TRUST AGREEMENT
BETWEEN
WODFI LLC
TRANSFEROR
AND
CHASE MANHATTAN BANK DELAWARE
OWNER TRUSTEE
DATED AS OF NOVEMBER 22, 1999
TABLE OF CONTENTS
Page
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 Certificate Owners...........................................3
SECTION 2.8 Title to Trust Property.......................................................3
SECTION 2.9 Situs of Trust................................................................3
SECTION 2.10 Representations and Warranties of the Transferor..............................3
SECTION 2.11 Tax Treatment.................................................................4
ARTICLE III
THE CERTIFICATES.........................................................................................5
SECTION 3.1 Initial Certificate Ownership.................................................5
SECTION 3.2 Form of Certificates..........................................................5
SECTION 3.3 Execution, Authentication and Delivery........................................5
SECTION 3.4 New Issuances.................................................................6
SECTION 3.5 Registration; Registration of Transfer and Exchange of
Certificates..................................................................6
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Certificates.............................7
SECTION 3.7 Persons Deemed Certificateholders.............................................8
SECTION 3.8 Access to List of Certificateholders' Names and Addresses. ..................8
SECTION 3.9 Maintenance of Corporate Trust Office.........................................9
SECTION 3.10 Appointment of Paying Agent...................................................9
SECTION 3.11 Transferor as Certificateholder...............................................9
ARTICLE IV
ACTIONS BY OWNER TRUSTEE................................................................................10
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters......................................................................10
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.................10
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy......................11
SECTION 4.4 Restrictions on Certificateholders' Power. .................................11
SECTION 4.5 Majority Control.............................................................11
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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...................................................12
SECTION 5.3 Method of Payment............................................................13
SECTION 5.4 Accounting and Reports to the Certificateholders, the Internal
Revenue Service and Others...................................................13
SECTION 5.5 Signature on Returns; Tax Matters Partner....................................13
ARTICLE VI
THE OWNER TRUSTEE.......................................................................................14
SECTION 6.1 Duties of Owner Trustee......................................................14
SECTION 6.2 Rights of Owner Trustee. ...................................................15
SECTION 6.3 Acceptance of Trusts and Duties..............................................15
SECTION 6.4 Action upon Instruction by Certificateholders................................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 Certificates and Notes.................................19
SECTION 6.9 Compensation and Indemnity...................................................19
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................................21
SECTION 6.13 Eligibility Requirements for Owner Trustee...................................22
ARTICLE VII
TERMINATION OF TRUST AGREEMENT..........................................................................22
SECTION 7.1 Termination of Trust Agreement...............................................22
ARTICLE VIII
AMENDMENTS..............................................................................................24
SECTION 8.1 Amendments Without Consent of Securityholders................................24
SECTION 8.2 Amendments With Consent of Securityholders...................................24
SECTION 8.3 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 Notices......................................................................26
SECTION 9.4 Severability of Provisions...................................................26
SECTION 9.5 Counterparts.................................................................26
SECTION 9.6 Successors and Assigns.......................................................26
SECTION 9.7 No Petition Covenant.........................................................26
SECTION 9.8 No Recourse..................................................................26
SECTION 9.9 Headings.....................................................................27
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SECTION 9.10 Governing Law................................................................27
SECTION 9.11 Certificate Transfer Restrictions............................................27
SECTION 9.12 Indemnification by and Reimbursement of the Servicer.........................27
SECTION 9.13 Third-Party Beneficiaries....................................................27
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Investor Letter
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THIS TRUST AGREEMENT, dated as of November 22, 1999, between
WODFI LLC, a Delaware limited liability company, as Transferor (the
"Transferor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation, as Owner Trustee (not in its individual capacity but solely as
Owner Trustee, the "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 dated as of November 22,
1999, among the Transferor, 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 Appendix A to the
Trust Sale and Servicing Agreement shall be applicable to this Agreement.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as
World Omni Master Owner 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
Certificateholders and the Transferor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is,
and the Trust shall have the power and authority, to engage in the following
activities:
(a) to acquire, manage and hold the Receivables to be
transferred to the Trust from time to time pursuant to the Trust Sale and
Servicing Agreement;
(b) to issue and sell the Notes pursuant to the Indenture or
to another indenture, note purchase agreement or similar agreement and the
Certificates pursuant to this Agreement, and to sell, transfer or exchange the
Notes and the Certificates;
(c) to acquire property and assets from the Transferor
pursuant to the Trust Sale and Servicing Agreement, to make payments or
distributions on the Securities to the Securityholders,
