WDS RECEIVABLES LLC, as Depositor, and WILMINGTON TRUST COMPANY, as Owner Trustee AMENDED AND RESTATED TRUST AGREEMENT Dated as of June 1, 2007
Exhibit
4.2
WDS
RECEIVABLES LLC,
as
Depositor,
and
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
_________________________
AMENDED
AND RESTATED
Dated
as
of June 1, 2007
_________________________
TABLE
OF
CONTENTS
Page
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ARTICLE
ONE
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DEFINITIONS
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Section
1.01. General Definitions
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1
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Section
1.02. Other Definitional Provisions
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6
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Section
1.03. Interpretive Provisions
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6
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ARTICLE
TWO
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ORGANIZATION
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Section
2.01. Name
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7
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Section
2.02. Office
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7
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Section
2.03. Purposes and Powers
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7
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Section
2.04. Appointment of Owner Trustee
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8
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Section
2.05. Initial Capital Contribution of Owner Trust Estate
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8
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Section
2.06. Declaration of Trust
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8
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Section
2.07. Liability of Certificateholders
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9
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Section
2.08. Title to Trust Property
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9
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Section
2.09. Situs of Issuer
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9
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Section
2.10. Representations and Warranties of the Depositor
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9
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Section
2.11. Federal Income Tax Matters
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10
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ARTICLE
THREE
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CERTIFICATES
AND TRANSFER OF INTERESTS
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Section
3.01. Initial Ownership
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12
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Section
3.02. The Certificates
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12
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Section
3.03. Authentication and Delivery of Certificates
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12
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Section
3.04. Registration, Transfer and Exchange of Certificates.
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12
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Section
3.05. Mutilated, Destroyed, Lost or Stolen Certificates.
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14
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Section
3.06. Persons Deemed Certificateholders
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14
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Section
3.07. Access to List of Certificateholders’ Names and
Addresses
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15
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Section
3.08. Maintenance of Office or Agency
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15
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Section
3.09. Appointment of Paying Agent
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15
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Section
3.10. Certificates Nonassessable and Fully Paid
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16
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i
Page
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ARTICLE
FOUR
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ACTIONS
BY OWNER TRUSTEE
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Section
4.01. Prior Notice to Certificateholders with Respect to Certain
Matters
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17
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Section
4.02. Action by Certificateholders with Respect to Certain
Matters
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17
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Section
4.03. Action by Certificateholders with Respect to
Bankruptcy
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18
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Section
4.04. Restrictions on Certificateholders’ Power
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18
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Section
4.05. Majority Control
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18
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Section
4.06. Certain Litigation Matters
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18
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ARTICLE
FIVE
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APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
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Section
5.01. Establishment of Certificate Payment Account
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19
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Section
5.02. Application of Trust Funds
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19
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Section
5.03. Method of Payment
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20
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Section
5.04. No Segregation of Monies; No Interest
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20
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Section
5.05. Accounting and Reports to Noteholders, Certificateholders,
the IRS
and Others
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20
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Section
5.06. Signature on Returns; Tax Matters Partner
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21
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ARTICLE
SIX
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AUTHORITY
AND DUTIES OF OWNER TRUSTEE
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Section
6.01. General Authority
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22
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Section
6.02. General Duties
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22
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Section
6.03. Action Upon Instruction
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23
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Section
6.04. No Duties Except as Specified in this Agreement or in
Instructions
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24
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Section
6.05. No Action Except Under Specified Documents or
Instructions
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24
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Section
6.06. Restrictions
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24
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ARTICLE
SEVEN
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THE
OWNER TRUSTEE
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Section
7.01. Acceptance of Duties
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25
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Section
7.02. Furnishing of Documents
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26
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Section
7.03. Representations and Warranties
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27
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Section
7.04. Reliance; Advice of Counsel
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27
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Section
7.05. Not Acting in Individual Capacity
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28
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Section
7.06. Owner Trustee Not Liable for Certificates or
Receivables
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28
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Section
7.07. Owner Trustee May Own Certificates and Notes
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28
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Section
7.08. Paying Agent; Authenticating Agent
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29
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ii
Page
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ARTICLE
EIGHT
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COMPENSATION
AND INDEMNIFICATION OF OWNER TRUSTEE
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Section
8.01. Owner Trustee’s Fees and Expenses
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30
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Section
8.02. Indemnification
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30
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Section
8.03. Payments to the Owner Trustee
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30
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ARTICLE
NINE
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TERMINATION
OF TRUST AGREEMENT
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Section
9.01. Termination of Trust Agreement
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31
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ARTICLE
TEN
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SUCCESSOR
AND ADDITIONAL OWNER TRUSTEES
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Section
10.01. Eligibility Requirements for Owner Trustee
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33
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Section
10.02. Resignation or Removal of Owner Trustee
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33
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Section
10.03. Successor Owner Trustee
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34
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Section
10.04. Merger or Consolidation of Owner Trustee
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34
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Section
10.05. Appointment of Co-Trustee or Separate Trustee
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35
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ARTICLE
ELEVEN
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REGULATION
AB
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Section
11.01. Intent of the Parties; Reasonableness
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37
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Section
11.02. Representations and Warranties
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37
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Section
11.03. Information to Be Provided by the Owner Trustee
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37
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ARTICLE
TWELVE
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MISCELLANEOUS
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Section
12.01. Supplements and Amendments
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39
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Section
12.02. No Legal Title to Owner Trust Estate in
Certificateholders
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40
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Section
12.03. Limitations on Rights of Others
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41
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Section
12.04. Notices
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41
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Section
12.05. Severability
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41
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Section
12.06. Counterparts
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41
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Section
12.07. Successors and Assigns
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41
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Section
12.08. Covenants of the Depositor
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42
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Section
12.09. No Petition
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42
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Section
12.10. No Recourse
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42
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Section
12.11. Headings
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42
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iii
Page
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Section
12.12. GOVERNING LAW
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42
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Section
12.13. Servicer Payment Obligation
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42
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Section
12.14. Obligations with Respect to the Swap Counterparty
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42
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EXHIBITS
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Exhibit A
– Form of Certificate
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A-1
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Exhibit B
– Form of Certificate of Trust
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B-1
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iv
AMENDED
AND RESTATED TRUST AGREEMENT
This
Amended and Restated Trust Agreement, dated as of June 1, 2007, is between
WDS
Receivables LLC, a Nevada limited liability company, as depositor (the
“Depositor”), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (the “Owner Trustee”).
WHEREAS,
Wachovia Auto Loan Owner Trust 2007-1 has been created pursuant to a trust
agreement, dated as of October 10, 2006, between the Depositor and the
Owner Trustee (the “Initial Trust Agreement”), and the filing of a certificate
of trust with the Secretary of State of the State of Delaware on
October 10, 2006; and
WHEREAS,
the Depositor and the Owner Trustee wish to amend and restate the Initial Trust
Agreement on the terms and conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
ONE
DEFINITIONS
“Accountants”
means a firm of independent public accountants.
“Administration
Agreement” means the administration agreement, dated as of June 1, 2007,
among the Administrator, the Issuer, the Depositor and the Indenture
Trustee.
“Administrator”
means Wachovia Bank, in its capacity as administrator under the Administration
Agreement, and its successors in such capacity.
“Affiliate”
has the meaning specified in the Sale and Servicing Agreement.
“Agreement”
means this Amended and Restated Trust Agreement.
“Applicants”
has the meaning specified in Section 3.07.
“Basic
Documents” has the meaning specified in the Sale and Servicing
Agreement.
“Benefit
Plan” means (i) an employee benefit plan (as such term is defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or
(iii) any entity whose underlying assets include plan assets by reason of a
plan’s investment in the entity.
“Business
Day” has the meaning specified in the Sale and Servicing
Agreement.
1
“Certificate”
means a certificate evidencing the beneficial interest of a Certificateholder
in
the Owner Trust Estate, substantially in the form of
Exhibit A.
“Certificate
of Trust” means the Certificate of Trust substantially in the form of
Exhibit B filed for the Issuer pursuant to Section 3810(a) of the
Statutory Trust Statute.
“Certificate
Payment Account” has the meaning specified in
Section 5.01.
“Certificate
Percentage Interest” has the meaning specified in the Sale and Servicing
Agreement.
“Certificate
Register” and “Certificate Registrar” shall have the respective
meanings specified in Section 3.04(a).
“Certificateholder”
or “Holder” means a Person in whose name a Certificate is registered on
the Certificate Register.
“Class”
has the meaning specified in the Indenture.
“Closing
Date” has the meaning specified in the Indenture.
“Code”
has the meaning specified in the Indenture.
“Collection
Period” has the meaning specified in the Indenture.
“Commission”
has the meaning specified in the Indenture.
“Corporate
Trust Office” means, with respect to the Owner Trustee, the principal
corporate trust office of the Owner Trustee located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration,
or
at such other address as the Owner Trustee may designate from time to time
by
notice to the Certificateholders, the Indenture Trustee, the Master Servicer
and
the Depositor, or the principal corporate trust office of any successor Owner
Trustee at the address designated by such successor Owner Trustee by notice
to
the Certificateholders, the Indenture Trustee, the Master Servicer and the
Depositor.
“Cutoff
Date Pool Balance” has the meaning specified in the Sale and Servicing
Agreement.
“Depositor”
means WDS Receivables, in its capacity as depositor hereunder, and its
successors in such capacity.
“Distribution
Date” has the meaning specified in the Indenture.
“Eligible
Institution” has the meaning specified in the Sale and Servicing
Agreement.
“Eligible
Investments” has the meaning specified in the Sale and Servicing
Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
2
“Excess
Collections” has the meaning specified in the Indenture.
“Exchange
Act” has the meaning specified in the Sale and Servicing
Agreement.
“Exchange
Act Reports” has the meaning specified in the Sale and Servicing
Agreement.
“Excluded
Property” means any funds held and invested pursuant to Section
2.03(b).
“Expenses”
means any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature
whatsoever.
“Final
Scheduled Distribution Date” has the meaning specified in the
Indenture.
“Financed
Vehicle” has the meaning specified in the Sale and Servicing
Agreement.
“Fitch”
has the meaning specified in the Indenture.
“Indemnified
Parties” means the Owner Trustee and its successors, assigns, directors,
officers and agents.
“Indenture”
means the indenture, dated as of June 1, 2007, between the Issuer and the
Indenture Trustee.
“Indenture
Trustee” has the meaning specified in the Indenture.
“IRS”
means the United States Internal Revenue Service.
“Issuer”
has the meaning specified in the Indenture.
“Item
1119 Party” has the meaning specified in the Sale and Servicing
Agreement.
“Lien”
has the meaning specified in the Sale and Servicing Agreement.
“Maryland
Vehicle Sales Finance Act” has the meaning specified in the
Indenture.
“Master
Servicer” has the meaning specified in the Sale and Servicing
Agreement.
“▇▇▇▇▇’▇”
has the meaning specified in the Indenture.
“Note
Balance” has the meaning specified in the Indenture.
“Note
Registrar” has the meaning specified in the Indenture.
“Noteholder”
has the meaning specified in the Indenture.
“Notes”
has the meaning specified in the Indenture.
