EXHIBIT 4.3
TRUST AGREEMENT
BETWEEN
WHOLESALE AUTO RECEIVABLES LLC
DEPOSITOR
AND
HSBC BANK USA, NATIONAL ASSOCIATION
OWNER TRUSTEE
DATED AS OF ____________, 20___
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE .................... 1
SECTION 1.1 Definitions ............................................. 1
ARTICLE II ORGANIZATION ................................................. 1
SECTION 2.1 Name .................................................... 1
SECTION 2.2 Office .................................................. 1
SECTION 2.3 Purposes and Powers ..................................... 1
SECTION 2.4 Appointment of Owner Trustee ............................ 2
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate ...... 2
SECTION 2.6 Declaration of Trust .................................... 2
SECTION 2.7 Liability of the Certificateholder ...................... 3
SECTION 2.8 Title to Trust Property ................................. 3
SECTION 2.9 Situs of Trust .......................................... 3
SECTION 2.10 Representations and Warranties of the Depositor ......... 3
SECTION 2.11 Tax Treatment ........................................... 4
ARTICLE III THE CERTIFICATE ............................................. 4
SECTION 3.1 [Intentionally Omitted] ................................. 4
SECTION 3.2 Form of the Certificate ................................. 4
SECTION 3.3 Execution, Authentication and Delivery .................. 5
SECTION 3.4 Registration; Registration of Transfer and Exchange
of the Certificate ................................... 5
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificate ........ 7
SECTION 3.6 Persons Deemed Certificateholder ........................ 8
SECTION 3.7 Access to List of Certificateholder's Name and Address .. 8
SECTION 3.8 Maintenance of Corporate Trust Office ................... 8
SECTION 3.9 Appointment of Paying Agent ............................. 8
SECTION 3.10 Certificate Issued to Depositor ......................... 9
SECTION 3.11 Depositor as Certificateholder .......................... 9
ARTICLE IV ACTIONS BY OWNER TRUSTEE ..................................... 9
SECTION 4.1 Prior Notice to Certificateholder with Respect to
Certain Matters ...................................... 9
SECTION 4.2 Action by Certificateholder with Respect to Certain
Matters .............................................. 10
SECTION 4.3 Action by Certificateholder with Respect to Bankruptcy .. 10
SECTION 4.4 Restrictions on Certificateholder's Power ............... 10
SECTION 4.5 Majority Control ........................................ 10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES .................... 11
SECTION 5.1 Establishment of Certificate Distribution Account ....... 11
SECTION 5.2 Application of Trust Funds .............................. 11
SECTION 5.3 Method of Payment ....................................... 12
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SECTION 5.4 Accounting and Reports to the Certificateholder, the
Internal Revenue Service and Others .................. 13
SECTION 5.5 Signature on Returns; Tax Matters Partner ............... 13
ARTICLE VI THE OWNER TRUSTEE ............................................ 13
SECTION 6.1 Duties of Owner Trustee ................................. 13
SECTION 6.2 Rights of Owner Trustee ................................. 14
SECTION 6.3 Acceptance of Trusts and Duties ......................... 14
SECTION 6.4 Action upon Instruction by the Certificateholder ........ 16
SECTION 6.5 Furnishing of Documents ................................. 17
SECTION 6.6 Representations and Warranties of Owner Trustee ......... 17
SECTION 6.7 Reliance; Advice of Counsel ............................. 18
SECTION 6.8 Owner Trustee May Own Certificate and Notes ............. 18
SECTION 6.9 Compensation and Indemnity .............................. 18
SECTION 6.10 Replacement of Owner Trustee ............................ 19
SECTION 6.11 Merger or Consolidation of Owner Trustee ................ 20
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee ........... 20
SECTION 6.13 Eligibility Requirements for Owner Trustee .............. 21
ARTICLE VII TERMINATION OF TRUST AGREEMENT .............................. 21
SECTION 7.1 Termination of Trust Agreement .......................... 21
ARTICLE VIII AMENDMENTS ................................................. 23
SECTION 8.1 Amendments Without Consent of Securityholders ........... 23
SECTION 8.2 Amendments With Consent of the Certificateholder and
Noteholders .......................................... 24
SECTION 8.3 [Reserved] .............................................. 24
SECTION 8.4 Form of Amendments ...................................... 25
ARTICLE IX MISCELLANEOUS ................................................ 25
SECTION 9.1 No Legal Title to Owner Trust Estate .................... 25
SECTION 9.2 Limitations on Rights of Others ......................... 25
SECTION 9.3 Derivative Actions ...................................... 25
SECTION 9.4 Notices ................................................. 25
SECTION 9.5 Severability of Provisions .............................. 26
SECTION 9.6 Counterparts ............................................ 26
SECTION 9.7 Successors and Assigns .................................. 26
SECTION 9.8 No Petition Covenants ................................... 26
SECTION 9.9 No Recourse ............................................. 26
SECTION 9.10 Headings ................................................ 27
SECTION 9.11 Governing Law ........................................... 27
SECTION 9.12 [Reserved] .............................................. 27
SECTION 9.13 Indemnification by and Reimbursement of the Servicer .... 27
ARTICLE X COMPLIANCE WITH REGULATION AB ................................. 28
SECTION 10.1 Intent of the Parties; Reasonableness ................... 28
SECTION 10.2 Information to be Provided by the Owner Trustee ......... 28
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EXHIBITS
Exhibit A Form of Certificate of Trust
Exhibit B Form of Certificate
Exhibit C Form of Undertaking Letter
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THIS TRUST AGREEMENT, dated as of _____________, 20__, between WHOLESALE
AUTO RECEIVABLES LLC, a Delaware limited liability company, as Depositor, and
HSBC BANK USA, NATIONAL ASSOCIATION, as Owner Trustee.
In consideration of the premises and the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in Part I of Appendix A to
the Trust Sale and Servicing Agreement of even date herewith, among the
Depositor, the Servicer and the Trust (the "Trust Sale and Servicing
Agreement"). All references herein to "the Agreement" or "this Agreement" are to
the Trust Agreement as it may be amended and supplemented from time to time, and
all references herein to Articles, Sections and subsections are to Articles,
Sections and subsections of this Agreement unless otherwise specified. The rules
of construction set forth in Part II of such Appendix shall be applicable to
this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "SWIFT Master
Auto Receivables Trust" in which name the Owner Trustee may conduct the business
of the Trust, make and execute contracts and other instruments on behalf of the
Trust and ▇▇▇ and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address in Delaware as
the Owner Trustee may designate by written notice to the Certificate Owners and
the Depositor.
SECTION 2.3 Purposes and Powers
(a) The purpose of the Trust is, and the Trust shall have the power and
authority, to engage in the following activities:
(i) to acquire, manage and hold the Receivables and Other Assets to be
transferred to the Trust from time to time pursuant to the Trust Sale and
Servicing Agreement;
(ii) to issue and sell the Notes pursuant to the Indenture and the
related Indenture Supplement or pursuant to another indenture, note
purchase agreement or similar agreement and the Certificate pursuant to
this Agreement, and to sell, transfer or exchange the Notes and the
Certificate;
(iii) to acquire property and assets from the Depositor pursuant to
the Trust Sale and Servicing Agreement, to make payments or distributions
on the Securities, to
make withdrawals from the accounts established pursuant to the Basic
Documents and to pay the organizational, start-up and transactional
expenses of the Trust;
(iv) to establish, acquire, hold and terminate liquidity, credit and
other enhancement arrangements, including any Series Enhancement Agreement
existing from time to time, and perform its obligations thereunder;
(v) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificateholder pursuant to the terms of this
Agreement, the Trust Sale and Servicing Agreement, the Indenture
Supplements and any portion of the Trust Estate released from the lien of,
and remitted to the Trust pursuant to, the Indenture;
(vi) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Securityholders.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust to have all the rights, powers and duties
set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
Depositor sold, assigned, transferred, conveyed and set over to the Owner
Trustee, as of ________, 20__, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of such date, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Depositor
shall pay organizational expenses of the Trust as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that it
shall hold the Owner Trust Estate in trust upon and subject to the conditions
and obligations set forth herein, in the Trust Sale and Servicing Agreement and
in the Indenture for the use and benefit of the Certificateholder, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a statutory trust under the
Statutory Trust Statute, that this Agreement constitute the governing instrument
of such statutory trust and that the Certificate represent the equity interests
therein. The rights of the Certificateholder shall be determined as set forth
herein and in the Statutory Trust Statute and the relationship between the
parties created by this Agreement shall not constitute indebtedness. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth in this Agreement, the
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Trust Sale and Servicing Agreement, the Indenture and the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust. The Owner
Trustee has filed the certificate required under Section 3810 et seq. of the
Statutory Trust Statute in connection with the formation of the Trust as a
statutory trust under the Statutory Trust Statute.
