
taking any other action with respect to such Certificate under the provisions
of this Agreement so long as such Transfer was registered by the Owner Trustee
or the Certificate Registrar in accordance with this Agreement.
(c) Upon surrender by a Certificateholder for registration of
Transfer of any Certificate at the office or agency of the Certificate
Registrar to be maintained as provided in Section 3.08, and upon compliance
with any provisions of this Agreement relating to such Transfer, the Owner
Trustee shall execute on behalf of the Issuer and the Owner Trustee shall
authenticate and deliver to the Certificateholder making such surrender, in
the name of the designated transferee or transferees, one or more new
Certificates in any authorized denomination evidencing the same aggregate
interest in the Issuer. Each Certificate presented or surrendered for
registration of Transfer shall be accompanied by a written instrument of
transfer and accompanied by IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-9, as applicable, in
form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney duly authorized in writing.
Each Certificate presented or surrendered for registration of Transfer shall
be canceled and subsequently disposed of by the Certificate Registrar in
accordance with its customary practice. No service charge shall be made for
any registration of Transfer of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any Transfer of
Certificates.
(d) All Certificates surrendered for registration of Transfer, if
surrendered to the Issuer or any agent of the Owner Trustee or the Issuer
under this Agreement, shall be delivered to the Owner Trustee and promptly
cancelled by it, or, if surrendered to the Owner Trustee, shall be promptly
cancelled by it, and no Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement. The Owner
Trustee shall dispose of cancelled Certificates in accordance with its normal
practice.
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Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (ii)
there is delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice that such Certificate has been
acquired by a Protected Purchaser, the Owner Trustee on behalf of the Issuer
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of a like tenor and
Certificate Percentage Interest. If, after the delivery of such replacement
Certificate or payment of a destroyed, lost or stolen Certificate, a Protected
Purchaser of the original Certificate in lieu of which such replacement
Certificate was issued presents for payment such original Certificate, the
Issuer and the Owner Trustee shall be entitled to recover such replacement
Certificate (or such payment) from the Person to whom such replacement
Certificate was delivered or any Person taking such replacement Certificate
from such Person to whom such replacement Certificate was delivered or any
assignee of such Person, except a Protected Purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any loss, damage, cost or expense incurred by the Issuer or the Owner Trustee
in connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of ownership in the Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
(b) Upon the issuance of any replacement Certificate under this
Section, the Issuer may require the payment by the Certificateholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with such issuance and any other reasonable expenses (including
the fees and expenses of the Owner Trustee) related thereto.
(c) Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Certificate shall be
at any time enforceable by anyone, and shall be entitled to all the benefits
of this Agreement equally and proportionately with any and all other
Certificates duly issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.06. Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of Transfer, the Owner Trustee,
the Certificate Registrar, any Paying Agent and any of their respective agents
may treat the Person in whose name such Certificate is registered in the
Certificate Register (as of the day of determination) as the Certificateholder
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar, any Paying Agent or any of their
respective agents shall be bound by any notice to the contrary.
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Section 3.07. Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Master Servicer and the Depositor, or to the Indenture Trustee or the
Owner Trustee, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Master Servicer, the Depositor or the
Indenture Trustee or the Owner Trustee, as the case may be, a list, in such
form as the requesting party may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If
three or more Certificateholders, or one or more Certificateholders evidencing
not less than 25% of the aggregate Certificate Percentage Interest
(hereinafter referred to as the "Applicants"), apply in writing to the
Certificate Registrar, 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 (which shall be deemed to be a purpose reasonably related to the
Applicants' interest in the Issuer), then the Certificate Registrar shall,
within five Business Days after the receipt of such application, afford such
Applicants access during normal business hours to the current list of
Certificateholders. Each Certificateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate Registrar or the Owner Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 3.08. Maintenance of Office or Agency. The Certificate
Registrar shall maintain an office or offices or agency or agencies where
Certificates may be surrendered for registration of Transfer or exchange and
where notices and demands to or upon the Certificate Registrar in respect of
the Certificates and the Basic Documents may be served. The Certificate
Registrar initially designates the Corporate Trust Office as its office for
such purposes. The Certificate Registrar shall give prompt written notice to
the Depositor, the Owner Trustee and the Certificateholders of any change in
the location of the Certificate Registrar or any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall
make distributions to Certificateholders from the Certificate Payment Account
pursuant to Section 5.02(a) and shall report the amount of such distributions
to the Owner Trustee. The Paying Agent shall have the revocable power to
withdraw funds from the Certificate Payment Account for the purpose of making
the distributions referred to above. The Owner Trustee may revoke such power
and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall initially
be the Indenture Trustee, and any co-paying agent chosen by the Paying Agent
that is acceptable to the Owner Trustee and the Depositor. Each Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' prior written
notice to the Owner Trustee. In the event that the Indenture Trustee shall no
longer be the Paying Agent, the Owner Trustee, upon receipt of written
instruction from the Depositor, shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company). The Owner Trustee shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Owner Trustee to execute and deliver to the Owner Trustee an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Owner Trustee that, as Paying Agent, such successor 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
15
shall be paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner
Trustee. If at any time the Owner Trustee shall act as Paying Agent, the
rights, privileges, protections and indemnities afforded to the Owner Trustee
hereunder shall apply equally to the Owner Trustee in its role as Paying
Agent. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 3.10. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the
Issuer. The interests represented by the Certificates shall be nonassessable
for any losses or expenses of the Issuer or for any reason whatsoever, and,
upon the authentication thereof by the Owner Trustee pursuant to Section 3.03,
3.04 or 3.05, the Certificates are and shall be deemed fully paid.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Certificateholders with Respect to
Certain Matters. Subject to the provisions and limitations of Section 4.04,
with respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders and the Rating Agencies that have
provided ratings of the Notes, in writing of the proposed action and the
Certificateholders evidencing not less than 51% of the aggregate Certificate
Percentage Interest shall not have notified the Owner Trustee in writing prior
to the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Issuer and the
settlement of any action, proceeding, investigation, claim or lawsuit
brought by or against the Issuer, in each case (except claims or
lawsuits for collection by the Master Servicer of the Receivables
brought by the Issuer);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Statutory Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and
such amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment of the Sale and Servicing Agreement or the
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or to add any provision that
would not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee or
Certificate Registrar of its respective obligations under the
Indenture or this Agreement, as applicable.