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;
(d) to establish, acquire, hold and terminate liquidity,
credit and other enhancement arrangements, and perform its obligations
thereunder;
(e) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to hold, manage such
Trust Estate and distribute funds to the Certificateholders pursuant to the
terms of this Agreement and the Trust Sale and Servicing Agreement any portion
of the Trust Estate released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(f) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(g) 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
(h) 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 Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Transferor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust
Estate. Pursuant to the Trust Sale and Servicing Agreement, on the date hereof,
the Transferor will sell, assign, transfer, convey and set over to the Owner
Trustee, the assets specified in the Trust Sale and Servicing Agreement. The
Owner Trustee hereby acknowledges receipt in trust from the Transferor, as of
the date hereof, of the foregoing contribution, which shall constitute the
initial Owner Trust Estate. The Transferor 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 and in the Trust Sale and
Servicing Agreement for the use and benefit of the Certificateholders, subject
to the obligations of the Trust under the Basic Documents. It is the intention
of the parties hereto that the Trust constitute a business trust under the
Business Trust Statute, that this Agreement constitute the governing instrument
of such business trust and that the Certificates represent the
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equity interests therein. The rights of the Certificateholders shall be
determined as set forth herein and in the Business Trust Statute and the
relationship between the parties created by this Agreement shall not constitute
indebtedness. The parties hereto agree that, unless otherwise required by
appropriate taxing authorities, the Trust shall file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth in this Agreement, the Trust Sale and Servicing Agreement and
the Business Trust Statute with respect to accomplishing the purposes of the
Trust. The Owner Trustee agrees to file the certificate of trust required under
ss. 3810 et seq. of the Business Trust Statute in the form of Exhibit B hereto
(the "Certificate of Trust") in connection with the formation of the Trust as a
business trust under the Business Trust Statute.
SECTION 2.7 Liability of the Certificate Owners.
Certificateholders and holders of beneficial interests therein shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
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. 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, and payments and distributions shall be
made by the Trust only from Delaware. The only office of the Trust shall be the
Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Owner Trustee and the
Indenture Trustee that:
(a) The Transferor has been duly organized and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware, with power 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 and all Collateral
Security contemplated to be transferred to the Trust pursuant to the Trust Sale
and Servicing Agreement.
(b) The Transferor 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
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have a material adverse effect on its ability to perform its obligations under
the Basic Documents to which it is a party.
(c) The Transferor 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 Transferor by all necessary limited liability
company action.
(d) The execution of this Agreement and the consummation of
the transactions contemplated herein by the Transferor and the fulfillment of
the terms of this Agreement by the Transferor 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 limited liability company
agreement of the Transferor, or any indenture, agreement, mortgage, deed of
trust or other instrument to which the Transferor 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 Transferor's knowledge, any order,
rule or regulation applicable to the Transferor of any Governmental Authority
having jurisdiction over the Transferor or any of its properties.
SECTION 2.11 Tax Treatment. As long as the Transferor is the
sole owner of the Certificates, the Transferor and Owner Trustee, by entering
into this Agreement, (i) express their intention that the Trust will be
disregarded for federal income tax purposes and will be treated as a division or
branch of the Transferor and (ii) agree that Section 5.5 of this Agreement will
not be applicable, and for so long as the Transferor remains the sole record
Certificateholder, the Owner Trustee shall not sign tax returns. If the
Transferor is not the sole owner of the Certificates, through sale of
Certificates, issuance by the Trust of additional Certificates to a person other
than the Transferor, or otherwise, the Transferor and Owner Trustee, by entering
into this Agreement, and the Certificateholders, by acquiring any Certificate or
interest in the Trust, (i) express their intention that the Certificates shall
qualify under applicable tax law as partnership interests in a partnership, with
the assets of the partnership held by the Trust, (ii) unless otherwise required
by appropriate taxing authorities, agree to treat the Certificates as
partnership interests for purposes of federal, state and local income and
franchise taxes, single business tax and any other taxes imposed upon, measured
by or based upon gross or net income, and (iii) agree that immediately upon
there being more than one owner of Certificates, Section 5.5 of this Agreement
will become applicable. Notwithstanding anything herein to the contrary, the
Owner Trustee shall have no duty to take any action pursuant to Section 5.5 or
file tax returns until it has actual knowledge that the Transferor is not the
sole Certificateholder.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation
of the Trust by the contribution by the Transferor pursuant to Section 2.5 and
until the issuance of the Certificates, the Transferor shall be the sole
beneficiary of the Trust.
SECTION 3.2 Form of Certificates.
(a) The Certificates shall be substantially in the form set
forth in Exhibit A. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Responsible Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be, when authorized pursuant to Section 3.3, validly
issued and entitled to the benefits of the Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such certificates or did not hold such offices at
the date of authentication and delivery of such certificates.
(b) The Certificates shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) all as determined by the officers executing
such Certificates, as evidenced by their execution of such Certificates.