SECTION 2.7 Liability of the Certificateholder. The Certificateholder and
holders of beneficial interests in the Certificate shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or New York, payments
and distributions shall be made by the Trust only from Delaware or New York. The
only office of the Trust shall be the Corporate Trust Office in Delaware.
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 an
entity in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are presently owned and such business is presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Receivables contemplated to be transferred to the Trust pursuant to the
Trust Sale and Servicing Agreement.
(b) The Depositor is duly qualified to do business and, where necessary is
in good standing (or is exempt from such requirement), and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such qualifications,
except where the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its obligations under
the Basic Documents to which it is a party.
(c) The Depositor has the power and authority to execute and deliver this
Agreement, to carry out its terms and to consummate the transactions
contemplated herein; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by the Depositor by all necessary corporate action.
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(d) The execution of this Agreement and the consummation of the
transactions contemplated herein by the Depositor and the fulfillment of the
terms of this Agreement by the Depositor shall not conflict with, result in any
breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under, the certificate of formation or the
limited liability company agreement of the Depositor, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Depositor is
a party or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than pursuant to
the Basic Documents), or violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
Governmental Authority having jurisdiction over the Depositor or any of its
properties.
SECTION 2.11 Tax Treatment. The Depositor and the Owner Trustee, by
entering into this Agreement, and the Certificateholder, by acquiring the
Certificate, (i) express their intention that the Certificate will qualify as an
equity interest in either (A) if the Trust is beneficially-owned solely by a
single Person, a division of such single Person, disregarded as a separate
entity for federal income tax purposes, or (B) a partnership for applicable
income tax purposes and (ii) unless otherwise required by the appropriate taxing
authorities, agree to treat the Certificate as an equity interest in an entity
as described in clause (i) of this Section 2.11 for the purposes of federal
income taxes, state and local income and franchise taxes, Michigan single
business tax, and any other taxes imposed upon, measured by, or based upon gross
or net income. The parties agree that, unless otherwise required by appropriate
tax authorities, the Trust shall file or cause to be filed annual or other
necessary returns, reports and other forms consistent with such characterization
of the Trust for such tax purposes. As long as the Depositor is the sole owner
of the Certificate, the Depositor and Owner Trustee agree that Section 5.5 of
this Agreement will not be applicable.
ARTICLE III
THE CERTIFICATE
SECTION 3.1 [Intentionally Omitted]
SECTION 3.2 Form of the Certificate
(a) The Certificate shall represent the entire beneficial interest in the
Trust. The Certificate shall be executed on behalf of the Trust by manual or
facsimile signature of a Responsible Officer of the Owner Trustee. Provided the
Certificate bears the manual or facsimile signatures of individuals who were, at
the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, the Certificate shall be a duly issued, fully paid and
non-assessable beneficial interest in the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of the Certificate or did not hold such offices at
the date of authentication and delivery of the Certificate.
(b) The Definitive Certificates, if and when issued in accordance with the
terms applicable to the relevant class of Certificates, shall be typewritten,
printed, lithographed or engraved or produced by any combination of these
methods (with or without steel engraved
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borders) all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
(c) The Certificate shall be issued in fully-registered form and will be
substantially in the form set forth in Exhibit B. The terms of the Certificate
as set forth in Exhibit B shall form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery
(a) On the Initial Closing Date, concurrently with the initial sale,
transfer and assignment of Receivables to the Trust pursuant to the Trust Sale
and Servicing Agreement, the Owner Trustee shall cause a Certificate
representing the entire beneficial interest in the Trust to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Depositor.
(b) The Certificate shall neither entitle its holder to any benefit under
this Agreement, nor be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit B, executed by the Owner Trustee or the Owner Trustee's
authenticating agent, by manual signature. Such authentication shall constitute
conclusive evidence that the Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication. [Authenticating Agent] is hereby appointed as the Owner
Trustee's authenticating agent.
SECTION 3.4 Registration; Registration of Transfer and Exchange of the
Certificate
(a) The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of the Certificate and of transfers and
exchanges of the Certificate as provided herein. [Certificate Registrar] shall
be the initial Certificate Registrar. Upon any resignation of a Certificate
Registrar, the Owner Trustee shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of Certificate Registrar.
(b) Upon surrender for registration of transfer of the Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute on behalf of the Trust, authenticate and deliver (or shall cause
[Authenticating Agent], as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, the new Certificate dated
the date of authentication by the Owner Trustee or any authenticating agent.
(c) At the option of a Holder, the Certificate may be exchanged for another
Certificate of a like aggregate percentage interest upon surrender of the
Certificate to be exchanged at the Corporate Trust Office maintained pursuant to
Section 3.8. Whenever any Certificate is so surrendered for exchange, the Owner
Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall
cause [Authenticating Agent], as its authenticating agent to authenticate and
deliver) one Certificate dated the date of authentication by the Owner Trustee
or any authenticating agent. Such Certificate shall be delivered to the Holder
making the exchange.
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(d) If presented or surrendered for registration of transfer or exchange,
the Certificate shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing and such other documents
and instruments as may be required by this Section 3.4. If surrendered for
registration of transfer or exchange, the Certificate shall be canceled and
subsequently destroyed by the Owner Trustee or Certificate Registrar in
accordance with its customary practice. The Owner Trustee shall certify to the
Depositor that the surrendered Certificate has been duly canceled and retained
or destroyed, as the case may be.
(e) No service charge shall be made for any registration of transfer or
exchange of the Certificate, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of the
Certificate.
(f) The Certificate (or interests therein) may not be acquired by or for
the account of a Benefit Plan. By accepting and holding a Certificate (or
interest therein), the Holder thereof and any related Certificate Owner shall
each be deemed to have represented and warranted that it is not, nor is it
acquiring the Certificate for the account of, (i) a Benefit Plan or (ii) an
employee benefit plan or plan that is not subject to the provisions of Title I
of ERISA or Section 4975 of the Code (including, without limitation, foreign or
governmental plans) if such acquisition would result in a non-exempt prohibited
transaction under, or a violation of, any applicable law that is substantially
similar to ERISA or Section 4975 of the Code. If requested to do so by the
Depositor pursuant to Section 3.4(b), the Certificateholder shall execute and
deliver to the Owner Trustee an Undertaking Letter in the form set forth on
Exhibit C to this Trust Agreement.