Section 4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of a Servicer
Termination Event, subsequent to the payment in full of the Notes and in
accordance with the written direction of the Certificateholders evidencing not
less than 51% of the aggregate Certificate Percentage Interest, (i) remove the
Master Servicer pursuant to Article Seven of the Sale and Servicing Agreement,
(ii) appoint a Successor Servicer pursuant to Article Seven of the Sale and
Servicing Agreement, (iii) remove the Administrator pursuant to Section 1.09
of the Administration Agreement, (iv) appoint a successor Administrator
pursuant to Section 1.09 of the Administration Agreement
17
or (v) sell the Receivables after the termination of the Indenture, except as
expressly provided in the Basic Documents.
Section 4.03. Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Issuer unless (i) the Notes have been
paid in full and (ii) each Certificateholder approves of such commencement in
writing in advance and delivers to the Owner Trustee a certificate certifying
that such Person reasonably believes that the Issuer is insolvent.
Section 4.04. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Issuer or the Owner Trustee under this Agreement or any of
the other Basic Documents or would be contrary to the purposes of the Issuer
as set forth in Section 2.03, nor shall the Owner Trustee be obligated to
follow any such direction, if given.
Section 4.05. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Certificateholders evidencing not less than 51% of the
aggregate Certificate Percentage Interest. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to
this Agreement shall be effective if signed by Certificateholders evidencing
not less than 51% of the aggregate Certificate Percentage Interest at the time
of the delivery of such notice.
Section 4.06. Certain Litigation Matters. The Owner Trustee shall
provide prompt written notice to the Depositor, the Seller and the Master
Servicer of any action, proceeding or investigation actually known to a
Responsible Officer of the Owner Trustee that could reasonably be expected to
adversely affect the Issuer or the Owner Trust Estate or their respective
rights or obligations under any of the Basic Documents.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Payment Account. Pursuant
to Section 4.01 of the Sale and Servicing Agreement, the Master Servicer has
agreed to establish, on or before the Closing Date, and maintain in the name
of the Owner Trustee at an Eligible Institution (which shall initially be U.S.
Bank National Association) a segregated account designated as the "Wachovia
Auto Owner Trust 2006-A Certificate Payment Account" (the "Certificate Payment
Account"). The Certificate Payment Account shall be held in trust for the
benefit of the Certificateholders. Except as expressly provided in Section
3.09, the Certificate Payment Account shall be under the sole dominion and
control of the Owner Trustee. All monies deposited from time to time in the
Certificate Payment Account pursuant to the Sale and Servicing Agreement or
the Indenture shall be applied as provided in this Agreement, the Sale and
Servicing Agreement and the Indenture.
Section 5.02. Application of Trust Funds.
(a) On each Distribution Date, upon receipt from the Master Servicer
of a distribution statement pursuant to Section 4.11(a) of the Sale and
Servicing Agreement, the Owner Trustee shall (if at any time it is the Paying
Agent) or shall direct the Paying Agent to distribute to the
Certificateholders, in proportion to each Certificateholder's Certificate
Percentage Interest, amounts deposited in the Certificate Payment Account on
such Distribution Date pursuant to Section 4.06 of the Sale and Servicing
Agreement and Section 2.08 of the Indenture.
(b) On each Distribution Date, the Owner Trustee shall (if at any
time it is the Paying Agent), or shall direct the Paying Agent to, send to
each Certificateholder the statement or statements provided to the Owner
Trustee by the Master Servicer pursuant to Section 4.11 of the Sale and
Servicing Agreement with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Owner Trustee and each Paying Agent are
hereby authorized and directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any such
withholding tax that is legally owed by the Issuer (but such authorization
shall not prevent the Owner Trustee or any Paying Agent from contesting any
such tax in appropriate proceedings and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings, it being understood
that neither the Owner Trustee nor any Paying Agent shall have any duty to
contest such amounts). The amount of any withholding tax imposed with respect
to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the 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-U.S. Certificateholder), the Owner Trustee or any Paying Agent may, but
shall not be obligated to, withhold such amounts in accordance with this
Section. If a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee and each Paying Agent shall reasonably
cooperate with such Certificateholder in making such claim so long as such
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Certificateholder agrees to reimburse the Owner Trustee and each Paying Agent
for any out-of-pocket expenses incurred, as applicable.
Section 5.03. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the related Record
Date by wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at least five
Business Days prior to such Distribution Date and such Certificateholder is
the Seller or an Affiliate thereof or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the foregoing, the final distribution in
respect of any Certificate (whether on the 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 the
Certificate Registrar pursuant to Section 3.08.
Section 5.04. No Segregation of Monies; No Interest. Subject to
Sections 5.01 and 5.02, monies received by the Owner Trustee hereunder need
not be segregated in any manner except to the extent required by law, the
Indenture or the Sale and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and the Owner Trustee shall
not be liable for any interest thereon.
Section 5.05. Accounting and Reports to Noteholders,
Certificateholders, the IRS and Others. The Owner Trustee shall, upon receipt
of and based on information provided by the Seller, (i) maintain (or cause to
be maintained) the books of the Issuer on the basis of a fiscal year ending
December 31 and, based on the accrual method of accounting, (ii) deliver 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 such Certificateholder to prepare its federal and State income tax
returns, (iii) file such tax returns relating to the Issuer (including a
partnership information return, IRS Form 1065, if required) 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 Issuer's characterization as a partnership, if so characterized,
for federal income tax purposes, (iv) cause such tax returns to be signed in
the manner required by law and (v) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.02(c) with
respect to income or distributions to Certificateholders. The Owner Trustee,
on behalf of the Issuer, shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Receivables. The Owner Trustee, on behalf of the Issuer, shall not make the
election provided under Section 754 of the Code.