(c) The Certificates shall be issued in fully-registered form
and shall be in definitive form only. The terms of the Certificates set forth in
Exhibit A shall form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery.
Concurrently with the sale of the Receivables to the Trust pursuant to the Trust
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates to
be executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Transferor, signed by the chairman of the board, the
president, any vice president, the treasurer or any assistant treasurer of the
Transferor without further action by the Transferor, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Owner Trustee's
authenticating agent, if any, by manual signature. Such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. The Owner Trustee may appoint an agent to act as its
authenticating agent for the purpose of authenticating the Certificates (an
"Authenticating Agent") (who shall be a bank or trust company). Each holder of a
Certificate shall provide the Owner Trustee or the Certificate Registrar with a
form W-9.
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SECTION 3.4 New Issuances.
(a) The Transferor may surrender a portion of its Certificate
to the Owner Trustee in exchange for a newly issued Certificate and one or more
additional certificates (each a "Supplemental Certificate"), the terms of which
shall be defined in a supplement to this Agreement (which supplement shall be
subject to Article VIII to the extent that it amends any of the terms of this
Agreement), to be delivered to or upon the order of the Transferor (or the
holder of a Supplemental Certificate, in the case of the transfer or exchange
thereof, as provided below), upon satisfaction of the following conditions:
(i) the Transferor shall have given the Rating
Agencies notice 5 days prior to such exchange (or transfer and exchange
as provided below) and the Rating Agency Condition shall have been
satisfied with respect to such exchange (or transfer and exchange as
provided below); and
(ii) the Transferor shall have delivered to the Owner
Trustee, the Indenture Trustee, the Rating Agencies and any Enhancement
Provider a Tax Opinion dated the date of such exchange (or transfer and
exchange as provided below), with respect thereto.
Any Supplemental Certificate may be transferred or exchanged only upon
satisfaction of the conditions set forth in clauses (i) and (ii) above.
SECTION 3.5 Registration; Registration of Transfer and
Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.9, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as provided herein. The Certificate
Registrar shall give the Indenture Trustee written notice of any transfer of any
Certificate. The Owner Trustee shall be the initial Certificate Registrar. The
Owner Trustee may appoint a successor to act as the Certificate Registrar (who
shall be a bank or trust company).
(b) Unless otherwise specified in a supplement to this
Agreement, a Certificateholder may at any time, without consent of the
Noteholders, sell, transfer, convey or assign in any manner its rights to and
interests in the Certificates, provided that certain conditions are satisfied
including: (i) such action will not result in a reduction or withdrawal of the
rating of any series or class of Notes; (ii) the Certificateholder provides to
the Owner Trustee and the Indenture Trustee an opinion of independent counsel
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; (iii) such transferee or assignee agrees in writing to take positions
for tax purposes consistent with the tax positions agreed to be taken by the
initial Certificateholder; and (iv) the conditions set forth in Section 9.11
have been satisfied. In addition, no transfer of a Certificate shall be
registered unless the transferee shall have provided to the Owner Trustee and
the Certificate Registrar an opinion of counsel that in connection with such
transfer no registration of the Certificates
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is required under the Securities Act or applicable state law or that such
transfer is otherwise being made in accordance with all applicable federal and
state securities laws.
(c) Subject to Section 3.5(b), upon surrender for registration
of transfer of any Certificate at the office or agency maintained pursuant to
Section 3.9, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause the Authenticating Agent, if any, to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates of the same class in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent.
(d) At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of a like aggregate percentage interest upon
surrender of the Certificates to be exchanged at the Corporate Trust Office
maintained pursuant to Section 3.9. Whenever any Certificates are so surrendered
for exchange, the Owner Trustee shall execute on behalf of the Trust,
authenticate and deliver (or shall cause the Authenticating Agent, if any, to
authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent. Such
Certificates shall be delivered to the Certificateholder making the exchange.
(e) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Certificateholder or his attorney
duly authorized in writing and such other documents and instruments as may be
required by Section 3.5(b). Each Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed or otherwise
disposed of by the Owner Trustee or Certificate Registrar in accordance with its
customary practice.
(f) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (ii) there
is delivered to the Certificate Registrar, 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 bona fide purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee shall
authenticate and deliver (or shall cause the Authenticating Agent, if any, to
authenticate and deliver), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, one or more replacement Certificates in
authorized denominations of a like amount; 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 due and payable, then instead of
issuing
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a replacement Certificate the Owner Trustee may pay distributions to the
Certificateholder of 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
Section 3.6(a), a bona fide purchaser of the original Certificate in lieu of
which such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate from the Person to whom it was delivered or any Person taking such
replacement Certificate (or such distribution) from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide 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 3.6, 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 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
3.6 in replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of 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 and all other Certificates
duly issued hereunder.