3
“Opinion
of Counsel” means one or more written opinions of counsel, who may, except
as expressly provided in this Trust Agreement, be an employee of or outside
counsel to the Issuer, Depositor, the Seller or the Master Servicer, and who
shall be acceptable to the Indenture Trustee or the Owner Trustee, as the case
may be.
“Optional
Purchase” means the exercise by the Seller of its option to purchase all
remaining Receivables from the Issuer on any Distribution Date following the
last day of a Collection Period as of which the Pool Balance is 10% or less
of
the Cutoff Date Pool Balance.
“Outstanding”
has the meaning specified in the Indenture.
“Owner
Trust Estate” means the $1,000 initial capital contribution from the
Depositor and all right, title and interest of the Issuer in, to and under
the
property and rights assigned to the Issuer pursuant to Article Two of the
Sale and Servicing Agreement.
“Owner
Trustee” means Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee under this Agreement, and any successor in such
capacity.
“Paying
Agent” means the Indenture Trustee, in its capacity as Paying Agent under
this Agreement, and any successor paying agent or co-paying agent appointed
pursuant to Section 3.09 who is authorized by the Owner Trustee on behalf
of the Issuer to make distributions from the Certificate Payment Account on
behalf of the Issuer.
“Pennsylvania
Motor Vehicle Sales Finance Act” has the meaning specified in the
Indenture.
“Person”
has the meaning specified in the Sale and Servicing Agreement.
“Plan
Asset Regulation” means 29 C.F.R. Section 2510.3-101 issued by the
United States Department of Labor concerning the definition of what constitutes
the assets of a Benefit Plan with respect to such Benefit Plan’s investment in
an entity for purposes of the fiduciary responsibility provisions of
Title I of ERISA and Section 4975 of the Code.
“Pool
Balance” has the meaning specified in the Sale and Servicing
Agreement.
“Protected
Purchaser” has the meaning specified in Section 8-303 of the
UCC.
“PTCE
95-60” means Prohibited Transaction Class Exemption 95-60.
“Rating
Agency” has the meaning specified in the Indenture.
“Rating
Agency Condition” has the meaning specified in the Indenture.
“Receivable”
has the meaning specified in the Receivables Purchase Agreement.
“Receivables
Purchase Agreement” means the receivables purchase agreement, dated as of
June 1, 2007, between the Seller and WDS Receivables.
4
“Record
Date” means, with respect to the Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date.
“Regulation
AB” has the meaning specified in the Sale and Servicing
Agreement.
“Required
Rating” means, with respect to any entity, the short-term credit rating of
the related entity is at least equal to “F1+” by Fitch, “Prime-1” by ▇▇▇▇▇’▇ and
“A-1+” by Standard & Poor’s.
“Reserve
Fund” has the meaning specified in the Sale and Servicing
Agreement.
“Responsible
Officer” has the meaning specified in the Sale and Servicing
Agreement.
“Sale
and Servicing Agreement” means the sale and servicing agreement, dated as of
June 1, 2007, among the Issuer, the Depositor, the Seller and the Master
Servicer.
“Secretary
of State” means the Secretary of State of the State of
Delaware.
“Securities
Act” has the meaning specified in the Sale and Servicing
Agreement.
“Securitization
Transaction” means any transaction involving a sale or other transfer of
receivables directly or indirectly to an issuing entity in connection with
an issuance of publicly offered or privately placed, rated or
unrated asset-backed securities.
“Seller”
has the meaning specified in the Receivables Purchase Agreement.
“Servicer
Termination Event” has the meaning specified in the Sale and Servicing
Agreement.
“Standard &
Poor’s” has the meaning specified in the Indenture.
“State”
has the meaning specified in the Indenture.
“Statutory
Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code § 3801 et seq.
“Successor
Servicer” has the meaning specified in the Sale and Servicing
Agreement.
“Swap
Agreement” has the meaning specified in the Indenture.
“Swap
Counterparty” has the meaning specified in the Indenture.
“Transfer”
means a sale, exchange, transfer, assignment, participation, pledge or other
disposition of a Certificate.
“Treasury
Regulations” means regulations, including proposed or temporary regulations,
promulgated under the Code. References herein to specific provisions
of proposed or temporary Treasury Regulations shall include analogous provisions
of final Treasury Regulations or other successor Treasury
Regulations.
5
“UCC”
has the meaning specified in the Indenture.
“United
States” has the meaning specified in the Indenture.
“Vice
President” has the meaning specified in the Sale and Servicing
Agreement.
“Wachovia
Bank” means Wachovia Bank, National Association.
“WDS
Receivables” means WDS Receivables LLC.
Section
1.02. Other Definitional Provisions.
(a) Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Sale and Servicing Agreement or the Indenture, as the
case may be.
(b) All
terms defined in this Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
Section
1.03. Interpretive Provisions. With respect to all
terms in this Agreement, unless the context otherwise requires: (i) a term
has the meaning assigned to it; (ii) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time in the United States;
(iii) “or” is not exclusive; (iv) “including” means including without
limitation; (v) words in the singular include the plural and words in the
plural include the singular; (vi) any agreement, instrument or statute
defined or referred to herein or in any instrument or certificate delivered
in
connection herewith means such agreement, instrument or statute as from time
to
time amended, restated, modified or supplemented and includes (in the case
of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; (vii) references to a Person are also to its
successors and permitted assigns; (viii) the words “hereof”, “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; (ix) Section, subsection, Schedule and Exhibit references
in this Agreement are references to Sections, subsections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; (x) references
to “writing” include printing, typing, lithography and other means of
reproducing words in a visible form; and (xi) the term “proceeds” has the
meaning set forth in the applicable UCC.
6
ARTICLE
TWO
ORGANIZATION
Section
2.01. Name. The statutory trust created by the
Initial Trust Agreement and the filing of the Certificate of Trust and continued
hereby shall be known as “Wachovia Auto Loan Owner Trust 2007-1”, in which name
the Owner Trustee may conduct the business of the Issuer, make and execute
contracts and other instruments on behalf of the Issuer and ▇▇▇ and be sued
on
behalf of the Issuer, to the extent herein provided.
Section
2.02. Office. The office of the Issuer shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other address
in the State of Delaware as the Owner Trustee may designate by written notice
to
the Certificateholders and the Depositor.
Section
2.03. Purposes and Powers.
(a) The
purpose of the Issuer is, and the Issuer shall have the power and authority
to
engage in, the following activities:
(i) to
issue the Notes pursuant to the Indenture and the Certificates pursuant to
this
Agreement and to convey and deliver the Notes and the Certificates upon the
written order of the Depositor;
(ii) to
permit the Depositor to use, or to use, at the direction of the Depositor,
the
proceeds of the sale of the Notes to (A) purchase the Receivables to be acquired
on the Closing Date, (B) fund the Reserve Fund with an amount equal to the
Reserve Fund Deposit, (C) pay the organizational, start-up and transactional
expenses of the Issuer and (D) to pay the balance to the Depositor (or to
permit the Depositor to retain the balance, as applicable) pursuant to the
Sale
and Servicing Agreement;
(iii) to
pay interest on and principal of the Notes to the Noteholders and to cause
any
Excess Collections to be paid to the Certificateholders or otherwise in
accordance with the Indenture;
(iv) to
assign, grant, transfer, pledge, mortgage and convey the Owner Trust Estate
(other than the Certificate Payment Account and the proceeds thereof) to the
Indenture Trustee pursuant to the Indenture;
(v) to
enter into and perform its obligations under the Basic Documents to which it
is
to be a party;
(vi) to
engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith; and
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Noteholders and the
Certificateholders.
7
(b) The
Issuer may, at its discretion, actively invest in United States treasury
securities for the purpose of realizing a gain on such investments; provided,
however, that (i) the Issuer may not invest more than $100,000 in such
securities and (ii) the funds used to purchase such securities must not be
subject to the Lien of the Indenture.
(c) The
Issuer is hereby authorized to engage in the foregoing
activities. The Issuer shall not engage in any activities other than
in connection with the foregoing or other than as required or authorized by
the
terms of this Agreement and the other Basic Documents.
Section
2.04. Appointment of Owner Trustee. The Depositor
hereby confirms the appointment of the Owner Trustee as trustee of the Issuer
effective as of the date of creation of the Issuer, to have all the rights,
powers and duties set forth herein and in the Statutory Trust Statute, and
the
Owner Trustee hereby confirms its acceptance of such appointment.
The
Owner
Trustee may engage, in the name of the Issuer or in its own name on behalf
of
the Issuer, in the activities of the Issuer, make and execute contracts on
behalf of the Issuer and ▇▇▇ on behalf of the Issuer.
Section
2.05. Initial Capital Contribution of Owner Trust
Estate. As of October 10, 2006, the Depositor assigned,
transferred, conveyed and set over to the Owner Trustee the sum of
$1,000. The Owner Trustee hereby acknowledges receipt in trust from
the Depositor, as of such date, of the foregoing contribution, which amounts
constituted the initial Owner Trust Estate and were deposited in the Certificate
Payment Account. The Depositor shall pay the organizational expenses
of the Issuer as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section
2.06. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of the Issuer under the Basic
Documents. It is the intention of the parties hereto that
(i) the Issuer constitute a statutory trust under the Statutory Trust
Statute and that this Agreement constitute the governing instrument of such
statutory trust and (ii) solely for income and franchise tax purposes, the
Issuer shall be treated as either an entity that is disregarded as separate
from
the beneficial owner of the equity if there is only one such owner, or as a
partnership (other than an association or publicly traded partnership) if there
are two or more such owners, with the assets of the partnership being the
Receivables and other assets held by the Issuer, the partners of the partnership
being the Certificateholders and any holders of the Notes that are required
by
the IRS to be treated as equity in the Issuer, and the remaining Notes
constituting indebtedness of the partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, the Issuer will file or
cause
to be filed annual or other necessary returns, reports and other forms
consistent with the foregoing characterization of the Issuer for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute to accomplish the purposes of the Issuer as set forth in
Section 2.03(a). The Owner Trustee has filed the Certificate of
Trust with the Secretary of State.
8
Section
2.07. Liability of Certificateholders. The
Certificateholders shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations organized under
the
general corporation law of the State of Delaware.
Section
2.08. Title to Trust Property. Legal title to the
entirety of the Owner Trust Estate shall be vested at all times in the Issuer
as
a separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a trustee or
trustees, in which case title shall be deemed to be vested in the Owner Trustee,
a co-trustee or a separate trustee, as the case may be.
Section
2.09. Situs of Issuer. The Issuer will be located
and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Issuer shall be located in
the
States of Delaware, California, Nevada, North Carolina or New
York. The Issuer shall not have any employees in any State other than
the State of Delaware; provided, however, that nothing herein shall restrict
or
prohibit the Owner Trustee from having employees within or without the State
of
Delaware. Payments will be received by the Issuer only in, and
payments will be made by the Issuer only from, the States of Delaware,
California, North Carolina, Nevada or New York. The only office of
the Issuer will be at the Corporate Trust Office.
Section
2.10. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the
Owner Trustee that:
(a) The
Depositor has been duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Nevada, with power,
authority and legal right to own its properties and to conduct its business
as
such properties are currently owned and such business is presently conducted,
and had at all relevant times, and has the power, authority and legal right
to
acquire, own and sell the Receivables.