The Owner Trustee may satisfy its obligations with respect to this
Section and Section 5.02(c) by retaining, at the expense of the Seller,
Accountants selected by the Seller. The Owner Trustee may require the
Accountants to provide to the Owner Trustee, on or before December 31, 2006, a
letter in form and substance satisfactory to the Owner Trustee as to whether
any federal tax withholding on Certificates is then required and, if required,
the procedures to be followed with respect thereto to comply with the
requirements of the Code. The Accountants shall be required to update such
letter in each instance that any additional tax
20
withholding is subsequently required or any previously required tax
withholding shall no longer be required. The Owner Trustee shall be deemed to
have discharged its obligations pursuant to this Section and Section 5.02(c)
upon its retention of the Accountants, and the Owner Trustee shall not have
any liability with respect to the default, negligence or misconduct of the
Accountants. The Owner Trustee shall be entitled to rely on and shall be fully
protected in so relying, upon the letter, referred to in this paragraph, from
the Accountants and shall have no duty or obligation to verify the accuracy of
the contents of such letter.
Section 5.06. Signature on Returns; Tax Matters Partner.
(a) The Owner Trustee shall sign, on behalf of the Issuer, the tax
returns of the Issuer upon receipt of such completed tax returns.
(b) In the event that the Issuer is required to be treated as a
partnership for federal income tax purposes, PASS Holding LLC, or the Holder
of the greatest percentage interest of the Certificates, in the event that
PASS Holding LLC no longer owns any Certificates, shall be designated the "tax
matters partner" of the Issuer pursuant to Section 6231(a)(7)(A) of the Code
and applicable Treasury Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Section 2.03, the Owner Trustee is authorized and directed to
execute and deliver each Basic Document to which the Issuer is to be a party
and each certificate or other document attached as an exhibit to or
contemplated by any Basic Document to which the Issuer is to be a party, in
each case in such form as the Depositor shall approve and provide to the Owner
Trustee for execution, as evidenced conclusively by the Owner Trustee's
execution thereof and the Depositor's execution of this Agreement, and to
direct the Indenture Trustee to authenticate and deliver Notes in the
aggregate principal amount of $1,300,000,000 (comprised of $230,000,000
aggregate principal amount of Class A-1 Notes, $287,000,000 aggregate
principal amount of Class A-2 Notes, $420,000,000 aggregate principal amount
of Class A-3 Notes, $317,000,000 aggregate principal amount of Class A-4 Notes
and $46,000,000 aggregate principal amount of Class B Notes). In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Issuer pursuant to the Basic Documents.
Subject to Section 2.03, the Owner Trustee is further authorized from time to
time to take such action on behalf of the Issuer as is permitted by the Basic
Documents and which the Certificateholders, the Master Servicer or the
Administrator recommends in writing with respect to the Basic Documents,
except to the extent that this Agreement expressly requires the consent of the
Certificateholders for such action.
Section 6.02. General Duties.
(a) Subject to the provisions and limitations of Section 2.03, it
shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this
Agreement and each other Basic Document to which it is a party and to
administer the Issuer for the benefit of the Certificateholders, subject to
and in accordance with the Basic Documents. Notwithstanding the foregoing, the
Owner Trustee shall be deemed to have discharged (or caused to be discharged)
its duties and responsibilities hereunder and under the other Basic Documents
to the extent the Administrator has agreed in the Administration Agreement to
perform any act or to discharge any duty of the Owner Trustee or the Issuer
hereunder or under any other Basic Document, and the Owner Trustee shall not
be held liable for the default, negligence or failure of the Administrator to
carry out its obligations under the Administration Agreement. The Owner
Trustee shall have no duty or obligation to oversee the Administrator in the
exercise of its duties or obligations under the Administration Agreement.
(b) The Owner Trustee shall cooperate with the Administrator in
carrying out the Administrator's obligation to qualify and preserve the
Issuer's qualification to do business in each jurisdiction, if any, in which
such qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Receivables and any other
instrument and agreement included in the Owner Trust Estate; provided that the
Owner Trustee may rely on advice of counsel with respect to such obligation.
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Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, and in accordance with the terms of the
Basic Documents, the Certificateholders may, by written instruction, direct
the Owner Trustee in the management of the Issuer.
(b) The Owner Trustee shall not be required to take any action under
this Agreement or any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms of this Agreement or any other Basic Document or is
otherwise contrary to law.
(c) Subject to Article Four, whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the
terms of this Agreement or any other Basic Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders of record as of the preceding Record
Date, requesting instruction as to the course of action to be adopted, and to
the extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate written 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 other Basic Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
(d) Subject to Article Four, in the event the Owner Trustee is unsure
as to the application of any provision of this Agreement or any other Basic
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is
silent or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Certificateholders of record as of the preceding Record Date,
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate written 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
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action
or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document
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contemplated hereby to which the Owner Trustee or the Issuer is a party,
except as expressly provided by the terms of this Agreement or in any document
or written instruction received by the Owner Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Agreement or any
other Basic Document against the Owner Trustee. The Owner Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or Lien granted to it hereunder or to prepare or file
any Commission filing for the Issuer or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Liens (other than the Lien of the Indenture) on any part of the Owner
Trust Estate that result from actions by, or claims against, the Owner Trustee
in its individual capacity that are not related to the ownership or the
administration of the Owner Trust Estate.
Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except in
accordance with (i) the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) the other Basic Documents to
which the Issuer is a party and (iii) any document or written instruction
delivered to the Owner Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take any
action that (i) is inconsistent with the purposes of the Issuer set forth in
Section 2.03 or (ii) to the actual knowledge of a Responsible Officer of the
Owner Trustee, would (a) affect the treatment of the Notes as indebtedness for
federal income or State income or franchise tax purposes, (b) be deemed to
cause a taxable exchange of the Notes for federal income or State income or
franchise tax purposes or (c) cause the 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, the Administrator and the Master Servicer shall not direct
the Owner Trustee to take action that would violate the provisions of this
Section.
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ARTICLE SEVEN
THE OWNER TRUSTEE
Section 7.01. Acceptance of Duties. The Owner Trustee accepts the
trust hereby continued and agrees to perform its duties hereunder, but only
upon the terms of this Agreement. The Owner Trustee also agrees to disburse
all monies actually received by it in accordance with the Basic Documents and
constituting part of the Owner Trust Estate upon the terms of this Agreement.