(g) The Certificate will not be registered under the Securities Act or the
securities or blue sky laws of any other jurisdiction. Consequently, the
Certificate is not transferable other than pursuant to an exemption from the
registration requirements of the Securities Act and satisfaction of certain
other provisions specified herein. No sale, pledge or other transfer of the
Certificate (or interest therein) may be made by any Person unless either (i)
such sale, pledge or other transfer is made to the Depositor, (ii) so long as
the Certificate is eligible for resale pursuant to Rule 144A under the
Securities Act, such sale, pledge or other transfer is made to a person whom the
transferor reasonably believes after due inquiry is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act (a "Qualified
Institutional Buyer") acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are Qualified
Institutional Buyers) to whom notice is given that the sale, pledge or transfer
is being made in reliance on Rule 144A under the Securities Act, or (iii) such
sale, pledge or other transfer is otherwise made in a transaction exempt from
the registration requirements of the Securities Act, in which case (A) the Owner
Trustee shall require that both the prospective transferor and the prospective
transferee certify to the Owner Trustee and the Depositor in writing the facts
surrounding such transfer, which certification shall be in form and substance
satisfactory to the Owner Trustee and the Depositor, and (B) the Owner Trustee
shall require a written opinion of counsel (which will not be at the expense of
the Depositor or the Owner Trustee) satisfactory to the Depositor and the Owner
Trustee to the effect that such transfer will not violate the Securities Act.
Neither the Depositor nor the Owner Trustee shall be obligated to register the
Certificate under the Securities Act, qualify the Certificate under the
securities laws of any state or provide registration rights to any purchaser or
holder thereof.
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(h) No sale, pledge or other transfer of the Certificate (or interest
therein) may be made by any Person unless the Certificateholder provides to the
Owner Trustee, the Indenture Trustee and the Depositor an opinion of independent
counsel reasonably acceptable to the Depositor that such action will not cause
the Trust to be treated as an association (or publicly traded partnership)
taxable as a corporation for federal income tax purposes, and such transferee or
assignee agrees to take positions for tax purposes consistent with the tax
positions agreed to be taken by the Certificateholder. In addition, the
Certificate may not be subdivided upon transfer or exchange and any attempted
transfer (or subdivision) of a Certificate in contravention of this restriction
shall be void ab initio and the purported transferor shall continue to be
treated as the owner of the Certificate for all purposes.
(i) Each Certificate shall bear a legend to the effect set forth in
subsections (f), (g) and (h) above.
(j) The Depositor shall be responsible for determining compliance with the
restrictions set forth in this Section 3.4.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificate
(a) If (i) a mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of a Certificate and (ii) there is delivered to
the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a protected purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver (or shall cause [Authenticating Agent], as its authenticating agent, to
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a replacement Certificate in a like
aggregate percentage interest; provided, however, that if any such destroyed,
lost or stolen Certificate, but not a mutilated Certificate, shall have become
or within seven days shall be payable, then instead of issuing a replacement
Certificate the Owner Trustee may make distributions on such destroyed, lost or
stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or distribution in
respect of a destroyed, lost or stolen Certificate pursuant to subsection
3.5(a), a protected purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment or distribution such
original Certificate, the Owner Trustee shall be entitled to recover such
replacement Certificate (and any distributions or payments made with respect
thereto) from the Person to whom it 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 Owner Trustee in
connection therewith.
(c) In connection with the issuance of any replacement Certificate under
this Section 3.5, the Owner Trustee may require the payment by the Holder of
such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto
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and any other reasonable expenses (including the fees and expenses of the Owner
Trustee and the Certificate Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional beneficial interest in the Trust, whether or
not the mutilated, destroyed, lost or stolen Certificate shall be found at any
time or be enforced by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any Certificate duly issued
hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of a mutilated, destroyed, lost or stolen Certificate.
SECTION 3.6 Persons Deemed Certificateholder. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee or the Certificate
Registrar may treat the Person in whose name a Certificate shall be registered
in the Certificate Register as the Certificateholder of such Certificate for the
purpose of receiving distributions pursuant to Article V and for all other
purposes whatsoever, and neither the Owner Trustee nor the Certificate Registrar
shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholder's Name and Address. The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, within 15 days after receipt by the Owner Trustee of a request
therefor from the Servicer or the Depositor in writing, a list, in such form as
the Servicer or the Depositor may reasonably require, of the name and address of
the Certificateholder as of the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Servicer, the Depositor or the Owner Trustee accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in the City of New York an office or offices or agency or agencies
where the Certificate may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificate and the Basic Documents may be served. The Owner Trustee
initially designates the offices of HSBC Bank USA, National Association, at ▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as its principal office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor and to the Certificateholder of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholder from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee and the Servicer; provided that no such reports shall be
required so long as the Depositor is the sole Certificateholder. Any Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. 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
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in any material respect. The Paying Agent shall initially be the Owner Trustee.
If the Owner Trustee shall no longer be the Paying Agent, the Paying Agent shall
be permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee, and the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent shall hold all sums, if any, held by it for distribution to the
Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. 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. The provisions of Sections 6.3, 6.6, 6.7 and 6.9 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10 Certificate Issued to Depositor. On and after the Initial
Closing Date, the Depositor initially shall retain beneficial and record
ownership of a Certificate representing 100% of the beneficial interest in the
Trust until the Depositor transfers such Certificate in accordance with the
Basic Documents.
SECTION 3.11 Depositor as Certificateholder. The Depositor in its
individual or any other capacity may become the owner or pledgee of the
Certificate and may otherwise deal with the Owner Trustee or its Affiliates as
if it were not the Depositor.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholder with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholder
in writing of the proposed action at least 30 days (or such lesser period as to
which the Certificateholder shall consent) before the taking of such action, and
(ii) the Certificateholder shall not have notified the Owner Trustee in writing
prior to the end of such period that such Certificateholder have withheld
consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on a Receivable or an action by the Indenture Trustee pursuant
to the Indenture) and the compromise of any action, claim or lawsuit brought by
or against the Trust (other than an action to collect on a Receivable or an
action by the Indenture Trustee pursuant to the Indenture);
(b) the election by the Trust to file an amendment to the Certificate of
Trust, a conformed copy of which is attached hereto as Exhibit A, unless such
amendment is required to be filed under the Statutory Trust Statute;
9
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder
taken as a whole;
(e) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of the
Certificateholder taken as a whole; 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
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholder with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the Certificateholder, to (a) remove the Administrator under the Administration
Agreement pursuant to Section 10 thereof, (b) appoint a successor Administrator
pursuant to Section 10 of the Administration Agreement, (c) remove the Servicer
under the Trust Sale and Servicing Agreement pursuant to Section 8.2 thereof or
(d) except as expressly provided in the Basic Documents, sell the Receivables
transferred to the Trust pursuant to the Trust Sale and Servicing Agreement or
any interest therein after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon the
affirmative vote of, or a written consent signed by, the holders of a majority
of the Voting Interests upon at least 30 days (or such shorter period as shall
be consented to by the Certificateholder) prior notice thereof.
SECTION 4.3 Action by Certificateholder with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary case under the
Bankruptcy Code or any successor provision relating to the Trust without the
prior approval of the Certificateholder (including the Depositor) and the
delivery to the Owner Trustee by such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent. By its acceptance of the Certificate issued to it on any Closing
Date, the Depositor agrees that it, at any time that it is the holder thereof,
shall not approve or be deemed to have approved the commencement of any such
voluntary case relating to the Trust for purposes of this Section 4.3 unless
such commencement is approved by the affirmative vote of all of the members of
the Depositor's board of directors.
SECTION 4.4 Restrictions on Certificateholder's Power. The
Certificateholder 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 Trust or the Owner Trustee under this Agreement or any of the other Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this
10
Agreement shall be effective if such action is taken or such consent is given or
withheld by the Holders of Certificates evidencing not less than a majority of
the Voting Interests thereof. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Holders of Certificates evidencing not less than a
majority of the Voting Interests at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account
(a) The Servicer, for the benefit of the Certificateholder, shall establish
and maintain in the name of the Owner Trustee an Eligible Deposit Account known
as the SWIFT Master Auto Receivables Trust Certificate Distribution Account (the
"Certificate Distribution Account"), bearing an additional designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholder. The Certificate Distribution Account shall initially be
established with Owner Trustee.