(e) The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.7 Persons Deemed Certificateholders. 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 any 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 bound by any notice to the contrary.
SECTION 3.8 Access to List of Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Servicer and the Transferor, within 15 days after receipt by the Owner Trustee
of a request therefor from the Servicer or the Transferor in writing, a list, in
such form as the Servicer or the Transferor may reasonably require, of the names
and addresses of the Certificateholders 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 Transferor or the Owner Trustee accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
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SECTION 3.9 Maintenance of Corporate Trust Office. The Owner
Trustee shall maintain in the City of Wilmington, the State of Delaware an
office or offices or agency or agencies where Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Owner Trustee in respect of the Certificates and the Basic Documents
may be served. The Owner Trustee initially designates the offices of the Owner
Trustee, as its principal office for such purposes. The Owner Trustee shall give
prompt written notice to the Transferor and to the Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
SECTION 3.10 Appointment of Paying Agent. The Owner Trustee
may appoint a Paying Agent. If so appointed, such Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
the Owner Trustee and the Servicer; provided that no such reports shall be
required so long as the Transferor is the sole Certificateholder. For so long as
the Indenture is in effect, notwithstanding anything in this Agreement to the
contrary, all amounts to be distributed to the Certificateholders or the
Certificate Distribution Account shall be distributed by the Indenture Trustee
as required by the Series Supplement. 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 any Paying Agent appointed by it. Any Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Owner Trustee, whereupon the Owner Trustee may appoint a successor to act as the
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 Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. 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 3.11 Transferor as Certificateholder. The Transferor
in its individual or any other capacity may become the owner or pledgee of
Certificates and may otherwise deal with the Owner Trustee or its Affiliates as
if it were not the Transferor.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders 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
Certificateholders in writing of the proposed action at least 30 days before the
taking of such action, and (ii) a majority of the Certificateholders shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (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;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders
(it being understood that the issuance of additional Certificates as
contemplated by Section 3.4 shall be deemed to not materially adversely affect
the interests of the Certificateholders);
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
written direction of the Certificateholders, as described in the last sentence
of this Section 4.2, 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 7.2 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,
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or a written consent signed by, the holders of a majority of the Voting
Interests upon at least 30 days prior notice thereof.
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Holders of Certificates (including the Transferor) and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent. By its acceptance of any Certificate issued to it on the Closing
Date, the Transferor agrees that it, at any time that it is the holder thereof,
shall not approve or be deemed to have approved the commencement of a voluntary
proceeding in bankruptcy 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 Transferor's board of directors.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the 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 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 Certificateholders,
shall cause to be established and maintained in the name of the Owner Trustee an
Eligible Deposit Account known as the World Omni Master Owner 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 Certificateholders. The Certificate Distribution
Account shall initially be established with the 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 for the benefit of the
Certificateholders. Except as otherwise provided herein or in the Trust Sale and
Servicing Agreement, the Certificate Distribution Account shall be under the
sole dominion and
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control of the Owner Trustee for the benefit of the Certificateholders. If, at
any time, any Certificate Distribution Account ceases to be an Eligible Deposit
Account, the Servicer, within 10 days of determining that such Certificate
Distribution Account is no longer an Eligible Deposit Account, shall establish a
substitute Eligible Deposit Account as such Certificate Distribution Account,
instruct the Owner Trustee in writing to transfer any cash and/or any Eligible
Investments to such new Certificate Distribution Account and, from the date any
such substitute account is established, such account shall be the Certificate
Distribution Account.
All Eligible Investments shall be held by the Owner
Trustee as applicable, for the benefit of the Certificateholders. Funds on
deposit in the Certificate Distribution Account shall at the written direction
of the Servicer be invested by the Owner Trustee, solely in Eligible Investments
that will mature so that such funds will be available at the close of business
on the next Business Day. All interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Certificate
Distribution Account shall be credited to the Certificate Distribution Account
when received. In the absence of timely and specific written investment
direction from the Servicer, the Owner Trustee shall invest any cash held by it
in Eligible Investments specified in clause (h) of the definition thereof. In no
event shall the Owner Trustee be liable for the selection of investments or for
investment losses incurred thereon. The Owner Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity or the failure of the Servicer to provide timely
written investment direction.
SECTION 5.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall distribute
to the Certificateholders the amounts deposited in the Certificate Distribution
Account as set forth in the applicable Series Supplement. Notwithstanding the
foregoing or anything else to the contrary in this Agreement or the other Basic
Documents, so long as Certificates representing in the aggregate a 100%
beneficial interest in the Trust are held by the Transferor, (i) no Certificate
Distribution Account shall be required to be established or maintained and (ii)
all distributions and payments on the Certificates (including the final
distribution as contemplated by Section 7.1(c) hereof) required hereunder or
under the Indenture or the applicable Series Supplement shall be made directly
to the Transferor by the Owner Trustee (whether or not the Indenture or the
applicable Series Supplement otherwise contemplates deposit into the Certificate
Distribution Account) and the Indenture Trustee and the Owner Trustee shall have
no duty or liability to see to such distribution.