The Owner Trustee shall not be answerable or accountable hereunder or under
any other Basic Document under any circumstances, except (i) for its own
willful misconduct, bad faith or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.03
expressly made by the Owner Trustee, in its individual capacity. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee
unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken in good faith by it in accordance
with the provisions of this Agreement at the instructions of the
Administrator, the Depositor, the Indenture Trustee, the Master
Servicer or the Certificateholders;
(c) no provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or
powers hereunder or under any other Basic Document if the Owner
Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any Basic Document,
including the principal of and interest on the Notes or payments to
the Certificateholders;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust
Estate, or for or in respect of the validity or sufficiency of the
Basic Documents, other than the signature and the certificate of
authentication of the Owner Trustee on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty
or obligation to any Noteholder or Certificateholder, other than as
expressly provided for in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default,
negligence or misconduct of the Administrator, the Depositor, any
Certificateholder, the Indenture Trustee, the Master Servicer or the
Seller under any Basic Document or otherwise, and
25
the Owner Trustee shall have no obligation or liability to perform
the obligations of the Issuer under this Agreement or the other Basic
Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the
Indenture or the Seller, the Master Servicer or the Depositor under
the Sale and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic
Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to
the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby, the right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement or in any other
Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable other than for its negligence, bad
faith or willful misconduct in the performance of any such act;
(h) the right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or any other Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable
other than for its willful misconduct, bad faith or negligence in the
performance of any such act;
(i) the Owner Trustee shall have no responsibility for the accuracy
of any information provided to Certificateholders or any other
individual or entity that has been obtained from, or provided to the
Owner Trustee by, any other Person;
(j) in the absence of negligence or bad faith on its part, the
Owner Trustee may conclusively rely upon certificates or Opinions of
Counsel furnished to the Owner Trustee and conforming to the
requirements of this Agreement in determining the truthfulness of the
statements and the correctness of the opinions contained therein;
provided, however, that the Owner Trustee shall have examined such
certificates or Opinions of Counsel so as to determine compliance of
the same with the requirements of this Agreement; and
(k) the Owner Trustee shall incur no liability if, by reason of any
provision of any present or future law or regulation thereunder, or
by any force majeure event, including natural disaster, war or other
circumstances beyond its reasonable control, the Owner Trustee shall
be prevented from doing or performing any act or thing which the
terms of this Agreement provide shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any directions
provided for herein.
Section 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
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Section 7.03. Representations and Warranties. The Owner Trustee, in
its individual capacity, hereby represents and warrants to the Depositor for
the benefit of the Certificateholders, that:
(a) it is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
meets the eligibility criteria set forth in Section 10.01;
(b) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) 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; and
(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 the Owner Trustee
or any judgment or order binding on it, constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of
any lien, charge or encumbrance on the Owner Trust Estate pursuant to
the provisions of any mortgage, indenture, contract, agreement or
undertaking to which it is a party (other than the Basic Documents),
which lien, charge or encumbrance could reasonably be expected to
have a materially adverse effect on the Owner Trustee's performance
or ability to perform its duties as trustee under this Agreement or
on the transactions contemplated in this Agreement.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee may rely upon, shall be protected in relying
upon and shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties and need not
investigate any fact or matter in any such document as long as the Owner
Trustee has otherwise satisfied its obligations under this Agreement (nothing
in this sentence shall be construed to relieve the Owner Trustee of any
obligation it may have in this Agreement, including the obligations set forth
in Section 7.01). The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or
matter the method of determination of which is not specifically prescribed
herein, the Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any Vice President or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
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(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Owner Trustee may (i) act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with reasonable care and (ii) consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such Persons and not
contrary to this Agreement or any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as otherwise
provided in this Article, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the signature and the certificate of authentication of the Owner Trustee on
the Certificates) shall be taken as the statements of the Depositor, and the
Owner Trustee assumes no responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Basic Document, the Certificates (other than the
signature and the certificate of authentication of the Owner Trustee on the
Certificates and the representations and warranties in Section 7.03) or the
Notes, or of any Receivable or related documents. The Owner Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection and
priority of any security interest created by any Receivable in any Financed
Vehicle or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to
generate the payments to be distributed to the Certificateholders under this
Agreement or to 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 the Issuer or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor, the Seller or the Master Servicer
with any warranty or representation made under any Basic Document or in any
related document or the accuracy of any such warranty or representation, or
any action of the Administrator, the Indenture Trustee or the Master Servicer
taken in the name of the Owner Trustee.
Section 7.07. Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become a Certificateholder
or Noteholder or pledgee of Certificates or Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee, the Seller and the Master
Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
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Section 7.08. Paying Agent; Authenticating Agent. The rights and
protections afforded to the Owner Trustee pursuant to this Article and
Sections 8.02, 10.02 and 10.03 shall also be afforded to each Paying Agent,
any authenticating agent and the Certificate Registrar.
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ARTICLE EIGHT
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Master Servicer
and the Owner Trustee, and upon the formation of the Issuer, the Owner Trustee
shall be entitled to be reimbursed, except as otherwise provided in the Basic
Documents, by the Master Servicer for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder.
Section 8.02. Indemnification. Wachovia Bank shall be liable as prime
obligor for, and shall indemnify the Indemnified Parties from and against, any
and all Expenses, which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, the other Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee hereunder; provided, however, that Wachovia
Bank shall not be liable for or required to indemnify an Indemnified Party
from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 7.01. In no event will Wachovia
Bank or the Owner Trustee be entitled to make any claim upon the Owner Trust
Estate for the payment or reimbursement of any Expenses. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In the event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of Wachovia Bank, which approval shall not be unreasonably withheld.
Section 8.03. Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Article Eight) shall
terminate and be of no further force or effect and the Issuer shall dissolve
upon the earlier of (i) the payment to the Master Servicer, the Paying Agent,
the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement and Article Five,
(ii) the Distribution Date next succeeding the month which is one year after
the maturity or other liquidation of the last Receivable and the disposition
of any amounts received upon liquidation of any property remaining in the
Issuer or (iii) upon the purchase of the Receivables by the Master Servicer in
connection with an Optional Purchase and retirement of the Notes and
Certificates. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder shall not (i) operate to terminate this Agreement or the
Issuer, (ii) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Issuer or the Owner Trust
Estate or (iii) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Issuer.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Master Servicer, 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 the
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 and that payments are being made only upon presentation and
surrender of the Certificates at the office of the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders, subject to Section 3808 of the Statutory Trust Statute,
amounts distributable on such Distribution Date pursuant to Section 5.02.