(b) The Owner Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and in all proceeds thereof (except Investment Proceeds therefrom as set forth
in the Indenture and the Indenture Supplements) for the benefit of the
Certificateholder. Except as otherwise provided herein or in the Indenture and
Indenture Supplements, the Certificate Distribution Account shall be under the
sole dominion and control of the Owner Trustee for the benefit of the
Certificateholder. If, at any time, the Certificate Distribution Account ceases
to be an Eligible Deposit Account, the Owner Trustee (or the Servicer on behalf
of the Owner Trustee, if the Certificate Distribution Account is not then held
by the Owner Trustee or an Affiliate thereof) shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Certificate Distribution Account as an
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new Certificate Distribution Account.
(c) All amounts held in the Certificate Distribution Account shall, to the
extent permitted by applicable laws, rules and regulations, be invested, at the
written direction of the Servicer in Eligible Investments (in the name of the
Owner Trustee or its nominee). Such written direction shall constitute
certification by the Servicer (or such other Person) that any such investment is
authorized by this Section 5.1. In the absence of such direction all amounts in
the Certificate Distribution Account shall be invested in Federated Prime
Obligations Fund Number 396, provided that such fund is an Eligible Investment.
SECTION 5.2 Application of Trust Funds
(a) On each Business Day, based upon the information contained in the
Servicer's Accounting for such Business Day, the Owner Trustee (or the Paying
Agent on its behalf) shall distribute to the Certificateholder, the amounts
deposited in the Certificate Distribution Account that are allocable and
available on such Business Day with respect to such Certificate.
(b) On each Business Day, the Owner Trustee (or the Paying Agent on its
behalf) shall include with each distribution to the Certificateholder the
statement provided to the Owner
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Trustee (or the Paying Agent on its behalf) by the Servicer for such Certificate
in respect of such Business Day setting forth, among other things, the amount of
the payments allocable to the Certificate after giving effect to such
distribution, and the Monthly Servicing Fee with respect to the Distribution
Date or the related Collection Period, as applicable, each since the last
statement so provided to such Certificateholder; provided that no such statement
shall be required to be sent by the Owner Trustee so long as the Depositor is
the sole Certificateholder.
(i) The "Monthly Servicing Fee" means for the Certificateholder, with
respect to any Distribution Date, an amount equal to one-twelfth of the
product of (a) 1% (or such lesser percentage as may be specified by the
Servicer in an Officer's Certificate delivered to the Owner Trustee
stating, that in the reasonable belief of the Servicer, such change in
percentage will not result in an Adverse Effect) (such percentage, the
"Servicing Fee Rate"), and (b) the Certificate Amount as of the close of
business on the last day of the immediately preceding Collection Period;
provided, however, that with respect to the first Distribution Date, the
Monthly Servicing Fee will equal the product of (a) [__]/360 of the
Servicing Fee Rate and (b) the Certificate Amount as of the Initial Cut-Off
Date.
(c) If any withholding tax is imposed on the Trust's distribution (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2; provided that the Owner Trustee (or the Paying Agent on its behalf) shall
not have an obligation to withhold any such amount so long as the Depositor is
the sole Certificateholder. The Owner Trustee (or the Paying Agent on its
behalf) is hereby authorized and directed to retain from amounts otherwise
distributable to the Certificateholder sufficient funds for the payment of any
tax that is legally owed by the Trust (but such authorization shall not prevent
the Owner Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable with
respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee (or the Paying Agent on its behalf) may in
its sole discretion withhold such amounts in accordance with this subsection
5.2(c). If a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder agrees
to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the Trust
pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit on behalf of the
Trust an Issuing Entity Order to the Indenture Trustee pursuant to Section
3.3(e) of the Indenture instructing the Indenture Trustee to pay such funds to
or at the order of the Depositor.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c), distributions
required to be made to the Certificateholder on any Business Day shall be made
to the Certificateholder of record on the related Record Date either by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if such
12
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Record Date, or,
if not, by check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
SECTION 5.4 Accounting and Reports to the Certificateholder, the Internal
Revenue Service and Others. The Administrator shall maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, deliver to each Certificateholder, as may be required by
the Code and applicable Treasury Regulations or otherwise, such information as
may be required to enable each Certificateholder to prepare its federal income
tax return, file such tax returns relating to the Trust and make such elections
as may from time to time be required or appropriate under any applicable state
or federal statute or rule or regulation thereunder so as to maintain the
Trust's characterization in accordance with Section 2.11 for applicable income
tax purposes, cause such tax returns to be signed in the manner required by law
and collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.2(c) with respect to income or distributions to the
Certificateholder. Unless otherwise permitted or required by any applicable law
or regulation, the Administrator shall allocate amounts of taxable income of the
Trust for a particular Collection Period to the Certificateholder according to
the interest owned by it as of the Record Date for the related Distribution
Date.
SECTION 5.5 Signature on Returns; Tax Matters Partner. Subject to Section
2.11, the Administrator shall sign on behalf of the Trust any and all tax
returns of the Trust, unless applicable law requires a Certificateholder to sign
such documents, in which case such documents shall be signed by the Depositor.
The Depositor shall be the "tax matters partner" of the Trust pursuant to the
Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the other Basic
Documents, including the administration of the Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with the
provisions of this Agreement. No implied covenants or obligations shall be read
into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have 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
hereunder or under any other Basic Document, and the Owner Trustee shall not be
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions
13
contained therein; provided, however, that the Owner Trustee shall have examined
such certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection
6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Owner Trustee was negligent in ascertaining the pertinent facts;
(iii) the Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.1, 4.2 or 6.4; and
(iv) in no event shall the Owner Trustee be liable for any damages in
the name of special, indirect or consequential damages, however styled,
including lost profits.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law or the Trust Sale and Servicing Agreement and the Indenture 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.
(f) The Owner Trustee shall not take any action that (i) is inconsistent
with the purposes of the Trust set forth in Section 2.3 or (ii) would, to the
actual knowledge of a Responsible Officer of the Owner Trustee, result in the
Trust's becoming taxable as a corporation for federal income tax purposes.
(g) The Certificateholder shall not direct the Owner Trustee to take action
that would violate the provisions of this Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Depositor shall approve
as evidenced conclusively by the Owner Trustee's execution thereof. In addition
to the foregoing, the Owner Trustee is authorized, but shall not be obligated,
to take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Administrator recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, HSBC Bank USA,
National Association acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties
14
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of the other Basic
Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any other Basic Document under any circumstances,
except (i) for its own negligent action, its own negligent failure to act or its
own willful misconduct or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.6 and expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) 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 held by the Trust, or the perfection and priority of any security
interest created by any such Receivable in any 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 distributions and payments to
be made to Certificateholder under this Agreement or to Noteholders under the
Indenture, including: the existence and contents of any such Receivable on any
computer or other record thereof; the validity of the assignment of any such
Receivable to the Trust or of any intervening assignment; the completeness of
any such Receivable; the performance or enforcement of any such Receivable; the
compliance by the Depositor or the Servicer with any warranty or representation
made under any Basic Document or in any related document or the accuracy of any
such warranty or representation or any action of the Administrator, the Trustee
or the Servicer or any subservicer taken in the name of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or any Certificateholder;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Basic Document, if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the payments with respect to the
Certificate;
(e) the Owner Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision 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 Notes, the
Certificate (other than the certificate of authentication on the Certificate),
the other Basic Documents, or of any Receivables held by the Trust or any
related documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein and in the other Basic Documents;
15
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Indenture Trustee, the Depositor or the Servicer under
any of the Basic Documents or otherwise and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under this
Agreement or the Basic Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee under
the Indenture or the Servicer under the Pooling and Servicing Agreement or the
Trust Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of the
Certificateholder, unless such Certificateholder has 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 Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 6.4 Action upon Instruction by the Certificateholder
(a) Subject to Section 4.4, the Certificateholder may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholder pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under 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 hereof or of any other Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, or is unsure as to the application, intent, interpretation
or meaning of any provision of this Agreement or the other Basic Documents, the
Owner Trustee shall promptly give notice (in such form as shall be appropriate
under the circumstances) to the Certificateholder 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 such instruction 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 instructions 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 which is consistent,
in its view, with this Agreement or the other Basic Documents, and as it shall
deem to be in the best interests of the Certificateholder and the Owner Trustee
shall have no liability to any Person for any such action or inaction.