(b) The
Depositor is duly qualified to do business as a foreign limited liability
company in good standing and has obtained all necessary licenses and approvals
in each jurisdiction in which the failure to so qualify or to obtain such
licenses and approvals would materially and adversely affect the performance
by
the Depositor of its obligations under, or the validity or enforceability of,
this Agreement, any of the other Basic Documents to which it is a party, the
Receivables, the Notes or the Certificates.
(c) The
Depositor has the power and authority to execute, deliver and perform its
obligations under this Agreement and each other Basic Document to which it
is a
party; the Depositor has full power and authority to sell, assign, transfer
and
convey the property to be sold and assigned to and deposited with the Owner
Trustee as part of the Owner Trust Estate and the Depositor has duly authorized
such sale and assignment and deposit to the Issuer by all necessary limited
liability company action; and the execution, delivery and performance of this
Agreement and the other Basic Documents to which it is a party have been duly
authorized by the Depositor by all necessary limited liability company
action.
(d) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable in accordance with its terms, except as enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights in general and by general principles of equity,
regardless of whether such enforceability shall be considered in a proceeding
in
equity or at law.
9
(e) The
execution, delivery and performance by the Depositor of this Agreement and
each
other Basic Document to which the Depositor is a party, the consummation of
the
transactions contemplated hereby and thereby and the fulfillment of the terms
hereof and thereof do not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or without notice or lapse of
time
or both) a default under, the certificate of formation or limited liability
company agreement of the Depositor, or conflict with or violate any of the
material terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, agreement or other instrument to which
the Depositor is a party or by which it is bound or to which any of its
properties are subject; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents);
nor
violate any law or, to the best of the Depositor’s knowledge, any order of any
court, rule or regulation applicable to the Depositor or its properties or
of
any federal or State regulatory body, court, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties; which breach, default, conflict, Lien or violation would have a
material adverse effect on the earnings, business affairs or business prospects
of the Depositor.
(f) There
are no proceedings or investigations pending or, to the Depositor’s knowledge,
threatened against the Depositor before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties (i) asserting the invalidity of this
Agreement, any other Basic Document, the Notes or the Certificates,
(ii) seeking to prevent the issuance of the Notes or the Certificates or
the consummation of any of the transactions contemplated by this Agreement
or
any of the other Basic Documents, (iii) seeking any determination or ruling
that would materially and adversely affect the performance by the Depositor
of
its obligations under, or the validity or enforceability of, this Agreement,
any
of the other Basic Documents, the Receivables, the Notes or the Certificates
or
(iv) seeking any determination or ruling that would adversely affect the
federal tax attributes of the Issuer or of the Notes or the
Certificates.
(g) The
representations and warranties of the Depositor in Section 3.01 of the
Receivables Purchase Agreement are true and correct.
Section
2.11. Federal Income Tax Matters. The
Certificateholders acknowledge that it is their intent and that they understand
it is the intent of the Depositor and the Master Servicer that, for purposes
of
federal income, State and local income and franchise tax and any other income
taxes, the Issuer shall be treated as either an entity that is disregarded
as
separate from the beneficial owner of the equity in the Issuer if there is
only
one such owner, or as a partnership (other than an association or publicly
traded partnership) if there are two or more such owners, and income, gain
or
loss of the Issuer for such month as determined for federal, State and local
income and franchise tax purposes shall be allocated among the
Certificateholders as of the Record Date occurring within such month, in
proportion to their ownership of the Certificate Percentage Interest on such
date. The Depositor hereby agrees and each Certificateholder by
acceptance of a Certificate agrees to such treatment and each agrees to take
no
action inconsistent with the foregoing characterization.
10
The
Depositor is authorized to modify the allocations in this Section if necessary
or appropriate, in its sole discretion, for the allocations to reflect fairly
the economic income, gain or loss to the Certificateholders or as otherwise
required by the Code.
11
ARTICLE
THREE
CERTIFICATES
AND TRANSFER OF INTERESTS
Section
3.01. Initial Ownership. Upon the formation of the
Issuer by the contribution by the Depositor as described in Section 2.05
and until the issuance of the Certificates, the Depositor shall be the sole
beneficiary of the Issuer.
Section
3.02. The Certificates. The Certificates shall be
issued in one or more registered, definitive, physical certificates
substantially in the form of Exhibit A. The Certificates may be
in printed or typewritten form and shall be executed on behalf of the Issuer
by
manual or facsimile signature of an authorized officer of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer, shall be validly issued and entitled
to the benefits of this Agreement, notwithstanding that such individuals or
any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
If
Transfer of the Certificates is permitted pursuant to this Section and
Section 3.04, a transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee’s acceptance
of a Certificate duly registered in such transferee’s name pursuant to
Section 3.04.
Section
3.03. Authentication and Delivery of
Certificates. Concurrently with the sale of the Receivables to
the Issuer pursuant to the Sale and Servicing Agreement, the Owner Trustee
shall
cause the Certificates to be executed on behalf of the Issuer, authenticated
and
delivered to or upon the written order of the Depositor, signed by its
president, any Vice President, any assistant vice president, its treasurer,
any
assistant treasurer, its secretary or any assistant secretary, without further
limited liability company action by the Depositor. No Certificate
shall entitle the respective Certificateholder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or its authenticating agent, by
manual signature; and such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication. Upon issuance, authentication and delivery pursuant
to the terms hereof, the Certificates will be entitled to the benefits of this
Agreement.
Section
3.04. Registration, Transfer and Exchange of
Certificates.
(a) The
Owner Trustee initially shall be the registrar (the “Certificate Registrar”) for
the purpose of registering Certificates and Transfers of Certificates as herein
provided. The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.08, a register
(the “Certificate Register”) in which, subject to such reasonable regulations as
it may prescribe, the Certificate Registrar shall provide for the registration
of Certificates and the registration of Transfers of
Certificates. Upon any resignation of any Certificate Registrar, the
Owner Trustee shall, upon receipt of written instructions from the Depositor,
promptly appoint a successor thereto.
12
(b) The
Certificates may not be acquired by or for the account of a Benefit
Plan. Each Certificateholder, by its acceptance of a Certificate,
shall be deemed to have represented and warranted that such Certificateholder
is
not (i) a Benefit Plan and is not a Person acting on behalf of a Benefit
Plan or a Person using the assets of a Benefit Plan to effect the transfer
of
such Certificate or (ii) an insurance company purchasing a Certificate with
funds contained in an “insurance company general account” (as defined in
Section V(e) of PTCE 95-60) that includes the assets of a Benefit Plan for
purposes of the Plan Asset Regulation.
Any
Person who is not an Affiliate of the Seller and acquires more than 49.9% of
the
Certificates will be deemed to represent that it is not a party in interest
(within the meaning of ERISA) or a disqualified person (within the meaning
of
Section 4975(e)(2) of the Code) with respect to any Benefit Plan, other
than a Benefit Plan that it sponsors for the benefit of its employees, and
that
no Benefit Plan with respect to which it is a party in interest has or will
acquire any interest in the Notes.
To
the
extent permitted under applicable law (including ERISA), neither the Owner
Trustee nor the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of any Certificate that is in fact not
permitted under applicable law (including ERISA) or for taking any other action
with respect to such Certificate under the provisions of this Agreement so
long
as such Transfer was registered by the Owner Trustee or the Certificate
Registrar in accordance with this Agreement.
(c) Upon
surrender by a Certificateholder for registration of Transfer of any Certificate
at the office or agency of the Certificate Registrar to be maintained as
provided in Section 3.08, and upon compliance with any provisions of this
Agreement relating to such Transfer, the Owner Trustee shall execute on behalf
of the Issuer and the Owner Trustee shall authenticate and deliver to the
Certificateholder making such surrender, in the name of the designated
transferee or transferees, one or more new Certificates in any authorized
denomination evidencing the same aggregate interest in the
Issuer. Each Certificate presented or surrendered for registration of
Transfer shall be accompanied by a written instrument of transfer and
accompanied by IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-9, as applicable, in form
satisfactory to the Owner Trustee and the Certificate Registrar, duly executed
by the Certificateholder or his attorney duly authorized in
writing. Each Certificate presented or surrendered for registration
of Transfer shall be canceled and subsequently disposed of by the Certificate
Registrar in accordance with its customary practice. No service
charge shall be made for any registration of Transfer of Certificates, but
the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer of Certificates.
(d) All
Certificates surrendered for registration of Transfer, if surrendered to the
Issuer or any agent of the Owner Trustee or the Issuer under this Agreement,
shall be delivered to the Owner Trustee and promptly cancelled by it, or, if
surrendered to the Owner Trustee, shall be promptly cancelled by it, and no
Certificates shall be issued in lieu thereof except as expressly permitted
by
any of the provisions of this Agreement. The Owner Trustee shall
dispose of cancelled Certificates in accordance with its normal
practice.
13
Section
3.05. Mutilated, Destroyed, Lost or Stolen
Certificates.
(a) If
(i) any mutilated Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then, in the absence
of
notice that such Certificate has been acquired by a Protected Purchaser, the
Owner Trustee on behalf of the Issuer shall execute and the Owner Trustee or
its
authenticating agent shall authenticate and deliver, in exchange for or in
lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of a like tenor and Certificate Percentage Interest. If, after the
delivery of such replacement Certificate or payment of a destroyed, lost or
stolen Certificate, a Protected Purchaser of the original Certificate in lieu
of
which such replacement Certificate was issued presents for payment such original
Certificate, the Issuer and the Owner Trustee shall be entitled to recover
such
replacement Certificate (or such payment) from the Person to whom such
replacement Certificate was delivered or any Person taking such replacement
Certificate from such Person to whom such replacement Certificate was delivered
or any assignee of such Person, except a Protected Purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the Owner
Trustee in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership
in
the Issuer, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
(b) Upon
the issuance of any replacement Certificate under this Section, the Issuer
may
require the payment by the Certificateholder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with such
issuance and any other reasonable expenses (including the fees and expenses
of
the Owner Trustee) related thereto.
(c) Every
replacement Certificate issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement equally
and
proportionately with any and all other Certificates duly issued
hereunder.
(d) The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Certificates.
Section
3.06. Persons Deemed Certificateholders. Prior to
due presentation of a Certificate for registration of Transfer, the Owner
Trustee, the Certificate Registrar, any Paying Agent and any of their respective
agents may treat the Person in whose name such Certificate is registered in
the
Certificate Register (as of the day of determination) as the Certificateholder
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.02 and for all other purposes whatsoever, and none of the Owner
Trustee, the Certificate Registrar, any Paying Agent or any of their respective
agents shall be bound by any notice to the contrary.