(d) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain
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subject to this Agreement. Subject to applicable escheat laws, any funds
remaining in the Issuer after exhaustion of such remedies shall be distributed
by the Owner Trustee to the Seller, as Certificateholder.
(e) Upon the winding up of the Issuer, in accordance with Section
3808 of the Statutory Trust Statute, and its termination, the Owner Trustee,
acting pursuant to the written instructions of the Depositor, which
instructions shall certify that the winding up of the Issuer has been duly
completed in accordance with this Article, shall cause the Certificate of
Trust to be cancelled by filing a certificate of cancellation with the
Secretary of State in accordance with the provisions of Section 3810(d) of the
Statutory Trust Statute.
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ARTICLE TEN
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times (i) be authorized to exercise corporate trust
powers, (ii) have a combined capital and surplus of at least $50,000,000 and
be subject to supervision or examination by federal or State authorities and
(iii) have (or have a parent that has) a long-term debt rating of investment
grade by each of the Rating Agencies or otherwise be acceptable to each of the
Rating Agencies. If such entity 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 or banking association shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in
Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the
Administrator and the Depositor, and will provide to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligations under the Exchange Act with respect to the resignation
of the Owner Trustee. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor Owner Trustee acceptable to
the Depositor 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.
(b) If at any time the Owner Trustee shall: (i) cease to be eligible
in accordance with Section 10.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee
shall be legally unable to act; (ii) be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation; (iii) fail to comply with any of its obligations under Section
10.02, Section 10.04 or Article Eleven of this Agreement, during the period
that the Depositor is required to file Exchange Act Reports with respect to
the Issuer and such failure is not remedied within the lesser of ten calendar
days and the period of time in which the related Exchange Act Report is
required to be filed (without taking into account any extensions) or (iv)
otherwise become incapable of acting, then the Administrator or the Depositor
may remove the Owner Trustee. If the Administrator or Depositor shall remove
the Owner Trustee under the authority of the immediately preceding sentence,
the Administrator shall promptly appoint a successor Owner Trustee acceptable
to the Depositor by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
33
copy to the successor Owner Trustee, and shall pay all fees and expenses owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each Rating Agency that
has provided ratings of the Notes, the Depositor, the Certificateholders and
the Indenture Trustee.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement and deliver to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligations under the Exchange Act with respect to the successor
Owner Trustee, and thereupon, subject to the payment of all fees and expenses
owed to the predecessor Owner Trustee, the resignation or removal of the
predecessor Owner Trustee shall become effective, and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under this Agreement, with like effect as if originally named as Owner
Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements
and monies held by it under this Agreement and the Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.01.
Any successor Owner Trustee appointed pursuant to this Section shall
file an amendment to the Certificate of Trust with the Secretary of State
reflecting the name and principal place of business of such successor in the
State of Delaware.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and each Rating
Agency that has provided ratings of the Notes. If the Administrator shall fail
to mail such notice within ten days after acceptance of such appointment by
the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Administrator.
Section 10.04. Merger or Consolidation of Owner Trustee.
(a) If the Owner Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or assets
to, another entity, the resulting, surviving or
34
transferee corporation or banking association without any further act, except
the filing of an amendment to the Certificate of Trust, if required under the
Statutory Trust Statute, shall be the successor Owner Trustee; provided,
however, that such corporation or banking association must be otherwise
qualified and eligible under Section 10.01. The Owner Trustee shall (i)
provide the Rating Agencies that have provided ratings of the Notes with
written notice as soon as practicable after a public announcement is made
regarding any such transaction, (ii) file an amendment to the Certificate of
Trust as required by Section 9.03 (if required under the Statutory Trust
Statute) and (iii) provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligations under the
Exchange Act with respect to the successor Owner Trustee.
(b) If any of the Certificates shall have been authenticated but not
delivered at the time such successor or successors by consolidation, merger or
conversion to the Owner Trustee shall succeed to the trusts created by this
Agreement, any such successor to the Owner Trustee may adopt the certificate
of authentication of any predecessor trustee and deliver such Certificates so
authenticated. If any of the Certificates shall not have been authenticated
upon such succession, any such successor to the Owner Trustee may authenticate
such Certificates either in the name of any predecessor trustee or in the name
of the successor to the Owner Trustee. In all such cases such certificates
shall have the full force which the Certificates or this Agreement provide
that the certificate of the Owner Trustee shall have.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Owner Trust Estate, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the
Owner Trust Estate or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If
the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor Owner Trustee pursuant to Section 10.01, except that such co-trustee
or successor trustee shall have the Required Rating or otherwise be acceptable
to each Rating Agency, and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred or imposed upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
35
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Owner Trust
Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor co-trustee or separate trustee.
36
ARTICLE ELEVEN
Section 11.01. Intent of the Parties; Reasonableness.
(a) The Depositor and the Owner Trustee acknowledge and agree that
the purpose of this Article Eleven is to facilitate compliance by the
Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. The Depositor shall not exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than the Depositor's
compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder (or the provision in a private
offering of disclosure comparable to that required under the Securities Act).
The Owner Trustee agrees to cooperate in good faith with any reasonable
request by the Depositor for information regarding the Owner Trustee which is
required in order to enable the Depositor to comply with the provisions of
Regulation AB, including, without limitation, Items 1109(a), 1109(b), 1117 and
1119 of Regulation AB as it relates to the Owner Trustee or to the Owner
Trustee's obligations under this Agreement.