(b) On each Payment Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 3.4 of the Trust Sale and Servicing Agreement on such
Payment Date.
(c) If the Owner Trustee determines, whether as a result of
advice from the Administrator or otherwise, that 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 shall not have an obligation to withhold any such amount so long as the
Transferor is the sole
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Certificateholder. The Owner Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee (without any obligation to do
so) 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 may in its sole discretion (but shall not
be required to) withhold such amounts in accordance with this Section 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.
SECTION 5.3 Method of Payment. Subject to Section 7.1(c),
distributions required to be made to Certificateholders on any Payment Date
shall be made to each 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
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 Certificateholders,
the Internal Revenue Service and Others. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis on
the cash method of accounting, (b) 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, (c) 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 as, for so long as all of the
Certificates are owned by the Transferor, a division or branch of the Transferor
and, if not, as determined by the Transferor for federal income tax purposes, in
all such cases on forms prepared by the Administrator, (d) cause such tax
returns to be signed in the manner required by law and (e) collect or cause to
be collected any withholding tax required to be withheld by the Owner Trustee in
accordance with Section 5.2(c) with respect to income or distributions to
Certificateholders.
SECTION 5.5 Signature on Returns; Tax Matters Partner. Subject
to Section 2.11, the Owner Trustee shall sign on behalf of the Trust any and all
tax returns of the Trust that are prepared and delivered to it for execution by
the Administrator, unless applicable law requires a Certificateholder to sign
such documents, in which case such documents shall be signed by the Transferor.
The Transferor shall be the "tax matters partner" of the Trust pursuant to the
Code.
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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 Certificateholders, 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 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 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) The Owner Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting on any document believed by it to
be genuine and to have been signed or presented by the proper Person. The Owner
Trustee shall not be bound to make any investigation into any fact or matter
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document.
(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 Section 6.1(d) shall not limit the effect of
Section 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; and
(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.
(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 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
14
Officer of the Owner Trustee, result in the Trust's becoming taxable as a
corporation for federal income tax purposes.
(g) The Certificateholders 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
Transferor 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,
Chase Manhattan Bank Delaware 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 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 Basic Documents and this Agreement. The Owner Trustee shall not
be liable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own negligent action, its own negligent
failure to act or its own wilful 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 Certificateholders under this Agreement or to Noteholders under the
Indenture, including, without limitation: 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 Transferor or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee;
15
(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 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 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 any amounts payable with
respect to the Certificates;
(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 Transferor or
for the form, character, genuineness, sufficiency, value or validity of any of
the Owner Trust Estate or for or in respect of the validity or sufficiency of
the Basic Documents, the Notes, the Certificates (other than the certificate of
authentication on the Certificates) 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 Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Indenture Trustee, the Transferor 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 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 any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be construed
as a duty, and the Owner Trustee shall not be answerable for other than its
negligence or wilful misconduct in the performance of any such act.
SECTION 6.4 Action upon Instruction by Certificateholders.
(a) Subject to Section 4.4 , the Certificateholders may by
written instruction direct the Owner Trustee in the management of the Trust.
Such direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
16
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if the
Owner Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Owner Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any Basic Document, or is unsure as to the application, intent,
interpretation or meaning of any provision of this Agreement or the Basic
Documents, the Owner Trustee shall promptly give notice (in such form as shall
be appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and, to the extent the
Owner Trustee acts in good faith in accordance with any 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
Basic Documents, and as it shall deem to be in the best interests of the
Certificateholders, and the Owner Trustee shall have no liability to any Person
for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall
furnish (a) to the Certificateholders, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents and (b) to the Noteholders and
the Certificateholders, promptly upon receipt of a written request therefor,
copies of the Receivables Purchase Agreement, the Trust Sale and Servicing
Agreement, the Administration Agreement, and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee.
The Owner Trustee hereby represents and warrants to the Transferor, for the
benefit of the Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
(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 and (iii) shall not violate
any provision of, or
17
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
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(f) The Owner Trustee certifies that (a) its principal place
of business is outside the State of Florida; (b) its usual place of business
where books and records pertaining to the Trust will be kept is outside the
State of Florida; (c) it is not licensed, and is not qualified, to do business
within the State of Florida; (d) it will exercise all management and control
over the Trust Assets and over the Trust outside the State of Florida; (e) it
has no employees employed within the State of Florida; and (f) it is not
organized under the laws of the State of Florida. The Owner Trustee will certify
the above by September 30 each year this Agreement is in effect by providing an
Officer's Certificate in the form of Exhibit D attached hereto. Additionally,
the Owner Trustee certifies and agrees it will promptly notify the Transferor if
any of the above changes.