14
Section
3.07. Access to List of Certificateholders’ Names and
Addresses. The Certificate Registrar shall furnish or cause to be
furnished to the Master Servicer and the Depositor, or to the Indenture Trustee
or the Owner Trustee, within 15 days after receipt by the Certificate Registrar
of a written request therefor from the Master Servicer, the Depositor or the
Indenture Trustee or the Owner Trustee, as the case may be, a list, in such
form
as the requesting party may reasonably require, of the names and addresses
of
the Certificateholders as of the most recent Record Date. If three or
more Certificateholders, or one or more Certificateholders evidencing not less
than 25% of the aggregate Certificate Percentage Interest (hereinafter referred
to as the “Applicants”), apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such Applicants propose to transmit (which shall be deemed
to
be a purpose reasonably related to the Applicants’ interest in the Issuer), then
the Certificate Registrar shall, within five Business Days after the receipt
of
such application, afford such Applicants access during normal business hours
to
the current list of Certificateholders. Each Certificateholder, by
receiving and holding a Certificate, shall be deemed to have agreed not to
hold
any of the Depositor, the Certificate Registrar or the Owner Trustee accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
Section
3.08. Maintenance of Office or Agency. The
Certificate Registrar shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of Transfer or exchange
and where notices and demands to or upon the Certificate Registrar in respect
of
the Certificates and the Basic Documents may be served. The
Certificate Registrar initially designates the Corporate Trust Office as its
office for such purposes. The Certificate Registrar shall give prompt
written notice to the Depositor, the Owner Trustee and the Certificateholders
of
any change in the location of the Certificate Registrar or any such office
or
agency.
Section
3.09. Appointment of Paying Agent. The Paying Agent
shall make distributions to Certificateholders from the Certificate Payment
Account pursuant to Section 5.02(a) and shall report the amount of such
distributions to the Owner Trustee. The Paying Agent shall have the
revocable power to withdraw funds from the Certificate Payment Account for
the
purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Indenture Trustee,
and any co-paying agent chosen by the Paying Agent that is acceptable to the
Owner Trustee and the Depositor. Each Paying Agent shall be permitted
to resign as Paying Agent upon 30 days’ prior written notice to the Owner
Trustee. In the event that the Indenture Trustee shall no longer be
the Paying Agent, the Owner Trustee, upon receipt of written instruction from
the Depositor, shall appoint a successor to act as Paying Agent (which shall
be
a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which
such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that, as Paying Agent, such successor or additional Paying Agent will
hold all sums, if any, held by it for payment to the Certificateholders in
trust
for the benefit of the Certificateholders entitled thereto until such sums
shall
be paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner
Trustee. If at any time the Owner Trustee shall act as Paying Agent,
the rights, privileges, protections and indemnities afforded to the Owner
Trustee hereunder shall apply equally to the Owner Trustee in its role as Paying
Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
15
Section
3.10. Certificates Nonassessable and Fully
Paid. Certificateholders shall not be personally liable for
obligations of the Issuer. The interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Issuer
or
for any reason whatsoever, and, upon the authentication thereof by the Owner
Trustee pursuant to Section 3.03, 3.04 or 3.05, the Certificates are and
shall be deemed fully paid.
16
ARTICLE
FOUR
ACTIONS
BY OWNER TRUSTEE
Section
4.01. Prior Notice to Certificateholders with Respect to Certain
Matters. Subject to the provisions and limitations of
Section 4.04, with respect to the following matters, the Owner Trustee
shall not take action unless at least 30 days before the taking of such action,
the Owner Trustee shall have notified the Certificateholders, the Swap
Counterparty and the Rating Agencies that have provided ratings of the Notes,
in
writing of the proposed action and the Certificateholders evidencing not less
than 51% of the aggregate Certificate Percentage Interest shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is
given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the
initiation of any claim or lawsuit by the Issuer and the settlement of any
action, proceeding, investigation, claim or lawsuit brought by or against the
Issuer, in each case (except claims or lawsuits for collection by the Master
Servicer of the Receivables brought by the Issuer);
(b) the
election by the Issuer to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interests of the Certificateholders;
(e) the
amendment of the Sale and Servicing Agreement or the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
or to add any provision that would not materially adversely affect the interests
of the Certificateholders;
(f) the
amendment of the Swap Agreement (which amendment shall be made with the consent
of the Swap Counterparty); or
(g) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Note Registrar,
Paying Agent, Indenture Trustee or Certificate Registrar of its respective
obligations under the Indenture or this Agreement, as applicable.
Section
4.02. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of
a Servicer Termination Event, subsequent to the payment in full of the Notes
and
in accordance with the written direction of the Certificateholders evidencing
not less than 51% of the aggregate Certificate Percentage Interest,
(i) remove the Master Servicer pursuant to Article Seven of the Sale
and Servicing Agreement, (ii) appoint a Successor Servicer pursuant to
Article Seven of the Sale and Servicing Agreement, (iii) remove the
Administrator pursuant to Section 1.09 of the Administration Agreement,
(iv) appoint a successor Administrator pursuant to Section 1.09 of the
Administration Agreement or (v) sell the Receivables after the termination
of the Indenture, except as expressly provided in the Basic
Documents.
17
Section
4.03. Action by Certificateholders with Respect to
Bankruptcy. The Owner Trustee shall not have the power to
commence a voluntary proceeding in bankruptcy relating to the Issuer unless
(i) the Notes have been paid in full and (ii) each Certificateholder
approves of such commencement in writing in advance and delivers to the Owner
Trustee a certificate certifying that such Person reasonably believes that
the
Issuer is insolvent.
Section
4.04. Restrictions on Certificateholders’
Power. The Certificateholders shall not direct the Owner Trustee
to take or refrain from taking any action if such action or inaction would
be
contrary to any obligation of the Issuer or the Owner Trustee under this
Agreement or any of the other Basic Documents or would be contrary to the
purposes of the Issuer as set forth in Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
Section
4.05. Majority Control. Except as expressly
provided herein, any action that may be taken by the Certificateholders under
this Agreement may be taken by the Certificateholders evidencing not less than
51% of the aggregate Certificate Percentage Interest. Except as
expressly provided herein, any written notice of the Certificateholders
delivered pursuant to this Agreement shall be effective if signed by
Certificateholders evidencing not less than 51% of the aggregate Certificate
Percentage Interest at the time of the delivery of such notice.
Section
4.06. Certain Litigation Matters. The Owner Trustee
shall provide prompt written notice to the Depositor, the Seller and the Master
Servicer of any action, proceeding or investigation actually known to a
Responsible Officer of the Owner Trustee that could reasonably be expected
to
adversely affect the Issuer or the Owner Trust Estate or their respective rights
or obligations under any of the Basic Documents.
18
ARTICLE
FIVE
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
5.01. Establishment of Certificate Payment
Account. Pursuant to Section 4.01 of the Sale and Servicing
Agreement, the Master Servicer has agreed to establish, on or before the Closing
Date, and maintain in the name of the Owner Trustee at an Eligible Institution
(which shall initially be U.S. Bank National Association) a segregated account
designated as the “Wachovia Auto Loan Owner Trust 2007-1 Certificate Payment
Account” (the “Certificate Payment Account”). The Certificate Payment
Account shall be held in trust for the benefit of the
Certificateholders. Except as expressly provided in
Section 3.09, the Certificate Payment Account shall be under the sole
dominion and control of the Owner Trustee. All monies deposited from
time to time in the Certificate Payment Account pursuant to the Sale and
Servicing Agreement or the Indenture shall be applied as provided in this
Agreement, the Sale and Servicing Agreement and the Indenture.
Section
5.02. Application of Trust Funds.
(a) On
each Distribution Date, upon receipt from the Master Servicer of a distribution
statement pursuant to Section 4.10(a) of the Sale and Servicing Agreement,
the Owner Trustee shall (if at any time it is the Paying Agent) or shall direct
the Paying Agent to distribute to the Certificateholders, in proportion to
each
Certificateholder’s Certificate Percentage Interest, amounts deposited in the
Certificate Payment Account on such Distribution Date pursuant to
Section 4.09 of the Sale and Servicing Agreement and Section 2.08 of
the Indenture.
(b) On
each Distribution Date, the Owner Trustee shall (if at any time it is the Paying
Agent), or shall direct the Paying Agent to, send to each Certificateholder
the
statement or statements provided to the Owner Trustee by the Master Servicer
pursuant to Section 4.10 of the Sale and Servicing Agreement with respect
to such Distribution Date.
(c) In
the event that any withholding tax is imposed on the Issuer’s payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to such Certificateholder in accordance with this
Section. The Owner Trustee and each Paying Agent are hereby
authorized and directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any such withholding
tax
that is legally owed by the Issuer (but such authorization shall not prevent
the
Owner Trustee or any Paying Agent from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings, it being understood that neither the Owner
Trustee nor any Paying Agent shall have any duty to contest such
amounts). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Issuer and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is payable
with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee or any Paying Agent may, but shall not
be
obligated to, withhold such amounts in accordance with this
Section. If a Certificateholder wishes to apply for a refund of any
such withholding tax, the Owner Trustee and each Paying Agent shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee and each Paying Agent
for any out-of-pocket expenses incurred, as applicable.
19
Section
5.03. Method of Payment. Subject to
Section 9.01(c), distributions required to be made to Certificateholders on
any Distribution Date shall be made to each Certificateholder of record on
the
related Record Date by wire transfer, in immediately available funds, to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar and the Paying Agent appropriate written instructions
at
least five Business Days prior to such Distribution Date and such
Certificateholder is the Seller or an Affiliate thereof or, if not, by check
mailed to such Certificateholder at the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the foregoing,
the final distribution in respect of any Certificate (whether on the Final
Scheduled Distribution Date or otherwise) will be payable only upon presentation
and surrender of such Certificate at the office or agency maintained for that
purpose by the Certificate Registrar pursuant to Section 3.08.
Section
5.04. No Segregation of Monies; No
Interest. Subject to Sections 5.01 and 5.02, monies received by
the Owner Trustee hereunder (other than any monies constituting Excluded
Property) need not be segregated in any manner except to the extent required
by
law, the Indenture, the Sale and Servicing Agreement or the Swap Agreement
and
may be deposited under such general conditions as may be prescribed by law,
and
the Owner Trustee shall not be liable for any interest thereon.
Section
5.05. Accounting and Reports to Noteholders, Certificateholders,
the IRS and Others. The Owner Trustee shall, upon receipt of and
based on information provided by the Seller or the Master Servicer,
(i) maintain (or cause to be maintained) the books of the Issuer on the
basis of a fiscal year ending December 31 and, based on the accrual method
of accounting, (ii) deliver to each Certificateholder, as may be required
by the Code and applicable Treasury Regulations, such information as may be
required (including Schedule K-1) to enable such Certificateholder to prepare
its federal and State income tax returns, (iii) file such tax returns
relating to the Issuer (including a partnership information return, IRS
Form 1065, if required) and make such elections as may from time to time be
required or appropriate under any applicable State or federal statute or rule
or
regulation thereunder so as to maintain the Issuer’s characterization as a
partnership, if so characterized, for federal income tax purposes,
(iv) cause such tax returns to be signed in the manner required by law and
(v) collect or cause to be collected any withholding tax as described in
and in accordance with Section 5.02(c) with respect to income or
distributions to Certificateholders. The Owner Trustee, on behalf of
the Issuer, shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the
Receivables. The Owner Trustee, on behalf of the Issuer, shall not
make the election provided under Section 754 of the Code.
The
Owner
Trustee may satisfy its obligations with respect to this Section and
Section 5.02(c) by retaining, at the expense of the Seller, Accountants
selected by the Seller. The Owner Trustee may require the Accountants
to provide to the Owner Trustee, on or before December 31, 2007, a letter in
form and substance satisfactory to the Owner Trustee as to whether any federal
tax withholding on Certificates is then required and, if required, the
procedures to be followed with respect thereto to comply with the requirements
of the Code. The Accountants shall be required to update such letter
in each instance that any additional tax withholding is subsequently required
or
any previously required tax withholding shall no longer be
required. The Owner Trustee shall be deemed to have discharged its
obligations pursuant to this Section and Section 5.02(c) upon its retention
of the Accountants, and the Owner Trustee shall not have any liability with
respect to the default, negligence or misconduct of the
Accountants. The Owner Trustee shall be entitled to rely on and shall
be fully protected in so relying, upon the letter, referred to in this
paragraph, from the Accountants and shall have no duty or obligation to verify
the accuracy of the contents of such letter.