Section 11.02. Representations and Warranties. The Owner Trustee
represents that:
(i) there are no affiliations, relating to the Owner Trustee with
respect to any Item 1119 Party;
(ii) there are no relationships or transactions with respect to any
Item 1119 Party and the Owner Trustee that are outside the ordinary
course of business or on terms other than would be obtained in an
arm's length transaction with an unrelated third party, apart from
the transactions contemplated under the Basic Documents, and that are
material to the investors' understanding of the Notes; and
(iii) there are no legal proceedings pending, or known to be
contemplated by governmental authorities, against the Owner Trustee,
or of which the property of the Owner Trustee is subject, that is
material to the Noteholders.
Section 11.03. Information to Be Provided by the Owner Trustee.
(a) For so long as the Depositor is required to report under
Regulation AB, the Owner Trustee shall, as promptly as practicable, notify the
Depositor, in writing, of: (i) the commencement of, a material development in
or, if applicable, the termination of, any and all legal proceedings against
the Owner Trustee or any and all proceedings of which any property of the
Owner Trustee is the subject, that is material to the noteholders; and (ii)
any such proceedings known to be contemplated by governmental authorities. The
Owner Trustee shall also notify the Depositor, in writing, as promptly as
practicable following notice to or discovery by a Responsible Officer of the
Owner Trustee of any material changes to proceedings described in the
preceding sentence. In addition, the Owner Trustee will furnish to the
Depositor, in writing, the necessary disclosure regarding the Owner Trustee
describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the Depositor
pursuant to the Exchange Act.
37
(b) For so long as the Depositor is required to report under
Regulation AB, the Owner Trustee shall (i) on or before the fifth Business Day
of each January, April, July and October, provide to the Depositor such
information regarding the Owner Trustee as is required for the purpose of
compliance with Items 1109(a), 1109(b) and 1119 of Regulation AB; provided,
however, the Owner Trustee shall not be required to provide such information
in the event that there has been no change to the information previously
provided by the Owner Trustee to the Depositor; and (ii) as promptly as
practicable following notice to or discovery by a Responsible Officer of the
Owner Trustee of any changes to such information, provide to the Depositor, in
writing, such updated information. Such information shall include, at a
minimum:
(A) the Owner Trustee's name and form of organization;
(B) a description of the extent to which the Owner Trustee has
had prior experience serving as a trustee for asset-backed
securities transactions involving auto finance receivables;
(C) a description of any affiliation between the Owner Trustee
and any of the following parties to a Securitization Transaction,
as such parties are identified to the Owner Trustee by the
Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any master servicer or subservicer;
(5) any other trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material party related to any Securitization
Transaction.
In addition, the Owner Trustee shall provide a description of whether
there is, and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding between the Owner Trustee
and any above-listed party that is entered into outside the ordinary course of
business or is on terms other than would be obtained in an arm's length
transaction with an unrelated third party, apart from the Securitization
Transactions, that currently exists or that existed during the past two years
and that is material to an investor's understanding of the Notes.
38
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time by the Depositor
and the Owner Trustee with prior written notice to the Rating Agencies that
have provided ratings of the Notes, without the consent of any of the
Noteholders or the Certificateholders, (i) to cure any ambiguity, to correct
or supplement any provision herein that may be inconsistent with any other
provision herein or in any offering document used in connection with the
initial offer and sale of the Notes or the Certificates, (ii) for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement which will not be inconsistent with other
provisions of this Agreement and (iii) to further clarify or amend any
provision of Article Eleven; provided, however, that no such amendment (i) may
materially adversely affect the interests of any Noteholder or
Certificateholder and (ii) will be permitted unless an Opinion of Counsel is
delivered to the Owner Trustee to the effect that such amendment will not
cause the Issuer to be characterized for federal income tax purposes as an
association or publicly-traded partnership taxable as a corporation or
otherwise have any material adverse impact on the federal income taxation of
any Notes Outstanding or outstanding Certificates.
(b) This Agreement may be amended from time to time by the Depositor
and the Owner Trustee with prior written notice to the Rating Agencies that
have provided ratings of the Notes and with the consent of the Noteholders of
Notes evidencing not less than 51% of the Note Balance or, if the Notes have
been paid in full, the Certificateholders evidencing not less than 51% of the
aggregate Certificate Percentage Interest, for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Agreement or modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment will be
permitted unless an Opinion of Counsel is delivered to the Owner Trustee to
the effect that such amendment will not cause the Issuer to be characterized
for federal income tax purposes as an association or a publicly traded
partnership taxable as a corporation or otherwise have any material adverse
impact on the federal income taxation of any Notes Outstanding or outstanding
Certificates; and, provided further, that no such amendment may:
(i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, or change the allocation or priority of,
collections of payments on or in respect of the Receivables or
distributions that are required to be made for the benefit of the
Noteholders or the Certificateholders without the consent of all
Noteholders and Certificateholders adversely affected by such
amendment;
(ii) reduce the percentage of the Note Balance or the percentage of
the aggregate Certificate Percentage Interest the consent of the
Noteholders or Certificateholders, as applicable, of which is
required for any amendment to this Agreement without the consent of
all the Noteholders and Certificateholders adversely affected by the
amendment; or
39
(iii) adversely affect the rating assigned by any Rating Agency
that has provided ratings of the Notes, to any Class of Notes without
the consent of the Noteholders evidencing not less than 66 2/3% of
the Note Balance of such Class of Notes.
(c) An amendment to this Agreement shall be deemed not to materially
adversely affect the interests of any Noteholder or Certificateholder if (i)
the Person requesting such amendment obtains and delivers to the Owner Trustee
an Opinion of Counsel to that effect or (ii) the Rating Agency Condition is
satisfied.
(d) Promptly after the execution of any such amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Depositor shall furnish
written notice of the substance of such amendment or consent to the Indenture
Trustee and the Rating Agencies that have provided ratings of the Notes.
(e) It shall not be necessary for the consent of the
Certificateholders, the Noteholders or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Basic
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(f) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall file such amendment or cause such amendment
to be filed with the Secretary of State.
(g) The Owner Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Owner Trustee's own rights, duties,
liabilities or immunities under this Agreement or otherwise.
(h) Prior to the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Issuer is a party, the Owner
Trustee shall be entitled to receive and shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent in
this Agreement to the execution and delivery of such amendment have been
satisfied.