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, without any inquiry or investigation into the factual matters
addressed therein, 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.
18
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee: (i) may act directly or through its agents,
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
Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Transferor, 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 Transferor 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 6.4 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 Section 6.9 shall be deemed not to be a part of the Owner Trust
Estate immediately after such payment.
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;
19
(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, computer
files 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.
(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 Certificateholders, the Indenture
Trustee, the Noteholders, the Agent 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.
20
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
(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
21
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 Business 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 and at least Baa3 by Moody's. 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 dissolve and be wound up in accordance
with Section 3808 of the Business Trust Statute on the date (the "Trust
Termination Date") on which the first of the following occurs: (i) if the
Transferor 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 Note Distribution Account, or the
Certificate Distribution Account) and the aggregate Outstanding Amount of all
Series of Notes is zero and (ii) the Specified Trust Termination Date. This
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 (i) if the Trust Termination Date is determined pursuant
to clause (i) above, on the Trust Termination Date and (ii) 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 Trust Accounts).
22
(b) Except as provided in Section 7.1(a), neither the
Transferor nor any Certificateholder shall be entitled to revoke or terminate
the Trust or this Agreement. The bankruptcy, liquidation, dissolution, death or
incapacity of any 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.
(c) Notice of any termination of the Trust specifying the
Payment Date upon which the Certificateholders shall surrender their
Certificates to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the
Certificateholders mailed within five Business Days of receipt of notice of such
termination from the Servicer, stating: (i) the Payment Date upon or with
respect to which the final distribution of the Certificate Balance of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated; (ii) the amount of any
such final distribution of the Certificate Balance; and (iii) that the Record
Date otherwise applicable to such Payment Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
written notice specified in Section 7.1(c), the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain 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 Transferor
and distributed by the Owner Trustee to the Transferor and the Owner Trustee
shall have no further liability to the Certificateholders with respect thereto.
(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 of the State of Delaware
in accordance with the provisions of Section 3810 of the Business Trust Statute.
(f) Within sixty days of the later of (i) the cancellation of
all Certificates pursuant to Section 7.1(c) or Section 7.1(d), or (ii) payment
to the Transferor of funds remaining in the Trust pursuant to Section 7.1(d),
the Owner Trustee shall provide each of the Rating Agencies with written
23
notice stating that all Certificates have been so canceled or such funds have
been so paid to the Transferor.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Securityholders.
This Agreement may be amended by the Transferor and the Owner Trustee without
the consent of any of the Securityholders or Enhancement Providers (but with
prior notice to the Rating Agencies and the Indenture Trustee) 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 liquidity, credit or other enhancement arrangement for the
benefit of any Securityholders or Enhancement Providers (provided that if any
such addition shall affect any series of Securityholders differently than any
other series 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 of Securityholders), (iv) add to the covenants, restrictions or
obligations of the Transferor, the Servicer, the Trust, or the Owner Trustee for
the benefit of the Securityholders or Enhancement Providers and (v) 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 or Enhancement Providers.
SECTION 8.2 Amendments With Consent of Securityholders. This
Agreement may be amended from time to time by the Transferor 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 Payment Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the Voting Interests as of the
close of business on the preceding Payment Date (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 or Certificates and of any Notes or Certificates 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 Certificates) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that shall be required to be
made on any Security without the consent of the Holder thereof (it being
understood that the issuance of any Securities after the Initial Closing Date as
contemplated by this Agreement, the Trust Sale and Servicing Agreement and the
Indenture and the specification of the terms and provisions thereof pursuant to
a Series Supplement shall not be deemed to have such effect for purposes
hereof), (b) adversely affect the rating of any series 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 such Certificates, 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 Certificates then outstanding. Prior to the
execution of any such amendment, supplement or consent, the Owner Trustee shall
furnish written notification
24
of the substance of such amendment, supplement or consent to the Rating Agencies
and the Indenture Trustee.
SECTION 8.3 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 of the State of Delaware.
(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
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for
Sections 2.7, 7.1(c), 7.1(f) and 9.12, the provisions of this Agreement are
solely for the benefit of the Owner Trustee, the Transferor, the
Certificateholders, 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.
25
SECTION 9.3 Notices. All demands, notices and communications
upon or to the Transferor, the Servicer, the Administrator, the Indenture
Trustee, the Owner Trustee or the Rating Agencies or any Certificateholder under
this Agreement shall be delivered as specified in Appendix B to the Trust Sale
and Servicing Agreement.
SECTION 9.4 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
Certificates or the rights of the Holders thereof.