20
Section
5.06. Signature on Returns; Tax Matters Partner.
(a) The
Owner Trustee shall sign, on behalf of the Issuer, the tax returns of the Issuer
upon receipt of such completed tax returns.
(b) In
the event that the Issuer is required to be treated as a partnership for federal
income tax purposes, WDS Receivables, or the Holder of the greatest percentage
interest of the Certificates, in the event that WDS Receivables no longer owns
any Certificates, shall be designated the “tax matters partner” of the Issuer
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
21
ARTICLE
SIX
AUTHORITY
AND DUTIES OF OWNER TRUSTEE
Section
6.01. General Authority. Subject to the provisions
and limitations of Section 2.03, the Owner Trustee is authorized and
directed to execute and deliver each Basic Document to which the Issuer is
to be
a party and each certificate or other document attached as an exhibit to or
contemplated by any Basic Document to which the Issuer is to be a party, in
each
case in such form as the Depositor shall approve and provide to the Owner
Trustee for execution, as evidenced conclusively by the Owner Trustee’s
execution thereof and the Depositor’s execution of this Agreement, and to direct
the Indenture Trustee to authenticate and deliver Notes in the aggregate
principal amount of $2,000,000,000 (comprised of $384,000,000 aggregate
principal amount of 5.3372% Class A-1 Asset Backed Notes, $613,000,000 aggregate
principal amount of 5.36% Class A-2 Asset Backed Notes, $200,000,000 aggregate
principal amount of 5.29% Class A-3a Asset Backed Notes, $518,000,000
aggregate principal amount of LIBOR plus 0.02% Class A-3b Asset
Backed Notes, $75,000,000 aggregate principal amount of 5.38%
Class B Asset Backed Notes, $80,000,000 aggregate principal amount
of 5.45% Class C Asset Backed Notes, $80,000,000 aggregate
principal amount of 5.65% Class D Asset Backed Notes, and $50,000,000
aggregate principal amount of 6.92% Class E Asset Backed
Notes). In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Issuer pursuant to the Basic Documents. Subject to Section 2.03,
the Owner Trustee is further authorized from time to time to take such action
on
behalf of the Issuer as is permitted by the Basic Documents and which the
Certificateholders, the Master Servicer or the Administrator recommends in
writing with respect to the Basic Documents, except to the extent that this
Agreement expressly requires the consent of the Certificateholders for such
action.
Section
6.02. General Duties.
(a) Subject
to the provisions and limitations of Section 2.03, it shall be the duty of
the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and each other Basic
Document to which it is a party and to administer the Issuer for the benefit
of
the Certificateholders, subject to and in accordance with the Basic
Documents. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged (or caused to be discharged) its duties and
responsibilities hereunder and under the other Basic Documents to the extent
the
Administrator has agreed in the Administration Agreement to perform any act
or
to discharge any duty of the Owner Trustee or the Issuer hereunder or under
any
other Basic Document, and the Owner Trustee shall not be held liable for the
default, negligence or failure of the Administrator to carry out its obligations
under the Administration Agreement. The Owner Trustee shall have no
duty or obligation to oversee the Administrator in the exercise of its duties
or
obligations under the Administration Agreement.
(b) The
Owner Trustee shall cooperate with the Administrator in carrying out the
Administrator’s obligation to qualify and preserve the Issuer’s qualification to
do business in each jurisdiction, if any, in which such qualification is or
shall be necessary to protect the validity and enforceability of the Indenture,
the Notes, the Receivables and any other instrument and agreement included
in
the Owner Trust Estate; provided that the Owner Trustee may rely on advice
of
counsel with respect to such obligation.
22
Section
6.03. Action Upon Instruction.
(a) Subject
to Article Four, and in accordance with the terms of the Basic Documents,
the Certificateholders may, by written instruction, direct the Owner Trustee
in
the management of the Issuer.
(b) The
Owner Trustee shall not be required to take any action under this Agreement
or
any other Basic Document if the Owner Trustee shall have reasonably determined,
or shall have been advised by counsel, that such action is likely to result
in
liability on the part of the Owner Trustee or is contrary to the terms of this
Agreement or any other Basic Document or is otherwise contrary to
law.
(c) Subject
to Article Four, whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date, requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts in good faith in accordance with any written instruction
of
the Certificateholders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not
have received appropriate written instruction within ten days of such notice
(or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) Subject
to Article Four, in the event the Owner Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document
or
any such provision is ambiguous as to its application, or is, or appears to
be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee may give notice
(in
such form as shall be appropriate under the circumstances) to the
Certificateholders of record as of the preceding Record Date, requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the
Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate
written instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders and shall have no liability to any Person for such action
or
inaction.
23
Section
6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of, or otherwise deal with the Owner Trust Estate, or to otherwise
take
or refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee or the Issuer is a party, except
as expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Agreement or any
other Basic Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or Lien granted to it hereunder or to
prepare or file any Commission filing for the Issuer or to record this Agreement
or any other Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may
be
necessary to discharge any Liens (other than the Lien of the Indenture) on
any
part of the Owner Trust Estate that result from actions by, or claims against,
the Owner Trustee in its individual capacity that are not related to the
ownership or the administration of the Owner Trust Estate.
Section
6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use,
sell, dispose of or otherwise deal with any part of the Owner Trust Estate
except in accordance with (i) the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Agreement, (ii) the other
Basic Documents to which the Issuer is a party and (iii) any document or
written instruction delivered to the Owner Trustee pursuant to
Section 6.03.
Section
6.06. Restrictions. The Owner Trustee shall not
take any action that (i) is inconsistent with the purposes of the Issuer
set forth in Section 2.03 or (ii) to the actual knowledge of a
Responsible Officer of the Owner Trustee, would (a) affect the treatment of
the Notes as indebtedness for federal income or State income or franchise tax
purposes, (b) be deemed to cause a taxable exchange of the Notes for
federal income or State income or franchise tax purposes or (c) cause the
Issuer or any portion thereof to be taxable as an association or publicly traded
partnership taxable as a corporation for federal income or State income or
franchise tax purposes. The Certificateholders, the Administrator and
the Master Servicer shall not direct the Owner Trustee to take action that
would
violate the provisions of this Section.
24
ARTICLE
SEVEN
THE
OWNER
TRUSTEE
Section
7.01. Acceptance of Duties. The Owner Trustee
accepts the trust hereby continued and agrees to perform its duties hereunder,
but only upon the terms of this Agreement. The Owner Trustee also
agrees to disburse all monies actually received by it in accordance with the
Basic Documents and constituting part of the Owner Trust Estate upon the terms
of this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence or
(ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee, in its
individual capacity. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) the
Owner Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer of the Owner Trustee unless it is proved that the
Owner
Trustee was negligent in ascertaining the pertinent facts;
(b) the
Owner Trustee shall not be liable with respect to any action taken or omitted
to
be taken in good faith by it in accordance with the provisions of this Agreement
at the instructions of the Administrator, the Depositor, the Indenture Trustee,
the Master Servicer or the Certificateholders;
(c) no
provision of this Agreement or any other Basic Document shall require the Owner
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers hereunder or under any other Basic Document
if
the Owner Trustee shall have reasonable grounds for believing that repayment
of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under
no circumstances shall the Owner Trustee be liable for indebtedness evidenced
by
or arising under any Basic Document, including the principal of and interest
on
the Notes or payments to the Certificateholders;
(e) the
Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement or for the due execution hereof by the Depositor
or for the form, character, genuineness, sufficiency, value or validity of
any
of the Owner Trust Estate, or for or in respect of the validity or sufficiency
of the Basic Documents, other than the signature and the certificate of
authentication of the Owner Trustee on the Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty or obligation to any
Noteholder or Certificateholder, other than as expressly provided for in the
Basic Documents;
(f) the
Owner Trustee shall not be liable for the default, negligence or misconduct
of
the Administrator, the Depositor, any Certificateholder, the Indenture Trustee,
the Master Servicer or the Seller under any Basic Document or otherwise, and
the
Owner Trustee shall have no obligation or liability to perform the obligations
of the Issuer under this Agreement or the other Basic Documents that are
required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Seller, the Master
Servicer or the Depositor under the Sale and Servicing Agreement;
25
(g) the
Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement
or
any other Basic Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses
and
liabilities that may be incurred by the Owner Trustee therein or thereby, the
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any other Basic Document shall not be construed as a duty,
and
the Owner Trustee shall not be answerable other than for its negligence, bad
faith or willful misconduct in the performance of any such act;
(h) the
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or any other Basic Document shall not be construed as a duty, and
the
Owner Trustee shall not be answerable other than for its willful misconduct,
bad
faith or negligence in the performance of any such act;
(i) the
Owner Trustee shall have no responsibility for the accuracy of any information
provided to Certificateholders or any other individual or entity that has been
obtained from, or provided to the Owner Trustee by, any other
Person;
(j) in
the absence of negligence or bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or Opinions of Counsel furnished to the
Owner Trustee and conforming to the requirements of this Agreement in
determining the truthfulness of the statements and the correctness of the
opinions contained therein; provided, however, that the Owner Trustee shall
have
examined such certificates or Opinions of Counsel so as to determine compliance
of the same with the requirements of this Agreement; and
(k) the
Owner Trustee shall incur no liability if, by reason of any provision of any
present or future law or regulation thereunder, or by any force majeure event,
including natural disaster, war or other circumstances beyond its reasonable
control, the Owner Trustee shall be prevented from doing or performing any
act
or thing which the terms of this Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
directions provided for herein.
Section
7.02. Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholders, promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents.
26
Section
7.03. Representations and Warranties. The Owner
Trustee, in its individual capacity, hereby represents and warrants to the
Depositor for the benefit of the Certificateholders, that:
(a) it
is a Delaware banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and meets the eligibility
criteria set forth in Section 10.01;
(b) it
has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement;
(c) it
has taken all corporate action necessary to authorize the execution and delivery
by it of this Agreement, and this Agreement will be executed and delivered
by
one of its officers who is duly authorized to execute and deliver this Agreement
on its behalf; and
(d) neither
the execution nor the delivery by it of this Agreement, nor the consummation
by
it of the transactions contemplated hereby, nor compliance by it with any of
the
terms or provisions hereof will contravene any federal or Delaware law,
governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, constitute any default
under its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound or result in the creation or imposition of any lien, charge or
encumbrance on the Owner Trust Estate pursuant to the provisions of any
mortgage, indenture, contract, agreement or undertaking to which it is a party
(other than the Basic Documents), which lien, charge or encumbrance could
reasonably be expected to have a materially adverse effect on the Owner
Trustee’s performance or ability to perform its duties as trustee under this
Agreement or on the transactions contemplated in this Agreement.