Section 12.02. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided beneficial interest
therein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their beneficial interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
40
Section 12.03. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the
Indemnified Parties, the Depositor, the Certificateholders, the Administrator,
the Master Servicer and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement or in the
Certificates, 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 12.04. Notices. All demands, notices and other communications
under this Agreement shall be in writing, personally delivered, sent by
telecopier, overnight courier or mailed by certified mail, return receipt
requested, or where electronic delivery is applicable and requested, shall be
delivered by electronic delivery, and shall be deemed to have been duly given
upon receipt in the case of (i) the Owner Trustee, at the Corporate Trust
Office, (ii) the Depositor, at One Wachovia Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasury ABS
Department, (iii) the Indenture Trustee, at the Corporate Trust Office (as
defined in the Indenture), (iv) Fitch, to Fitch Ratings, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Auto ABS Group (email:
▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇-▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (v) Standard & Poor's, to Standard &
Poor's Ratings Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance
Department (e-mail: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇) or (vi) as to each of the
foregoing, at such other address as shall be designated by written notice to
the other entities whose addresses are listed in this Section. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
Section 12.05. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement or the Certificates shall be
for any reason whatsoever held invalid, illegal or unenforceable, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and
the Certificates and shall in no way affect or impair the validity or
enforceability of the other covenants, agreements, provisions and terms of
this Agreement or of the Certificates or the rights of the Certificateholders.
Section 12.06. 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 12.07. Successors and Assigns. All covenants and agreements
contained herein and in the Certificates shall be binding upon, and inure to
the benefit of, each of the Depositor, the Owner Trustee, and each
Certificateholder and their respective 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.
41
Section 12.08. Covenants of the Depositor. The Depositor shall not at
any time institute against the Issuer, or join in any institution against the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or State bankruptcy or similar law in connection with any obligations relating
to the Certificates, the Notes, this Agreement or any of the other Basic
Documents.
Section 12.09. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate or a beneficial interest
therein, and the Indenture Trustee and each Noteholder, by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at
any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer 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 other Basic Document.
Section 12.10. No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that the Certificates represent beneficial interests
in the Issuer only and do not represent interests in or obligations of the
Depositor, the Seller, the Master Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in the Certificates, this Agreement or any
other Basic Document.
Section 12.11. Headings. The Article and Section headings and the
Table of Contents herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
Section 12.12. 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 12.13. Servicer Payment Obligation. The Master Servicer shall
be responsible for the payment of all fees and expenses of the Issuer, the
Owner Trustee and the Indenture Trustee paid by any of them in connection with
any of their obligations under the Basic Documents to obtain or maintain or
cause to be obtained or maintained any required license under the (i) Maryland
Vehicle Sales Finance Act or (ii) Pennsylvania Motor Vehicle Sales Finance
Act.
42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers, thereunto duly authorized, as
of the day and year first above written.
POOLED AUTO SECURITIES SHELF LLC,
as Depositor
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
Agreed and Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Second Amended and Restated Trust Agreement
EXHIBIT A
THIS ASSET BACKED CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO
THE NOTES TO THE EXTENT DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND
SERVICING AGREEMENT AND THE INDENTURE REFERRED TO HEREIN.
THIS ASSET BACKED CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
THIS ASSET BACKED CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN
OBLIGATION OF POOLED AUTO SECURITIES SHELF LLC, WACHOVIA BANK, NATIONAL
ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
THIS ASSET BACKED CERTIFICATE MAY NOT BE ACQUIRED BY OR WITH PLAN
ASSETS OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT THAT IS
SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
REGISTERED NO. R-1
WACHOVIA AUTO OWNER TRUST 2006-A
ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of Wachovia Auto
Owner Trust 2006-A, a Delaware statutory trust (the "Issuer"), which
property includes a pool of retail installment sale contracts secured
by new and used motor vehicles sold by Wachovia Bank, National
Association, a national banking association ("Wachovia Bank"), to
Pooled Auto Securities Shelf LLC, a Delaware limited liability
company (the "Depositor"), and sold by the Depositor to the Issuer.
The property of the Issuer (other than the Certificate Payment
Account and the proceeds thereof) has been pledged by the Issuer to
U.S. Bank National Association, a national banking association, as
trustee (the "Indenture Trustee"), pursuant to an indenture, dated as
of June 1, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the "Indenture"), between the Issuer and
the Indenture Trustee, to secure the payment of the Notes issued
thereunder.
This certifies that PASS HOLDING LLC is the registered owner of a
100% Certificate Percentage Interest nonassessable, fully paid, beneficial
interest in the Issuer. The Issuer was created pursuant to a trust agreement
dated August 17, 2005 between the Depositor and Wilmington Trust Company, as
trustee (in such capacity, and not in its individual capacity, the "Owner
Trustee"), as amended and restated by the amended and restated trust
agreement, dated as of September 20, 2005, between the Depositor and the Owner
Trustee, and as further amended and restated by the second amended and
restated trust agreement, dated June 1, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the "Trust
A-1
Agreement"), between the Depositor and the Owner Trustee, a summary of certain
of the pertinent provisions of which is set forth below. Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed in
the Trust Agreement, the Indenture or in the sale and servicing agreement,
dated as of June 1, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the "Sale and Servicing Agreement"), among the
Issuer, the Depositor and Wachovia Bank, as seller (in such capacity, the
"Seller") and master servicer (in such capacity, the "Master Servicer").
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, to which Trust Agreement the
registered holder of this Certificate (the "Certificateholder") by virtue of
the acceptance hereof assents and by which such Certificateholder is bound.
The property of the Issuer primarily includes: (i) a pool of retail
installment sale contracts originated in connection with the sale of new or
used motor vehicles (the "Receivables"), (ii) all amounts received on or in
respect of the Receivables after the Cutoff Date, (iii) the security interests
in the Financed Vehicles granted by the Obligors pursuant to the Receivables
and (iv) all proceeds of the foregoing.
THE RIGHTS OF THE ISSUER IN THE FOREGOING PROPERTY OF THE ISSUER
(OTHER THAN THE CERTIFICATE PAYMENT ACCOUNT AND THE PROCEEDS THEREOF) HAVE
BEEN PLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Pursuant to the Trust Agreement, there will be distributed on each
Distribution Date to the Person in whose name this Certificate is registered
at the close of business on the Business Day preceding such Distribution Date
such Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such Distribution Date. "Distribution
Date" means the 20th day of each month or, if such 20th day is not a Business
Day, the following Business Day, commencing on July 20, 2006.