SECTION 9.5 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 9.6 Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Transferor, 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 9.7 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, the Trust (or the Owner Trustee on behalf of the
Trust), and each Certificateholder, by accepting a Certificate (or interest
therein) issued hereunder, hereby covenant and agree that they shall not, prior
to the day that is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause the Transferor or the Trust to
invoke in any court or government authority for the purpose of commencing or
sustaining a case against the Transferor 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
Transferor or the Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Transferor or the Trust.
SECTION 9.8 No Recourse. Each Certificateholder, by accepting
a Certificate (or interest therein), acknowledges that such Person's Certificate
(or interest therein) represents beneficial interests in the Trust only and does
not represent interests in or obligations of the Transferor, 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 Certificates or the Basic Documents. Except as expressly provided
in the Basic Documents, neither the Transferor, 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
26
respect to the Certificates, or the Owner Trustee's performance of, or omission
to perform, any of the covenants or obligations contained in the Certificates or
this Agreement, it being expressly understood that said covenants and
obligations have been made by the Owner Trustee solely in its capacity as the
Owner Trustee. 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 Certificates, it shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom.
SECTION 9.9 Headings. The headings herein are for purposes of
reference only and shall not affect the meaning or interpretation of any
provision hereof.
SECTION 9.10 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 PRINCIPLES OF CONFLICTS OF LAW 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 9.11 Certificate Transfer Restrictions. The
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Code or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each a "Benefit Plan"). By
accepting and holding a Certificate, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 9.12 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 3.2 of the Trust Sale and Servicing Agreement and (ii) the Transferor
and its directors, officers, employees and agents in accordance with Section 6.3
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 6.4 of the Trust Sale and Servicing Agreement.
SECTION 9.13 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Securityholders, the Enhancement Providers, the Indenture Trustee and their
respective successors and permitted assigns. Except as otherwise expressly
provided in this Agreement, no other Person will have any right or obligation
hereunder.
* * * * *
27
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.
CHASE MANHATTAN BANK DELAWARE
as Owner Trustee
By:__________________________________
Name:
Title:
WODFI LLC, as Transferor
By:__________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
Acknowledged and Accepted:
WORLD OMNI FINANCIAL CORP.,
as Servicer
By: __________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
28
EXHIBIT A
NUMBER
R-1
OWNERSHIP INTEREST: 100%
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(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"), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. BY
ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON NOVEMBER 22, 1999. HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
WORLD OMNI MASTER OWNER TRUST
CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of wholesale receivables
generated from time to time in a portfolio of revolving financing
arrangement with dealers to finance automobile and light duty truck
inventories thereon and certain other properties.
(This Certificate does not represent an interest in or obligation of
World Omni Financial Corp., WODFI LLC, the Owner Trustee or any of
their respective affiliates, except to the extent described below.)
A-1
THIS CERTIFIES THAT WODFI LLC is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in World Omni Master
Owner Trust (the "Trust").
The Trust was created pursuant to a trust agreement, dated as
of November 22, 1999 (as amended restated or supplemented from time to time, the
"Trust Agreement"), between the Transferor and Chase Manhattan Bank Delaware, 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 distributions 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 and the Indenture.
Each Certificateholder with respect to a Certificate, by its
acceptance of a Certificate, covenants and agrees that such Certificateholder
with respect to a Certificate, shall not, prior to the date which is one year
and one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Transferor 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 Transferor or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Transferor.
Distributions on this Certificate shall be made as provided in
the Trust Agreement by wire transfer, check mailed or, where possible,
intra-bank book entry to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate 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 City of Wilmington, the
State of Delaware.
Reference is hereby made to 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.
A-2
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 or the Trust Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS OR ANY OTHER
JURISDICTION'S CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
Dated: November 22, 1999
WORLD OMNI MASTER OWNER TRUST
By: CHASE MANHATTAN BANK DELAWARE
not in its individual capacity but solely as
Owner Trustee
By:_________________________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
CHASE MANHATTAN BANK DELAWARE OR ______________________________
not in its individual capacity but solely as not in its individual capacity
Owner Trustee but solely as Authenticating
Agent by______________________
Authenticating Agent
By: _______________________________ By: _________________________
Authorized Officer Authorized Officer
A-4
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Transferor, the Servicer, World Omni Financial Corp., 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
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 (and certain
other amounts), all as more specifically set forth herein, in the Trust
Agreement and the Trust Sale and Servicing Agreement. A copy of each of the
Trust Sale and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Transferor, and at
such other places, if any, designated by the Transferor, by any
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 Transferor and the rights of the Certificateholders under the
Trust Agreement at any time by the Transferor and the Owner Trustee with the
consent of (i) the Holders of the Notes evidencing not less than a majority of
the Outstanding Amount of the Voting Interests, and (ii) Certificateholders
whose Certificates evidence not less than a majority of the ownership interest
in the Trust, each as of the close of the preceding Payment Date. 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 registration of 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 Certificates 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 State of Delaware, 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 and (ii) certain opinions required by
Section 3.4 of the Trust Agreement, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee. The initial Certificate Registrar
appointed under the Trust Agreement is the Owner Trustee.