(d) Notwithstanding any Person's right to instruct the Owner Trustee,
except as set forth in Section 10.2, neither the Owner Trustee nor any agent,
employee, director or officer of
16
the Owner Trustee shall have any obligation to execute any certificates or other
documents required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the rules and
regulations promulgated thereunder, and the refusal to comply with any such
instructions shall not constitute a default or breach under any Basic Document.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish (a) to
the Certificateholder, 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 and (b) to the Noteholders and the Certificateholder,
promptly upon receipt of a written request therefor, copies of the Pooling and
Servicing Agreement, the Trust Sale and Servicing Agreement, the Administration
Agreement, the Custodian Agreement, the Indenture and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Certificateholder, that:
(a) It is a national banking association duly organized, validly existing
and in good standing under the laws of the United States of America.
(b) It has full power, authority and legal right to execute, deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement. The eligibility
requirements set forth in Section 6.13 are satisfied with respect to it.
(c) The execution, delivery and performance by it of this Agreement (i)
shall not violate any provision of any law or regulation governing the banking
and trust powers of the Owner Trustee or any order, writ, judgment or decree of
any court, arbitrator or governmental authority applicable to the Owner Trustee
or any of its assets, (ii) shall not violate any provision of the corporate
charter or by-laws of the Owner Trustee or (iii) shall not violate any provision
of, or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of any lien on any properties included in
the Trust pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation, default
or lien could reasonably be expected to have a materially adverse effect on the
Owner Trustee's performance or ability to perform its duties as Owner Trustee
under this Agreement or on the transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of this
Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any Governmental Authority regulating the banking and
corporate trust activities of banks or trust companies in the jurisdiction in
which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and
17
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper 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. 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 the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees 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, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants and other
skilled professionals 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 opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
other Basic Document.
SECTION 6.8 Owner Trustee May Own Certificate and Notes. The Owner Trustee
in its individual or any other capacity may become the owner or pledgee of the
Certificate or Notes and may deal with the Depositor, the Administrator, the
Indenture Trustee and the Servicer in transactions in the same manner as it
would have if it were not the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. 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 Depositor and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Servicer for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee and its successors, assigns, agents and servants in accordance
with the provisions of Section 7.1 of the Trust Sale and Servicing Agreement.
The indemnities contained in this Section 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. Any
amounts paid to the Owner Trustee pursuant to this Article VI shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment.
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SECTION 6.10 Replacement of Owner Trustee
(a) The Owner Trustee may at any time give notice of its intent to resign
and be discharged from the trusts hereby created by giving written notice
thereof to the Administrator; provided that no such resignation shall become
effective, and the Owner Trustee shall not resign, prior to the time set forth
in Section 6.10(c). The Administrator may appoint a successor Owner Trustee by
delivering written instrument, in duplicate, to the resigning Owner Trustee and
the successor Owner Trustee. If no successor Owner Trustee shall have been
appointed and have accepted appointment within 30 days after the giving of such
notice, the resigning Owner Trustee giving such notice may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee. The
Administrator shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Administrator;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy exists in
the office of Owner Trustee for any reason the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate (one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee) and shall pay all fees owed to the
outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective, and no such resignation shall be deemed to have
occurred, until a written acceptance of appointment is delivered by the
successor Owner Trustee to the outgoing Owner Trustee and the Administrator, and
all fees and expenses due to the outgoing Owner Trustee are paid. Any successor
Owner Trustee appointed pursuant to this Section 6.10 shall be eligible to act
in such capacity in accordance with Section 6.13 and, following compliance with
the preceding sentence, 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 Administrator shall provide notice
of such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
(d) 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. 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.
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(e) Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 6.10, the Administrator shall mail notice of the successor of such
Owner Trustee to all Certificateholder, the Indenture Trustee, the Noteholders
and the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any Person into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Owner Trust Estate or any of the Dealers may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 6.12, 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
trustee pursuant to Section 6.13 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
20
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times satisfy the requirements of Section 26(a)(1) of the
Investment Company Act. The Owner Trustee shall at all times: (a) be a
corporation satisfying the provisions of Section 3807(a) of the Statutory Trust
Statute; (b) be authorized to exercise corporate trust powers; (c) have an
aggregate capital, surplus and undivided profits of at least $50,000,000 and be
subject to supervision or examination by federal or state authorities; and (d)
have (or have a parent which has) a long-term unsecured debt rating of at least
BBB- by Standard & Poor's, at least Baa3 by ▇▇▇▇▇'▇ and at least BBB- by Fitch,
if rated by Fitch. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 6.13,
the aggregate capital, surplus and undivided profits of such corporation shall
be deemed to be its aggregate capital, surplus and undivided profits 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 6.13, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 6.10.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement
(a) The Trust shall terminate in accordance with Section 3808 of the
Statutory Trust Statute on the date (the "Trust Termination Date") on which the
first of the following occurs: (i) if the Depositor so elects, the day following
the Distribution Date on which all amounts required to be paid to the
Securityholders pursuant to the Basic Documents have been paid (or deposited in
the related Distribution Account) and (ii) the Specified Trust Termination Date.
This
21
Agreement and the obligations of the parties hereunder (other than Section 6.9
hereof and as otherwise expressly provided herein) shall terminate and be of no
further force or effect (x) if the Trust Termination Date is determined pursuant
to clause (i) above, on the Trust Termination Date and (y) if the Trust
Termination Date is determined pursuant to clause (ii) above on the date
following the Distribution Date on which the final payments to be made to the
Securityholders pursuant to the Basic Documents have been paid (or deposited in
the appropriate Distribution Accounts).
(b) The bankruptcy, liquidation, dissolution, death or incapacity of the
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding-up of all or any part of the Trust or the Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto. Except as provided in Section 7.1(a), neither the Depositor nor
the Certificateholder shall be entitled to revoke or terminate the Trust or this
Agreement.
(c) Notice of any termination of the Trust specifying the Distribution Date
upon which the Certificateholder shall surrender its Certificate to the Paying
Agent for distribution of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to the Certificateholder mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to Section 9.4 of the Trust Sale and Servicing Agreement, stating: (i)
the Distribution Date upon or with respect to which the final distribution in
respect of the Certificate shall be made upon presentation and surrender of the
Certificate at the office of the Paying Agent therein designated; (ii) the
amount of any such final distributions; and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificate 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 the Certificateholder. Upon presentation and
surrender of the Certificate, the Paying Agent shall cause to be distributed to
the Certificateholder amounts distributable on such Distribution Date pursuant
to Section 5.2. The Depositor shall have the beneficial interest in any assets
remaining in the Trust following final payment of the Certificate.
(d) If the Certificateholder shall not surrender its Certificate for
cancellation within six months after the date specified in the written notice
specified in subsection 7.1(c), the Owner Trustee shall give a second written
notice to the Certificateholder to surrender its Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice the Certificate 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 Certificateholder concerning
surrender of its Certificate and the cost thereof shall be paid out of the funds
and other assets that shall remain subject to this Agreement. Subject to
applicable laws with respect to escheat of funds, any funds remaining in the
Trust after exhaustion of such remedies in the preceding sentence shall be
deemed property of the Depositor and distributed by the Owner Trustee to the
Depositor and the Owner Trustee shall have no further liability to the
Certificateholder with respect thereto.