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 TRUST
AGREEMENT, THE SALE AND SERVICING AGREEMENT AND THE INDENTURE.
It is the intent of the Depositor, the Seller, the Master Servicer
and the Certificateholders that, for purposes of federal income taxes, State
and local income taxes and any other income taxes the Issuer will be treated
as either an entity that is disregarded as separate from the beneficial owner
of the equity in the Issuer if there is only one such owner, or as a
partnership (other than an association or publicly traded partnership) if
there are two or more such owners. The Depositor and any other
Certificateholders, by acceptance of a Certificate, agree with the foregoing
characterization of the Certificates for such tax purposes and further agree
to take no action inconsistent therewith.
Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest therein, covenants and agrees that such Certificateholder
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer of, any
A-2
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Certificates, the Trust Agreement or any other Basic Document.
Distributions on this Certificate will be made as provided in the
Trust Agreement by the Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Certificate or the making of any notation
hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at
the office or agency of the Certificate Registrar maintained for that purpose
in Wilmington, Delaware.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if fully set forth on the face of
this Certificate.
Unless the certificate of authentication hereon has been executed by
an authorized officer of the 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.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and
not in its individual capacity, has caused this Certificate to be duly
executed as of the date set forth below.
Dated: June __, 2006 WACHOVIA AUTO OWNER TRUST 2006-A,
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
---------------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
Dated: June __, 2006 WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
---------------------------------------
Name:
Title:
A-4
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an interest
in, the Depositor, the Seller, the Master Servicer, the Administrator, the
Owner Trustee or any of their respective Affiliates, and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated herein, in the Trust Agreement or in the other Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections with respect to the Receivables (and certain other amounts), all
as more specifically set forth herein and in the Indenture and the Sale and
Servicing Agreement.
The Trust Agreement permits the Depositor and the Owner Trustee, on
behalf of the Issuer, with certain exceptions therein provided, to amend from
time to time certain terms and conditions set forth in the Trust Agreement
without the consent of the Certificateholders. The Trust Agreement also
permits the Depositor and the Owner Trustee, on behalf of the Issuer, with
certain exceptions as therein provided, to amend certain terms and conditions
set forth in the Trust Agreement with the consent of the Noteholders
evidencing not less than 51% of the Note Balance and the Certificateholders
evidencing not less than 51% of the aggregate Certificate Percentage Interest.
Any such consent by the Certificateholder shall be conclusive and binding on
such Certificateholder and on all future Certificateholders and of any
Certificate issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof whether or not notation of such consent is made upon
this Certificate.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of this Certificate may be registered in the
Certificate Register upon surrender of this Certificate for registration of
Transfer at the Corporate Trust Office and a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Certificateholder or such Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Certificates in any
authorized denomination and in the same aggregate Certificate Percentage
Interest in the Issuer will be issued to the designated transferee or
transferees. No service charge shall be made for any registration of Transfer
or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection therewith. The initial
Certificate Registrar appointed under the Trust Agreement is the Owner
Trustee.
Each Certificateholder, by its acceptance of a Certificate, shall be
deemed to have represented and warranted that such Certificateholder is not an
(i) employee benefit plan or arrangement subject to Title I of ERISA, a plan
subject to Section 4975 of the Code or any entity whose underlying assets
include plans assets by reason of a plan's investment in the entity (a
"Benefit Plan"), nor a person acting on behalf of a Benefit Plan nor using the
assets of a Benefit Plan to effect the transfer of such Certificate, or (ii)
insurance company purchasing a Certificate with funds contained in an
"insurance company general account" (as defined in Section V(e) of PTCE 95-60)
that includes the assets of a Benefit Plan for purposes of the Plan Asset
Regulation.
Any Person who is not an Affiliate of the Seller and acquires more
than 49.9% of the Certificates will be deemed to represent that it is not a
party in interest (within the meaning of ERISA) or a disqualified person
(within the meaning of Section 4975(e)(2) of the Code) with
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respect to any Benefit Plan, other than a Benefit Plan that it sponsors for
the benefit of its employees, and that no Benefit Plan with respect to which
it is a party in interest has or will acquire any interest in the Notes.
The Certificates are issuable only in registered form in
denominations as provided in the Trust Agreement, subject to certain
limitations therein set forth.
The Owner Trustee, the Certificate Registrar and any Paying Agent may
treat the Person in whose name this Certificate is registered in the
Certificate Register (as of the day of determination) as the owner of this
Certificate for the purpose of receiving distributions pursuant to the Trust
Agreement and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar or any Paying Agent shall be bound by any
notice to the contrary.
The Trust Agreement, with certain exceptions therein provided, and
the Issuer shall terminate and be of no further force or effect upon the
earlier of (i) the payment to the Master Servicer, the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement and the Trust
Agreement, (ii) the Distribution Date next succeeding the month which is one
year after the maturity or other liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any property remaining
in the Issuer and (iii) upon the purchase of the Receivables by the Master
Servicer in connection with an Optional Purchase.
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ASSIGNMENT
SOCIAL SECURITY NUMBER
OR OTHER IDENTIFICATION
NUMBER OF ASSIGNEE: ________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto____________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ________________________, attorney, to transfer said
Certificate on the Certificate Register, 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 whatsoever. Such signature must be guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Certificate Registrar.
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EXHIBIT B
CERTIFICATE OF TRUST OF
WACHOVIA AUTO OWNER TRUST 2006-A
This Certificate of Trust of Wachovia Auto Owner Trust 2006-A (the
"Trust"), is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, as trustee (the "Trustee"), to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. Code, ss. 3801 et seq.)
(the "Act").
1. Name. The name of the statutory trust formed hereby is Wachovia
Auto Owner Trust 2006-A.
2. Delaware Trustee. The name and business address of a trustee of
the Trust having its principal place of business in the State of Delaware is
Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust in accordance with Section 3811
of the Act.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------
Name:
Title:
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