Section
7.04. Reliance; Advice of Counsel.
(a) The
Owner Trustee may rely upon, shall be protected in relying upon and shall incur
no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties and need not investigate any fact or matter
in
any such document as long as the Owner Trustee has otherwise satisfied its
obligations under this Agreement (nothing in this sentence shall be construed
to
relieve the Owner Trustee of any obligation it may have in this Agreement,
including the obligations set forth in Section 7.01). The Owner
Trustee may accept a certified copy of a resolution of the board of directors
or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any Vice
President or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by
it in good faith in reliance thereon.
27
(b) In
the exercise or administration of the trusts hereunder and in the performance
of
its duties and obligations under this Agreement or the other Basic Documents,
the Owner Trustee may (i) act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the Owner Trustee
shall not be liable for the conduct or misconduct of such agents or attorneys
if
such agents or attorneys shall have been selected by the Owner Trustee with
reasonable care and (ii) consult with counsel, accountants and other
skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered
or omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such Persons and not contrary to
this
Agreement or any other Basic Document.
Section
7.05. Not Acting in Individual Capacity. Except as
otherwise provided in this Article, in accepting the trusts hereby created,
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any other Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section
7.06. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the
Certificates (other than the signature and the certificate of authentication
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Basic Document, the
Certificates (other than the signature and the certificate of authentication
of
the Owner Trustee on the Certificates and the representations and warranties
in
Section 7.03) or the Notes, or of any Receivable or related
documents. The Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to the
Certificateholders under this Agreement or to the Noteholders under the
Indenture, including the existence, condition and ownership of any Financed
Vehicle; the existence and enforceability of any insurance thereon; the
existence and contents of any Receivable on any computer or other record
thereof; the validity of the assignment of any Receivable to the Issuer or
of
any intervening assignment; the completeness of any Receivable; the performance
or enforcement of any Receivable; the compliance by the Depositor, the Seller
or
the Master Servicer with any warranty or representation made under any Basic
Document or in any related document, or the accuracy of any such warranty or
representation, or any action of the Administrator, the Indenture Trustee or
the
Master Servicer taken in the name of the Owner Trustee.
Section
7.07. Owner Trustee May Own Certificates and
Notes. The Owner Trustee in its individual or any other capacity
may become a Certificateholder or Noteholder or pledgee of Certificates or
Notes
and may deal with the Depositor, the Administrator, the Indenture Trustee,
the
Seller and the Master Servicer in banking transactions with the same rights
as
it would have if it were not Owner Trustee.
28
Section
7.08. Paying Agent; Authenticating Agent. The
rights and protections afforded to the Owner Trustee pursuant to this
Article and Sections 8.02, 10.02 and 10.03 shall also be afforded to each
Paying Agent, any authenticating agent and the Certificate
Registrar.
29
ARTICLE
EIGHT
COMPENSATION
AND INDEMNIFICATION OF OWNER TRUSTEE
Section
8.01. Owner Trustee’s Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees
as
have been separately agreed upon before the date hereof between the Master
Servicer and the Owner Trustee, and upon the formation of the Issuer, the Owner
Trustee shall be entitled to be reimbursed, except as otherwise provided in
the
Basic Documents, by the Master Servicer for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements
of
such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder.
Section
8.02. Indemnification. Wachovia Bank shall be
liable as prime obligor for, and shall indemnify the Indemnified Parties from
and against, any and all Expenses, which may at any time be imposed on, incurred
by, or asserted against the Owner Trustee or any other Indemnified Party in
any
way relating to or arising out of this Agreement, the other Basic Documents,
the
Owner Trust Estate, the administration of the Owner Trust Estate or the action
or inaction of the Owner Trustee hereunder; provided, however, that Wachovia
Bank shall not be liable for or required to indemnify an Indemnified Party
from
and against Expenses arising or resulting from any of the matters described
in
the third sentence of Section 7.01. In no event will Wachovia
Bank or the Owner Trustee be entitled to make any claim upon the Owner Trust
Estate for the payment or reimbursement of any Expenses. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this
Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee’s choice of
legal counsel shall be subject to the approval of Wachovia Bank, which approval
shall not be unreasonably withheld.
Section
8.03. Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article shall be deemed not to
be a part of the Owner Trust Estate immediately after such payment.
30
ARTICLE
NINE
TERMINATION
OF TRUST AGREEMENT
Section
9.01. Termination of Trust Agreement.
(a) This
Agreement (other than the provisions of Article Eight) shall terminate and
be of no further force or effect and the Issuer shall dissolve upon the earlier
of (i) the payment to the Master Servicer, the Paying Agent, the Owner
Trustee, the Indenture Trustee, the Swap Counterparty, the Noteholders and
the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement, the Swap Agreement
and
Article Five, (ii) the Distribution Date next succeeding the month
which is one year after the maturity or other liquidation of the last Receivable
and the disposition of any amounts received upon liquidation of any property
remaining in the Issuer or (iii) upon the purchase of the Receivables by
the Seller in connection with an Optional Purchase and retirement of the Notes
and Certificates. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Issuer, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the
Issuer or the Owner Trust Estate or (iii) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except
as provided in Section 9.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the
Issuer.
(c) Notice
of any termination of the Issuer, specifying the Distribution Date upon which
Certificateholders shall surrender their Certificates to the Paying Agent for
payment of the final distribution and cancellation, shall be given by the Owner
Trustee by letter to Certificateholders mailed within five Business Days of
receipt of notice of such termination from the Master Servicer, stating
(i) the Distribution Date upon or with respect to which final payment of
the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable and that payments are
being made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall
give such notice to the Certificate Registrar (if other than the Owner Trustee),
the Paying Agent and the Swap Counterparty at the time such notice is given
to
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders, subject to Section 3808 of the Statutory Trust Statute,
amounts distributable on such Distribution Date pursuant to
Section 5.02.
(d) In
the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates
for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to
applicable escheat laws, any funds remaining in the Issuer after exhaustion
of
such remedies shall be distributed by the Owner Trustee to the Seller, as
Certificateholder.
31
(e) Upon
the winding up of the Issuer, in accordance with Section 3808 of the
Statutory Trust Statute, and its termination, the Owner Trustee, acting pursuant
to the written instructions of the Depositor, which instructions shall certify
that the winding up of the Issuer has been duly completed in accordance with
this Article, shall cause the Certificate of Trust to be cancelled by filing
a
certificate of cancellation with the Secretary of State in accordance with
the
provisions of Section 3810(d) of the Statutory Trust Statute.
32
ARTICLE
TEN
SUCCESSOR
AND ADDITIONAL OWNER TRUSTEES
Section
10.01. Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times (i) be
authorized to exercise corporate trust powers, (ii) have a combined capital
and surplus of at least $50,000,000 and be subject to supervision or examination
by federal or State authorities and (iii) have (or have a parent that has)
a long-term debt rating of investment grade by each of the Rating Agencies
or
otherwise be acceptable to each of the Rating Agencies. If such
entity shall publish reports of condition at least annually pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published. If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in
Section 10.02.
Section
10.02. Resignation or Removal of Owner Trustee.
(a) The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator and the Depositor,
and will provide to the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under the
Exchange Act with respect to the resignation of the Owner
Trustee. Upon receiving such notice of resignation, the Administrator
shall promptly appoint a successor Owner Trustee acceptable to the Depositor
by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice
of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
(b) If
at any time the Owner Trustee shall: (i) cease to be eligible in accordance
with Section 10.01 and shall fail to resign after written request therefor
by the Administrator, or if at any time the Owner Trustee shall be legally
unable to act; (ii) be adjudged bankrupt or insolvent, or a receiver of the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; (iii) fail to
comply with any of its obligations under Section 10.02, Section 10.04 or Section
11.03 of this Agreement, during the period that the Depositor is required to
file Exchange Act Reports with respect to the Issuer and such failure is not
remedied within the lesser of ten calendar days and the period of time in which
the related Exchange Act Report is required to be filed (without taking into
account any extensions) or (iv) otherwise become incapable of acting, then
the Administrator or the Depositor may remove the Owner Trustee. If
the Administrator or Depositor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee acceptable to the Depositor by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the successor
Owner Trustee, and shall pay all fees and expenses owed to the outgoing Owner
Trustee.
33
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each Rating Agency that
has
provided ratings of the Notes, the Depositor, the Certificateholders, the Swap
Counterparty and the Indenture Trustee.
Section
10.03. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement and deliver to the Depositor
in
writing and in form and substance reasonably satisfactory to the Depositor,
all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under the Exchange Act with respect to the successor Owner
Trustee, and thereupon, subject to the payment of all fees and expenses owed
to
the predecessor Owner Trustee, the resignation or removal of the predecessor
Owner Trustee shall become effective, and such successor Owner Trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver
to
the successor Owner Trustee all documents and statements and monies held by
it
under this Agreement and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and
obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Owner Trustee shall be
eligible pursuant to Section 10.01.
Any
successor Owner Trustee appointed pursuant to this Section shall file an
amendment to the Certificate of Trust with the Secretary of State reflecting
the
name and principal place of business of such successor in the State of
Delaware.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section,
the Administrator shall mail notice thereof to all Certificateholders, the
Indenture Trustee, the Noteholders, the Swap Counterparty and each Rating Agency
that has provided ratings of the Notes. If the Administrator shall
fail to mail such notice within ten days after acceptance of such appointment
by
the successor Owner Trustee, the successor Owner Trustee shall cause such notice
to be mailed at the expense of the Administrator.
Section
10.04. Merger or Consolidation of Owner Trustee.
(a) If
the Owner Trustee consolidates with, merges or converts into, or transfers
all
or substantially all its corporate trust business or assets to, another entity,
the resulting, surviving or transferee corporation or banking association
without any further act, except the filing of an amendment to the Certificate
of
Trust, if required under the Statutory Trust Statute, shall be the successor
Owner Trustee; provided, however, that such corporation or banking association
must be otherwise qualified and eligible under
Section 10.01. The Owner Trustee shall (i) provide the
Rating Agencies that have provided ratings of the Notes with written notice
as
soon as practicable after a public announcement is made regarding any such
transaction, (ii) file an amendment to the Certificate of Trust as required
by Section 9.03 (if required under the Statutory Trust Statute) and
(iii) provide the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under the Exchange
Act with respect to the successor Owner Trustee.
34
(b) If
any of the Certificates shall have been authenticated but not delivered at
the
time such successor or successors by consolidation, merger or conversion to
the
Owner Trustee shall succeed to the trusts created by this Agreement, any such
successor to the Owner Trustee may adopt the certificate of authentication
of
any predecessor trustee and deliver such Certificates so
authenticated. If any of the Certificates shall not have been
authenticated upon such succession, any such successor to the Owner Trustee
may
authenticate such Certificates either in the name of any predecessor trustee
or
in the name of the successor to the Owner Trustee. In all such cases
such certificates shall have the full force which the Certificates or this
Agreement provide that the certificate of the Owner Trustee shall
have.