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
Certificateholders of all amounts required to be distributed to them pursuant to
the Trust Agreement and the Trust Sale and Servicing Agreement.
A-5
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 whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________Attorney to transfer said
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: _______________________________*
Signature Guaranteed:
_______________________________*
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-7
EXHIBIT B
CERTIFICATE OF TRUST OF
WORLD OMNI MASTER OWNER TRUST
-----------------------------
THIS CERTIFICATE OF TRUST of World Omni Master Owner Trust
(the "Trust"), dated as of November 22, 1999, is being duly executed and filed
by Chase Manhattan Bank Delaware, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. C. ss.3801
et seq.).
1. Name. The name of the business trust formed hereby is World
Omni Master Owner Trust.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Chase Manhattan Bank Delaware,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. This Certificate of Trust shall be effective on November
22, 1999.
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.
Chase Manhattan Bank Delaware,
not in its individual capacity
but solely as Owner Trustee under
a Trust Agreement dated as of
November 22, 1999.
By: ___________________________
Name:
Title:
B-1
EXHIBIT C
INVESTOR LETTER
---------------
WODFI LLC
Corporation Service Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________
Ladies and Gentlemen:
In connection with our proposed purchase of the_____________
(the "Certificate"), representing a fractional undivided interest in the World
Omni Master Owner Trust, issued under a trust agreement, dated as of November
22, 1999 (the "Trust Agreement"), between WODFI LLC, a Delaware limited
liability company (the "Transferor") and Chase Manhattan Bank Delaware, 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 Securities Act of 1933, as amended (the "Securities
Act"), 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 may be resold, pledged or transferred
only (i) to the Transferor, (ii) to an institutional investor
that is an "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) (an "Institutional Accredited Investor") under
the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of
the certificate for the Certificate) acting for its own
account (and not for the account of others) or as a fiduciary
or agent for others (which others also are Institutional
Accredited Investors unless the holder is a bank acting in its
fiduciary capacity) that executes a certificate substantially
in the form hereof, (iii) so long as such Certificate is
eligible for resale pursuant to Rule 144A under the Securities
Act ("Rule 144A"), to a person whom we reasonably believe
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 (iv) 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 Transferor in writing the facts
surrounding such transfer, which certification shall be in
form and substance satisfactory to the Owner Trustee and the
Transferor, and
C-1
(B) the Owner Trustee may require a written opinion of counsel
(which will not be at the expense of the Transferor or the
Owner Trustee) satisfactory to the Transferor 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 from us of the above
resale restrictions, if then applicable. We further understand
that in connection with any transfer of the Certificate by us
that the Transferor and the Owner Trustee may request, and if
so requested we will furnish, such certificates and other
information as they may reasonably require to confirm that any
such transfer complies with the foregoing restrictions. We
understand that no sale, pledge or other transfer may be made
to any one person for Certificates with a face amount of less
than $___________ (or such other amount as the Transferor may
determine in order to prevent the Trust from being treated as
a "publicly traded partnership" under Section 7704 of the
Code, but in no event less than $250,000) and, in the case of
any person acting on behalf of one or more third parties
(other than a bank (as defined in Section 3(a)(2) of the
Securities Act) acting in its fiduciary capacity), for
Certificates with a face amount of less than such amount for
each such third party. Any attempted transfer will be void ab
initio and the purported transferor will continue to be
treated as the owner of the offered Certificates for all
purposes.
2.
[CHECK ONE]
[ ] (a) We are an institutional investor and an
"accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities
Act) acting for our own account (and not for the
account of others) or as a fiduciary or agent for
others (which others also are Institutional
Accredited Investors unless we are bank acting in its
fiduciary capacity). We have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our
investment in the Certificate, and we and any
accounts for which we are acting are each able to
bear the economic risk of our or its investment for
an indefinite period of time. We are acquiring the
Certificate for investment and not with a view to, or
for offer and sale in connection with, a public
distribution.
C-2
[ ] (b) We are a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act and
are acquiring the Certificate for our own account
(and not for the account of others) or as a fiduciary
or agent for others (which others also are "qualified
institutional buyers"). We are familiar with Rule
144A under the Securities Act and are aware that the
transferor of the Certificate and other parties
intend to rely on the statements made herein and the
exemption from the registration requirements of the
Securities Act provided by Rule 144A.
3. 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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