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(e) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Statutory Trust Statute.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Securityholders. This Agreement
may be amended by the Depositor and the Owner Trustee without the consent of any
of the Securityholders (but with prior notice to the Rating Agencies) to:
(i) cure any ambiguity,
(ii) correct or supplement any provision in this Agreement that may be
defective or inconsistent with any other provision in this Agreement,
(iii) add or supplement any credit, liquidity or other enhancement
arrangement for the benefit of any Securityholders (provided that if any
such addition shall affect any series or class of Securityholders
differently than any other series or class of Securityholders, then such
addition shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any series or class of
Securityholders),
(iv) add to the covenants, restrictions or obligations of the
Depositor or the Owner Trustee for the benefit of the Securityholders,
(v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the Owner Trust Estate and add to or
change any provisions as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee pursuant to
Article VI,
(vi) restrict transfers of Certificate (or interests therein) or as
otherwise required to prevent the Trust from being treated as a "publicly
traded partnership" under Section 7704 of the Code,
(vii) to add provisions to or delete or modify the existing provisions
of this Agreement as appropriate to allow the Trust to issue foreign
currency-denominated Notes,
(viii) to add provisions to or delete or modify the existing
provisions of this Agreement as appropriate to allow the Trust to acquire
and issue securities backed by Other Assets, subject to satisfaction of the
Rating Agency Condition with respect thereto, or
(ix) add, change or eliminate any other provision of this Agreement in
any manner that shall not, as evidenced by an Opinion of Counsel,
materially and adversely affect the interests of the Securityholders.
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SECTION 8.2 Amendments With Consent of the Certificateholder and
Noteholders. This Agreement may be amended from time to time by the Depositor
and the Owner Trustee with the consent of Noteholders whose Notes evidence not
less than a majority of the Outstanding Amount of the Notes as of the close of
business on the preceding Distribution Date (unless, as evidenced by an Opinion
of Counsel, such amendment shall not materially and adversely affect the
interests of the Noteholders), and the consent of the Certificateholder (unless,
as evidenced by an Opinion of Counsel, such amendment shall not materially and
adversely affect the interests of the the Certificateholder) (which consent,
whether given pursuant to this Section 8.2 or pursuant to any other provision of
this Agreement, shall be conclusive and binding on such Person and on all future
Holders of such Notes, such Certificate and of any Notes or Certificate issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether or
not notation of such consent is made upon the Notes or Certificate for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders or the Certificateholder; provided, however, that no such
amendment shall
(i) change the due date of any instalment of principal of or interest on
any Security, or reduce the principal amount thereof, the interest rate
applicable thereto, or the Redemption Price with respect thereto, change any
place of payment where, or the coin or currency in which, any Security or any
distribution thereon is payable, or impair the right to institute suit as
provided in Article V of the Indenture for the enforcement of the provisions of
the Indenture requiring the application of funds available therefor to the
payment of any such amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption Date) (it
being understood that the issuance of any Notes after the Initial Closing Date
as contemplated by the Trust Sale and Servicing Agreement and the Indenture and
the specification of the terms and provisions thereof pursuant to an Indenture
Supplement (with respect to any Notes) shall not be deemed to have such effect
for purposes hereof), without the consent of the holders of all of the affected
Securities,
(b) adversely effect the rating of any series or class of Securities
without the consent of the Holders of two-thirds of the Outstanding Amount of
such series of Notes or the Voting Interests with respect to the Certificate, as
appropriate or
(c) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Holders of all of the Notes and all of the
Voting Interests with respect to the Certificate then outstanding. Prior to the
execution of any such amendment, supplement or consent, the Owner Trustee shall
furnish written notification of the substance of such amendment, supplement or
consent to the Rating Agencies.
SECTION 8.3 [Reserved].
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SECTION 8.4 Form of Amendments
(a) Promptly after the execution of any amendment, supplement or consent
pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Securityholders or the
Indenture Trustee pursuant to Section 8.2 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 Securityholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof by
Securityholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The Certificateholder
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholder shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholder to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section 2.7,
Section 7.1(c) and Section 9.13, the provisions of this Agreement are solely for
the benefit of the Owner Trustee, the Depositor, the Certificateholder, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 9.3 Derivative Actions. Any provision contained herein to the
contrary notwithstanding, the right of the Certificateholder to bring a
derivative action in the right of the Trust is hereby made expressly subject to
such Certificateholder meeting all requirements set forth in the Statutory Trust
Statute.
SECTION 9.4 Notices
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(a) All demands, notices and communications upon or to the Depositor, the
Servicer, the Administrator, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be delivered as specified in Appendix
B to the Trust Sale and Servicing Agreement.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 9.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed enforceable to the fullest extent permitted, and if not so
permitted, shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificate
or the rights of the Holders thereof.
SECTION 9.6 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 9.7 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Depositor, the
Owner Trustee and 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.
SECTION 9.8 No Petition Covenants. The Owner Trustee by entering this Trust
Agreement, and each Certificateholder by accepting a Certificate (or interest
therein) issued hereunder, hereby covenants and agrees that it shall not (nor
shall it join with or solicit another person to), prior to the day that is one
year and one day after the termination of the Trust and with respect to the
Depositor, of each other such trust formed by the Depositor, acquiesce, petition
or otherwise invoke or cause the Depositor or the Trust to invoke in any court
or government authority for the purpose of commencing or sustaining a case
against the Depositor or the Trust under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor or
the Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Depositor or the Trust.
SECTION 9.9 No Recourse. Each Certificateholder, by accepting a Certificate
(or interest therein) shall agree that such Person's Certificate (or interest
therein) represent beneficial interests in the Trust only and do not represent
interests in or obligations of the Depositor, the Servicer, the Administrator,
the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no
recourse, either directly or indirectly, may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificate or the
26
other Basic Documents. Except as expressly provided in the Basic Documents,
neither the Depositor, the Servicer nor the Owner Trustee in their respective
individual capacities, nor any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns, shall be
personally liable for, nor shall recourse be had to any of them for, the
distribution of any amount with respect to, or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in the
Certificate or this Agreement, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Trust. Each Certificateholder
by the acceptance of a Certificate (or beneficial interest therein) shall agree
that, except as expressly provided in the Basic Documents, in the case of
nonpayment of any amounts with respect to the Certificate, it shall have no
claim against any of the foregoing for any deficiency, loss or claim therefrom.
In the event that any of the foregoing covenants of each Certificateholder is
prohibited by, or declared illegal or otherwise unenforceable against any such
Certificateholder under applicable law by any court or other authority of
competent jurisdiction, and, as a result, a Certificateholder is deemed to have
an interest in any assets of the Depositor or any Affiliate of the Depositor
other than the Trust ("other assets"), each Certificateholder agrees that (i)
its claim against any such other assets shall be, and hereby is, subject and
subordinate in all respects to the rights of other Persons to whom rights in the
other assets have been expressly granted ("entitled Persons"), including to the
payment in full of all amounts owing to such entitled Persons, and (ii) the
covenant set forth in the preceding clause (i) constitutes a "subordination
agreement" within the meaning of, and subject to, Section 510(a) of the
Bankruptcy Code.
SECTION 9.10 Headings. The headings herein are for purposes of reference
only and shall not affect the meaning or interpretation of any provision hereof.
SECTION 9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO THE CONFLICT OF LAW PROVISIONS THEREOF OR OF ANY OTHER
JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.12 [Reserved].
SECTION 9.13 Indemnification by and Reimbursement of the Servicer. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with Section 7.3(b) of
the Trust Sale and Servicing Agreement and (ii) the Depositor and its directors,
officers, employees and agents in accordance with Section 3.4 of the Trust Sale
and Servicing Agreement. The Owner Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Owner Trustee harmless as set forth in Section
7.1(a) of the Trust Sale and Servicing Agreement.