Section
10.05. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provision of this Agreement,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any Financed Vehicle
may at the time be located, the Administrator and the Owner Trustee acting
jointly shall have the power and shall execute and deliver all instruments
to
appoint one or more Persons approved by the Administrator and Owner Trustee
to
act as co-trustee, jointly with the Owner Trustee, or as separate trustee or
separate trustees, of all or any part of the Owner Trust Estate, and to vest
in
such Person, in such capacity and for the benefit of the Certificateholders,
such title to the Owner Trust Estate or any part thereof and, subject to the
other provisions of this Section, such powers, duties, obligations, rights
and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor Owner Trustee pursuant to
Section 10.01, except that such co-trustee or successor trustee shall have
the Required Rating or otherwise be acceptable to each Rating Agency, and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) all
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred or imposed upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts
are
to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Owner Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Owner Trustee;
35
(b) no
trustee under this Agreement shall be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
(c) the
Administrator and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed
with the Owner Trustee and a copy thereof given to the
Administrator.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
36
ARTICLE
ELEVEN
REGULATION
AB
Section
11.01. Intent of the Parties; Reasonableness.
(a) The
Depositor and the Owner Trustee acknowledge and agree that the purpose of this
Article Eleven is to facilitate compliance by the Depositor with the provisions
of Regulation AB and related rules and regulations of the
Commission. The Depositor shall not exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than the Depositor’s compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable
to
that required under the Securities Act). The Owner Trustee agrees to
cooperate in good faith with any reasonable request by the Depositor for
information regarding the Owner Trustee which is required in order to enable
the
Depositor to comply with the provisions of Regulation AB, including, without
limitation, Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB as it relates
to the Owner Trustee or to the Owner Trustee’s obligations under this
Agreement.
Section
11.02. Representations and Warranties. The Owner
Trustee represents that:
(i) there
are no affiliations, relating to the Owner Trustee with respect to any Item
1119
Party;
(ii) there
are no relationships or transactions with respect to any Item 1119 Party and
the
Owner Trustee that are outside the ordinary course of business or on terms
other
than would be obtained in an arm's length transaction with an unrelated third
party, apart from the transactions contemplated under the Basic Documents,
and
that are material to the investors' understanding of the Notes; and
(iii) there
are no legal proceedings pending, or known to be contemplated by governmental
authorities, against the Owner Trustee, or of which the property of the Owner
Trustee is subject, that is material to the Noteholders.
Section
11.03. Information to Be Provided by the Owner
Trustee.
(a) For
so long as the Depositor is required to report under Regulation AB, the Owner
Trustee shall, as promptly as practicable, notify the Depositor, in writing,
of:
(i) the commencement of, a material development in or, if applicable, the
termination of, any and all legal proceedings against the Owner Trustee or
any
and all proceedings of which any property of the Owner Trustee is the subject,
that is material to the noteholders; and (ii) any such proceedings known to
be
contemplated by governmental authorities. The Owner Trustee shall
also notify the Depositor, in writing, as promptly as practicable following
notice to or discovery by a Responsible Officer of the Owner Trustee of any
material changes to proceedings described in the preceding
sentence. In addition, the Owner Trustee will furnish to the
Depositor, in writing, the necessary disclosure regarding the Owner Trustee
describing such proceedings required to be disclosed under Item 1117 of
Regulation AB, for inclusion in reports filed by or on behalf of the Depositor
pursuant to the Exchange Act.
37
(b) For
so long as the Depositor is required to report under Regulation AB, the Owner
Trustee shall (i) on or before the fifth Business Day of each January, April,
July and October, provide to the Depositor such information regarding the Owner
Trustee as is required for the purpose of compliance with Items 1109(a), 1109(b)
and 1119 of Regulation AB; provided, however, the Owner Trustee shall not be
required to provide such information in the event that there has been no change
to the information previously provided by the Owner Trustee to the Depositor;
and (ii) as promptly as practicable following notice to or discovery by a
Responsible Officer of the Owner Trustee of any changes to such information,
provide to the Depositor, in writing, such updated information. Such
information shall include, at a minimum:
(A) the
Owner Trustee’s name and form of organization;
(B) a
description of the extent to which the Owner Trustee has had prior experience
serving as a trustee for asset-backed securities transactions involving auto
finance receivables;
(C) a
description of any affiliation between the Owner Trustee and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Owner Trustee by the Depositor in writing in advance of such
Securitization Transaction:
(1) the
sponsor;
(2) any
depositor;
(3) the
issuing entity;
(4) any
master servicer or subservicer;
(5) any
other trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material party related to any Securitization Transaction.
In
addition, the Owner Trustee shall provide a description of whether there is,
and
if so the general character of, any business relationship, agreement,
arrangement, transaction or understanding between the Owner Trustee and any
above-listed party that is entered into outside the ordinary course of business
or is on terms other than would be obtained in an arm’s length transaction with
an unrelated third party, apart from the Securitization Transactions, that
currently exists or that existed during the past two years and that is material
to an investor’s understanding of the Notes.
38
ARTICLE
TWELVE
MISCELLANEOUS
Section
12.01. Supplements and Amendments.
(a) This
Agreement may be amended from time to time by the Depositor and the Owner
Trustee with prior written notice to the Rating Agencies that have provided
ratings of the Notes and to the Swap Counterparty, without the consent of any
of
the Noteholders or the Certificateholders, (i) to cure any ambiguity, to correct
or supplement any provision herein that may be inconsistent with any other
provision herein or in any offering document used in connection with the initial
offer and sale of the Notes or the Certificates and (ii) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement which will not be inconsistent with other
provisions of this Agreement; provided, however, that no such amendment
(i) may materially adversely affect the interests of any Noteholder or
Certificateholder and (ii) will be permitted unless an Opinion of Counsel
is delivered to the Owner Trustee to the effect that such amendment will not
cause the Issuer to be characterized for federal income tax purposes as an
association or publicly-traded partnership taxable as a corporation or otherwise
have any material adverse impact on the federal income taxation of any Notes
Outstanding or outstanding Certificates.
(b) This
Agreement may be amended from time to time by the Depositor and the Owner
Trustee with prior written notice to the Rating Agencies that have provided
ratings of the Notes and with the consent of the Noteholders of Notes evidencing
not less than 51% of the Note Balance or, if the Notes have been paid in full,
the Certificateholders evidencing not less than 51% of the aggregate Certificate
Percentage Interest, for the purpose of adding any provisions to, or changing
in
any manner or eliminating any of the provisions of, this Agreement or modifying
in any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment will be permitted unless an Opinion of Counsel
is delivered to the Owner Trustee to the effect that such amendment will not
cause the Issuer to be characterized for federal income tax purposes as an
association or a publicly traded partnership taxable as a corporation or
otherwise have any material adverse impact on the federal income taxation of
any
Notes Outstanding or outstanding Certificates; and, provided further, that
no
such amendment may:
(i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
or
change the allocation or priority of, collections of payments on or in respect
of the Receivables or distributions that are required to be made for the benefit
of the Noteholders or the Certificateholders without the consent of all
Noteholders and Certificateholders adversely affected by such
amendment;
(ii) reduce
the percentage of the Note Balance or the percentage of the aggregate
Certificate Percentage Interest the consent of the Noteholders or
Certificateholders, as applicable, of which is required for any amendment to
this Agreement without the consent of all the Noteholders and Certificateholders
adversely affected by the amendment; or
39
(iii) adversely
affect the rating assigned by any Rating Agency that has provided ratings of
the
Notes, to any Class of Notes without the consent of the Noteholders evidencing
not less than 66⅔% of the Note Balance of such Class of Notes.
(c) An
amendment to this Agreement shall be deemed not to materially adversely affect
the interests of any Noteholder or Certificateholder if (i) the Person
requesting such amendment obtains and delivers to the Owner Trustee an Opinion
of Counsel to that effect or (ii) the Rating Agency Condition is
satisfied.
(d) Prior
to the execution of any such amendment or consent, the Owner Trustee shall
deliver a copy of such proposed amendment or consent to the Swap
Counterparty. Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to each Certificateholder and the Depositor shall
furnish (i) written notice of the substance of such amendment or consent to
the
Indenture Trustee and the Rating Agencies that have provided ratings of the
Notes and (ii) a copy of such amendment or consent to the Swap
Counterparty.
(e) It
shall not be necessary for the consent of the Certificateholders, the
Noteholders, the Swap Counterparty or the Indenture Trustee pursuant to this
Section to approve the particular form of any proposed amendment or consent,
but
it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other
consents of Certificateholders provided for in this Agreement or in any other
Basic Document) and of evidencing the authorization of the execution thereof
by
Certificateholders shall be subject to such reasonable requirements as the
Owner
Trustee may prescribe.
(f) Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall file such amendment or cause such amendment to be filed with
the
Secretary of State.
(g) The
Owner Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Owner Trustee’s own rights, duties, liabilities or immunities
under this Agreement or otherwise.
(h) Prior
to the execution of any amendment to this Agreement or any amendment to any
other agreement to which the Issuer is a party, the Owner Trustee shall be
entitled to receive and shall be fully protected in relying upon an Opinion
of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and that all conditions precedent in this Agreement to the
execution and delivery of such amendment have been satisfied.
Section
12.02. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal
title to any part of the Owner Trust Estate. The Certificateholders
shall be entitled to receive distributions with respect to their undivided
beneficial interest therein only in accordance with Articles Five and
Nine. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their beneficial interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
40
Section
12.03. Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Indemnified Parties, the Depositor, the Certificateholders, the
Administrator, the Master Servicer and, to the extent expressly provided herein,
the Indenture Trustee, the Swap Counterparty and the Noteholders, and nothing
in
this Agreement or in the Certificates, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy
or
claim in the Owner Trust Estate or under or in respect of this Agreement or
any
covenants, conditions or provisions contained herein.
Section
12.04. Notices. All demands, notices and other
communications under this Agreement shall be in writing, personally delivered,
sent by telecopier, overnight courier or mailed by certified mail, return
receipt requested, or where electronic delivery is applicable and requested,
shall be delivered by electronic delivery, and shall be deemed to have been
duly
given upon receipt in the case of (i) the Owner Trustee, at the Corporate
Trust Office, (ii) the Depositor, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, (iii) the Indenture
Trustee, at the Corporate Trust Office (as defined in the Indenture),
(iv) the Swap Counterparty, to Wachovia Bank, National Association, ▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇–0600, Attention: Derivatives
Documentation, (v) Fitch, to Fitch Ratings, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Auto ABS Group
(email: ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇-▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇),
(vi) Moody’s, at ▇▇▇▇▇’▇ Investors Service, Inc., ABS Monitoring
Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(e-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇), (vii) Standard &
Poor’s, to Standard & Poor’s Ratings Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department
(e–mail:
▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇) or (viii) as to each of the foregoing,
at such other address as shall be designated by written notice to the other
entities whose addresses are listed in this Section. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Certificateholder
as
shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder shall receive such
notice.
Section
12.05. Severability. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or the Certificates
shall be for any reason whatsoever held invalid, illegal or unenforceable,
then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions and terms of this Agreement
and
the Certificates and shall in no way affect or impair the validity or
enforceability of the other covenants, agreements, provisions and terms of
this
Agreement or of the Certificates or the rights of the
Certificateholders.
Section
12.06. Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section
12.07. Successors and Assigns. All covenants and
agreements contained herein and in the Certificates shall be binding upon,
and
inure to the benefit of, each of the Depositor, the Owner Trustee, and each
Certificateholder and their respective successors and permitted assigns, all
as
herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by a Certificateholder shall bind the successors
and
assigns of such Certificateholder.
41
Section
12.08. Covenants of the Depositor. The Depositor
shall not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States federal
or State bankruptcy or similar law in connection with any obligations relating
to the Certificates, the Notes, this Agreement or any of the other Basic
Documents.