27
ARTICLE X
COMPLIANCE WITH REGULATION AB
SECTION 10.1 Intent of the Parties; Reasonableness. The Depositor and the
Owner Trustee acknowledge and agree that the purpose of this Article X is to
facilitate compliance by the Depositor with the provisions of Regulation AB and
the 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 the Depositor and shall
deliver (and cause each of its Reporting Subcontractors, if any, to deliver) to
the Depositor any information reasonably requested by the Depositor regarding
the Owner Trustee which is required in order to enable the Depositor to comply
with the provisions of Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB or
any of its other Exchange Act reporting obligations as it relates to the Owner
Trustee or to the Owner Trustee's obligations under this Agreement (including
with respect to any of its successors or predecessors; provided, however, that
this parenthetical shall apply only to the successors or predecessors of the
Owner Trustee contemplated by Section 6.11 hereof). The obligations of the Owner
Trustee to provide such information shall survive the removal or termination of
the Owner Trustee hereunder.
SECTION 10.2 Information to be Provided by the Owner Trustee. The Owner
Trustee shall as promptly as practicable following notice to or discovery by the
Owner Trustee of any information required to be disclosed and not previously
disclosed, and updates of information required to be disclosed, provide to the
Depositor, in writing, updated information necessary for compliance with Item
1117 of Regulation AB. The Owner Trustee shall, as promptly as practicable
following notice to or discovery by the Owner Trustee, provide to the Depositor,
in writing, any information required to be disclosed and not previously
disclosed, and updates of information required to be disclosed, necessary for
compliance with Items 1109(a), 1109(b) and 1119 of Regulation AB.
*****
28
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
HSBC BANK USA, NATIONAL ASSOCIATION,
as Owner Trustee
By:
------------------------------------
Name: [ ]
--------------------------------
Title: [ ]
-------------------------------
WHOLESALE AUTO RECEIVABLES LLC,
as Depositor
By:
------------------------------------
Name: [ ]
--------------------------------
Title: [ ]
-------------------------------
EXHIBIT A
CERTIFICATE OF TRUST OF
SWIFT MASTER AUTO RECEIVABLES TRUST
THIS Certificate of Trust of SWIFT Master Auto Receivables Trust (the
"Trust"), dated as of _________, 20__, is being duly executed and filed by HSBC
BANK USA, NATIONAL ASSOCIATION, a national banking association, as trustee, to
form a statutory trust under the Delaware Statutory Trust Act (12 Del. C.
Section 3801 et seq.).
1. Name. The name of the statutory trust formed hereby is SWIFT Master
Auto Receivables Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is HSBC Bank USA, National Association, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on [_________, 20__].
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
HSBC Bank USA, National Association, not
in its individual capacity but solely as
Owner Trustee under a Trust Agreement
dated as of [__________, 20__].
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
[FORM OF CERTIFICATE]
No. R-________ _____________%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE UNITED STATES OF
AMERICA OR ANY FOREIGN SECURITIES LAWS.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE (OR INTEREST
HEREIN) MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE BY THE ISSUING ENTITY TO THE DEPOSITOR, (ii) SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON
WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS
GIVEN THAT THE SALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (iii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, IN WHICH CASE (A) THE OWNER TRUSTEE SHALL REQUIRE THAT BOTH
THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE
OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND THE DEPOSITOR, AND (B) THE OWNER TRUSTEE SHALL
REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF
THE DEPOSITOR OR THE OWNER TRUSTEE) SATISFACTORY TO THE DEPOSITOR AND THE
OWNER TRUSTEE TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
SECURITIES ACT.
THIS CERTIFICATE (OR AN INTEREST HEREIN) MAY NOT BE ACQUIRED BY OR FOR
THE ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE UNITED STATES EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA
(ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, OR (iii) ANY
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT
BY AN EMPLOYEE BENEFIT PLAN IN SUCH ENTITY. THIS CERTIFICATE (OR AN
INTEREST HEREIN) ALSO MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
EMPLOYEE BENEFIT PLAN OR PLAN THAT IS NOT SUBJECT TO THE PROVISIONS OF
TITLE I OF ERISA OR SECTION 4975 OF THE CODE (INCLUDING, WITHOUT
LIMITATION, FOREIGN OR GOVERNMENTAL PLANS) IF SUCH ACQUISITION WOULD
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER, OR A VIOLATION OF,
ANY APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO ERISA OR SECTION 4975
OF THE CODE. EACH HOLDER OF THIS CERTIFICATE, BY ACCEPTING THIS
CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
SUBJECT TO THE FOREGOING LIMITATIONS, AND, IF REQUESTED TO DO SO BY THE
DEPOSITOR, SUCH PERSON SHALL EXECUTE AND DELIVER TO THE OWNER TRUSTEE AN
UNDERTAKING LETTER TO SUCH EFFECT IN THE FORM SPECIFIED IN THE TRUST
AGREEMENT.
NO SALE, PLEDGE OR OTHER TRANSFER OF THE CERTIFICATE (OR INTEREST
THEREIN) MAY BE MADE BY ANY PERSON UNLESS THE CERTIFICATEHOLDER PROVIDES TO
THE OWNER TRUSTEE, THE INDENTURE TRUSTEE AND THE DEPOSITOR AN OPINION OF
INDEPENDENT COUNSEL REASONABLY ACCEPTABLE TO THE DEPOSITOR THAT SUCH ACTION
WILL NOT CAUSE THE TRUST TO BE TREATED AS AN ASSOCIATION (OR PUBLICLY
TRADED PARTNERSHIP) TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX
PURPOSES, AND SUCH TRANSFEREE OR ASSIGNEE AGREES TO TAKE POSITIONS FOR TAX
PURPOSES CONSISTENT WITH THE TAX POSITIONS AGREED TO BE TAKEN BY THE
CERTIFICATEHOLDER. IN ADDITION, THE CERTIFICATE MAY NOT BE SUBDIVIDED UPON
TRANSFER OR EXCHANGE AND ANY ATTEMPTED TRANSFER (OR SUBDIVISION) OF A
CERTIFICATE IN CONTRAVENTION OF THIS RESTRICTION SHALL BE VOID AB INITIO
AND THE PURPORTED TRANSFEROR SHALL CONTINUE TO BE TREATED AS THE OWNER OF
THE CERTIFICATE FOR ALL PURPOSES.
THE CERTIFICATEHOLDER, BY ITS ACCEPTANCE OF THIS CERTIFICATE (OR
INTEREST HEREIN), COVENANTS AND AGREES THAT SUCH CERTIFICATEHOLDER SHALL
NOT, PRIOR TO THE DATE WHICH IS ONE YEAR AND ONE DAY AFTER THE TERMINATION
OF THE TRUST AGREEMENT AND WITH RESPECT TO THE DEPOSITOR, OF EACH OTHER
SUCH TRUST FORMED BY THE DEPOSITOR, ACQUIESCE, PETITION OR OTHERWISE INVOKE
OR CAUSE THE DEPOSITOR TO INVOKE THE PROCESS OF ANY COURT OR
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GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF COMMENCING OR SUSTAINING A CASE
AGAINST THE DEPOSITOR UNDER ANY FEDERAL OR STATE BANKRUPTCY, INSOLVENCY,
REORGANIZATION OR SIMILAR LAW OR APPOINTING A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL OF THE
DEPOSITOR OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR ORDERING THE
WINDING-UP OR LIQUIDATION OF THE AFFAIRS OF THE DEPOSITOR.
SWIFT MASTER AUTO RECEIVABLES TRUST
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of wholesale auto receivables
generated from time to time in a portfolio of revolving financing
arrangements with dealers to finance automobile and other vehicle
inventories and collections thereon and certain other property.
(This Certificate does not represent an interest in or obligation of
Wholesale Auto Receivables LLC, GMAC LLC, General Motors Corporation, the
Owner Trustee or any of their respective affiliates, except to the extent
described in the Basic Documents.)
THIS CERTIFIES THAT __________ is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in SWIFT Master Auto Receivables Trust
(the "Trust") formed by Wholesale Auto Receivables LLC, a Delaware limited
liability company (the "Depositor").
The Trust was created pursuant to a Trust Agreement, dated as of _______,
20__ (as amended and supplemented from time to time, the "Trust Agreement"),
between the Depositor and HSBC Bank USA, National Association, as owner trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, the terms of which are incorporated
herein by reference and made a part hereof, to which Trust Agreement the Holder
of this Certificate by virtue of the acceptance hereof assents and by which such
holder is bound.
The Holder of this Certificate acknowledges and agrees that its rights to
receive payments in respect of this Certificate are subordinated to the rights
of the Noteholders as and to the extent described in the Trust Sale and
Servicing Agreement, the Indenture and the Indenture Supplements.
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The Certificateholder by accepting this Certificate (or interest therein)
issued hereunder, hereby covenants and agrees that it shall not (nor shall it
join with or solicit another person to), prior to the day that is one year and
one day after the termination of the Trust and with respect to the Depositor of
each other such trust formed by the Depositor, acquiesce, petition or otherwise
invoke or cause the Depositor or the Trust to invoke in any court or government
authority for the purpose of commencing or sustaining a case against the
Depositor or the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Depositor or the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Depositor or the Trust.
Distributions on this Certificate shall be made as provided in the Trust
Agreement without the presentation or surrender of this Certificate or the
making of any notation hereon, to the Certificateholder of record on the
immediately preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Holder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
to the Certificate Registrar appropriate written instructions at least five
Business Days prior to such Record Date, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate shall 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
maintained for such purpose by the Owner Trustee in the Borough of Manhattan,
the City of New York.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
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,
the Trust Sale and Servicing Agreement or the Indenture or be valid for any
purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO THE CONFLICT OF LAW
PROVISIONS THEREOF OR OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
Dated: ______, 20__
SWIFT MASTER AUTO RECEIVABLES TRUST
By: HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
HSBC BANK USA, NATIONAL OR HSBC BANK USA, NATIONAL ASSOCIATION,
ASSOCIATION, not in its individual not in its individual capacity but
capacity but solely as Owner Trustee solely as Owner Trustee by
[Authenticating Agent] as
Authentication Agent
By: By:
--------------------------------- ----------------------------------
Name: Name:
------------------------------- --------------------------------
Title: Title:
------------------------------ -------------------------------
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REVERSE OF CERTIFICATE
The Certificate does not represent an obligation of, or an interest in, the
Depositor, the Servicer, GMAC LLC, General Motors Corporation, the Indenture
Trustee, the Owner Trustee or any affiliates of any of them and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement or 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 and recoveries with respect to the Receivables held by the Trust
(and certain other amounts), all as more specifically set forth herein, in the
Trust Agreement and in the other Basic Documents. A copy of each of the Trust
Agreement and the other Basic Documents may be examined during normal business
hours at the principal office of the Depositor, and at such other places, if
any, designated by the Depositor, by the Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholder under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the
Noteholders whose Notes evidence not less than a majority of the Outstanding
Amount of the Notes as of the close of business on the preceding Distribution
Date and the consent of the Certificateholder. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Trust Agreement also permits
the amendment thereof, in certain circumstances, without the consent of the
Holders of any of the Certificate or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the City of New York, accompanied by (i) a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, (ii) any certificate and/or Opinion of
Counsel required by Sections 3.4(g) and (h) of the Trust Agreement, and (iii) if
requested by the Depositor, the Undertaking Letter required by Section 3.4(f) of
the Trust Agreement, and thereupon one new Certificate evidencing the same
aggregate percentage interest in the Trust shall be issued to the designated
transferee.
The initial Certificate Registrar appointed under the Trust Agreement is
HSBC Bank USA, New York, New York.
The Certificate (other than the Certificate issued to the Depositor or its
affiliates) is issuable only as a registered Certificate. As provided in the
Trust Agreement and subject to certain limitations therein set forth, the
Certificate is exchangeable for a new Certificate evidencing the same aggregate
percentage interest, as requested by the Holder surrendering the same; provided,
however, that the Certificate may not be subdivided upon transfer or exchange.
No service charge shall be made for any such registration of transfer or
exchange, but the Owner
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Trustee or the Certificate Registrar may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the distribution to the
Certificateholder of all amounts required to be paid to it pursuant to the Trust
Agreement, the Trust Sale and Servicing Agreement and the Indenture Supplements
and the disposition of all property held as part of the Trust.
8
CERTIFICATE OF TRANSFER
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE _________________________________________________________________
_____________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
---------------------------------------
*
Dated:
--------------- ---------------------------------------
Signature Guaranteed: *
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatsoever. Such signature
must be guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company.
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EXHIBIT C
INVESTOR LETTER
Wholesale Auto Receivables LLC
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HSBC BANK USA, NATIONAL ASSOCIATION
c/o [Authenticating Agent]
[Authenticating Agent address]
Ladies and Gentlemen:
In connection with our proposed purchase of a Certificate (the
"Certificate"), representing a fractional undivided interest in the SWIFT Master
Auto Receivables Trust, issued under a trust agreement, to be dated as of
_______, 20__ (the "Trust Agreement"), between Wholesale Auto Receivables LLC, a
Delaware limited liability company (the "Depositor") and HSBC Bank USA, National
Association, as owner trustee, acting thereunder not in its individual capacity
but solely as owner trustee of the Trust (the "Owner Trustee"), we confirm that:
1. We understand that the Certificate has not been registered under
the United States Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any jurisdiction and may not be sold
except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter
stated, that such Certificate (or an interest therein) may be resold,
pledged or transferred only (i) to the Depositor, (ii) so long as such
Certificate is eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person whom the transferor reasonably
believes after due inquiry to be a "qualified institutional buyer" as
defined in Rule 144A acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are
"qualified institutional buyers") to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (iii) in a
sale, pledge or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which case (A) the
Owner Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor in
writing the facts surrounding such transfer, which certification shall be
in form and substance satisfactory to the Owner Trustee and the Depositor,
and (B) the Owner Trustee shall require a written opinion of counsel (which
will not be at the expense of the Depositor or the Owner Trustee)
satisfactory to the Depositor and the Owner Trustee to the effect that such
transfer will not violate the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States. We
will notify any purchaser of the Certificate (or an interest therein) from
us of the above resale restrictions, if then
applicable. We further understand that in connection with any transfer of
the Certificate (or interest therein) by us that the Depositor and the
Owner Trustee may request, and if so requested we will furnish, such
certification and other information as they may reasonably require to
confirm that any such transfer complies with the foregoing restrictions. We
understand that no sale, pledge or other transfer may be made to any Person
unless the Certificateholder provides to the Owner Trustee, the Indenture
Trustee and the Depositor an opinion of independent counsel reasonably
acceptable to the Depositor that such action will not cause the Trust to be
treated as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes, and such transferee or
assignee agrees to take positions for tax purposes consistent with the tax
positions agreed to be taken by the Certificateholder. We further
understand that the Certificate may not be subdivided upon transfer or
exchange. Any attempted transfer or subdivision in contravention of this
restriction will be void ab initio and the purported transferor will
continue to be treated as the owner of the Certificate for all purposes. We
understand that no sale, pledge or other transfer of the Certificate may be
made to (i) an "employee benefit plan" (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is subject to the provisions of Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), (iii) any entity whose underlying assets include plan assets by
reason of investment by an employee benefit plan or plan in such entity or
(iv) an employee benefit plan or plan that is not subject to the provisions
of Title I of ERISA or Section 4975 of the Code (including, without
limitation, foreign or governmental plans) if such sale, pledge or other
transfer would result in a non-exempt prohibited transaction under, or a
violation of, any applicable law that is substantially similar to ERISA or
Section 4975 of the Code.
2. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
------------------------------------
Date:
----------------------------------
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