Section
12.09. No Petition. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), by entering into this
Agreement, each Certificateholder, by accepting a Certificate or a beneficial
interest therein, the Indenture Trustee, the Swap Counterparty and each
Noteholder, by accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time institute against the Depositor or the
Issuer, or join in any institution against the Depositor or the Issuer of,
any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to the Certificates,
the
Notes, this Agreement or any other Basic Document.
Section
12.10. No Recourse. Each Certificateholder by
accepting a Certificate acknowledges that the Certificates represent beneficial
interests in the Issuer only and do not represent interests in or obligations
of
the Depositor, the Seller, the Master Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in the Certificates, this Agreement or
any
other Basic Document.
Section
12.11. Headings. The Article and Section
headings and the Table of Contents herein are for purposes of reference only
and
shall not otherwise affect the meaning or interpretation of any provision
hereof.
Section
12.12. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
12.13. Servicer Payment Obligation. The Master
Servicer shall be responsible for the payment of all fees and expenses of the
Issuer, the Owner Trustee and the Indenture Trustee paid by any of them in
connection with any of their obligations under the Basic Documents to obtain
or
maintain or cause to be obtained or maintained any required license under the
(i) Maryland Vehicle Sales Finance Act or (ii) Pennsylvania Motor
Vehicle Sales Finance Act.
Section
12.14. Obligations with Respect to the Swap
Counterparty. Any obligations or duties owed to, or rights of,
the Swap Counterparty hereunder, including the right of the Swap Counterparty
to
consent to, or receive notice of, any actions hereunder shall terminate upon
payment in full of the Class A-3b Notes and payment of all amounts owed to
the
Swap Counterparty under the Swap Agreement.
42
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers, thereunto duly authorized, as of the
day
and year first above written.
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WDS
RECEIVABLES LLC,
as
Depositor
By:
/s/
▇▇▇▇▇
▇▇▇▇
Name:
Title:
|
|
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WILMINGTON
TRUST COMPANY,
not
in
its individual capacity but solely as
Owner
Trustee
By: /s/
J. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: J.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Financial
Services Officer
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Agreed
and Accepted:
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/ ▇▇▇▇▇ ▇. Weaver_________________
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Senior
Vice
President
Amended
and Restated Trust
Agreement
EXHIBIT A
THIS
ASSET BACKED CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO
THE
EXTENT DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING AGREEMENT AND
THE INDENTURE REFERRED TO HEREIN.
THIS
ASSET BACKED CERTIFICATE IS NOT GUARANTEED OR INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY.
THIS
ASSET BACKED CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR AN OBLIGATION
OF
WDS RECEIVABLES LLC, WACHOVIA DEALER SERVICES, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES.
THIS
ASSET BACKED CERTIFICATE MAY NOT BE ACQUIRED BY OR WITH PLAN ASSETS OF AN
EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
| REGISTERED |
NO. R-1
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ASSET
BACKED CERTIFICATE
evidencing
a beneficial interest in the property of Wachovia Auto Loan Owner Trust 2007-1,
a Delaware statutory trust (the “Issuer”), which property includes a pool of
retail installment sale contracts and installment loans secured by new and
used
motor vehicles sold by Wachovia Dealer Services, Inc., a California corporation
(“Wachovia Dealer Services”), to WDS Receivables LLC (“WDS Receivables”), a
Nevada limited liability company (the “Depositor”), and sold by the Depositor to
the Issuer. The property of the Issuer (other than the Certificate
Payment Account and the proceeds thereof) has been pledged by the Issuer to
U.S.
Bank National Association, a national banking association, as trustee (the
“Indenture Trustee”), pursuant to an indenture, dated as of June 1, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Indenture”), between the Issuer and the Indenture Trustee, to secure the
payment of the Notes issued thereunder.
This
certifies that WDS Receivables is the registered owner of a 100% Certificate
Percentage Interest nonassessable, fully paid, beneficial interest in the
Issuer. The Issuer was created pursuant to a trust agreement dated
October 10, 2006 between the Depositor and Wilmington Trust Company, as
trustee (in such capacity, and not in its individual capacity, the “Owner
Trustee”), as amended and restated by the amended and restated trust agreement,
dated as of June 1, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the “Trust Agreement”), between the Depositor and
the Owner Trustee, a summary of certain of the pertinent provisions of which
is
set forth below. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed in the Trust Agreement, the Indenture
or in the sale and servicing agreement, dated as of June 1, 2007 (as amended,
restated, supplemented or otherwise modified from time to time, the “Sale and
Servicing Agreement”), among the Issuer, the Depositor, Wachovia Dealer
Services, as seller (in such capacity, the “Seller”) and Wachovia Bank, National
Association, as master servicer (the “Master Servicer”).
A-1
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the registered
holder of this Certificate (the “Certificateholder”) by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. The
property of the Issuer primarily includes: (i) a pool of retail installment
sale contracts and installment loans originated in connection with the sale
of
new or used motor vehicles (the “Receivables”), (ii) all amounts received
on or in respect of the Receivables after the Cutoff Date, (iii) the
security interests in the Financed Vehicles granted by the Obligors pursuant
to
the Receivables and (iv) all proceeds of the foregoing.
THE
RIGHTS OF THE ISSUER IN THE FOREGOING PROPERTY OF THE ISSUER (OTHER THAN THE
CERTIFICATE PAYMENT ACCOUNT AND THE PROCEEDS THEREOF) HAVE BEEN PLEDGED TO
THE
INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.
Pursuant
to the Trust Agreement, there will be distributed on each Distribution Date
to
the Person in whose name this Certificate is registered at the close of business
on the Business Day preceding such Distribution Date such Certificateholder’s
Certificate Percentage Interest in the amount to be distributed to
Certificateholders on such Distribution Date. “Distribution Date”
means the 20th day of each month or, if such 20th day is not a Business Day,
the
following Business Day, commencing on July 20, 2007.
THE
HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO RECEIVE
DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARE SUBORDINATED TO THE RIGHTS
OF
THE NOTEHOLDERS AS DESCRIBED IN THE TRUST AGREEMENT, THE SALE AND SERVICING
AGREEMENT AND THE INDENTURE.
It
is the
intent of the Depositor, the Seller, the Master Servicer and the
Certificateholders that, for purposes of federal income taxes, State and local
income taxes and any other income taxes the Issuer will be treated as either
an
entity that is disregarded as separate from the beneficial owner of the equity
in the Issuer if there is only one such owner, or as a partnership (other than
an association or publicly traded partnership) if there are two or more such
owners. The Depositor and any other Certificateholders, by acceptance
of a Certificate, agree with the foregoing characterization of the Certificates
for such tax purposes and further agree to take no action inconsistent
therewith.
Each
Certificateholder, by its acceptance of a Certificate or a beneficial interest
therein, covenants and agrees that such Certificateholder will not at any time
institute against the Depositor or the Issuer, or join in any institution
against the Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any United States federal or State bankruptcy or similar law in connection
with
any obligations relating to the Notes, the Certificates, the Trust Agreement
or
any other Basic Document.
A-2
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Paying Agent by wire transfer or check mailed to the Certificateholder of record
in the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency of the Certificate
Registrar maintained for that purpose in Wilmington, Delaware.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if fully set forth on the face of this Certificate.
Unless
the certificate of authentication hereon has been executed by an authorized
officer of the Owner Trustee, by manual signature, this Certificate shall not
entitle the Holder hereof to any benefit under the Trust Agreement or the Sale
and Servicing Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
A-3
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not in its
individual capacity, has caused this Certificate to be duly executed as of
the
date set forth below.
| Dated: June 1, 2007 |
WACHOVIA
AUTO LOAN OWNER TRUST
2007-1,
|
|
By:
WILMINGTON TRUST COMPANY,
not
in
its individual capacity but solely as
Owner
Trustee
By:
Name:
Title:
|
OWNER
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned Trust
Agreement.
| Dated: June 1, 2007 |
WILMINGTON
TRUST COMPANY,
not
in its individual capacity but solely as
Owner
Trustee
By:
Name:
Title:
|
A-4
[REVERSE
OF CERTIFICATE]
This
Certificate does not represent an obligation of, or an interest in, the
Depositor, the Seller, the Master Servicer, the Administrator, the Owner Trustee
or any of their respective Affiliates, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated
herein, in the Trust Agreement or in the other Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Indenture and the Sale and Servicing
Agreement.
The
Trust
Agreement permits the Depositor and the Owner Trustee, on behalf of the Issuer,
with certain exceptions therein provided, to amend from time to time certain
terms and conditions set forth in the Trust Agreement without the consent of
the
Certificateholders. The Trust Agreement also permits the Depositor
and the Owner Trustee, on behalf of the Issuer, with certain exceptions as
therein provided, to amend certain terms and conditions set forth in the Trust
Agreement with the consent of the Noteholders evidencing not less than 51%
of
the Note Balance and the Certificateholders evidencing not less than 51% of
the
aggregate Certificate Percentage Interest. Any such consent by the
Certificateholder shall be conclusive and binding on such Certificateholder
and
on all future Certificateholders and of any Certificate issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the Transfer of this Certificate may be registered in the Certificate
Register upon surrender of this Certificate for registration of Transfer at
the
Corporate Trust Office and a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the
Certificateholder or such Certificateholder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in any authorized
denomination and in the same aggregate Certificate Percentage Interest in the
Issuer will be issued to the designated transferee or transferees. No
service charge shall be made for any registration of Transfer or exchange of
Certificates, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection therewith. The initial Certificate Registrar
appointed under the Trust Agreement is the Owner Trustee.
Each
Certificateholder, by its acceptance of a Certificate, shall be deemed to have
represented and warranted that such Certificateholder is not an
(i) employee benefit plan or arrangement subject to Title I of ERISA,
a plan subject to Section 4975 of the Code or any entity whose underlying
assets include plans assets by reason of a plan’s investment in the entity (a
“Benefit Plan”), nor a person acting on behalf of a Benefit Plan nor using the
assets of a Benefit Plan to effect the transfer of such Certificate, or
(ii) insurance company purchasing a Certificate with funds contained in an
“insurance company general account” (as defined in Section V(e) of PTCE
95-60) that includes the assets of a Benefit Plan for purposes of the Plan
Asset
Regulation.
Any
Person who is not an Affiliate of the Seller and acquires more than 49.9% of
the
Certificates will be deemed to represent that it is not a party in interest
(within the meaning of ERISA) or a disqualified person (within the meaning
of
Section 4975(e)(2) of the Code) with respect to any Benefit Plan, other
than a Benefit Plan that it sponsors for the benefit of its employees, and
that
no Benefit Plan with respect to which it is a party in interest has or will
acquire any interest in the Notes.
A-5
The
Certificates are issuable only in registered form in denominations as provided
in the Trust Agreement, subject to certain limitations therein set
forth.
The
Owner
Trustee, the Certificate Registrar and any Paying Agent may treat the Person
in
whose name this Certificate is registered in the Certificate Register (as of
the
day of determination) as the owner of this Certificate for the purpose of
receiving distributions pursuant to the Trust Agreement and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar
or
any Paying Agent shall be bound by any notice to the contrary.
The
Trust
Agreement, with certain exceptions therein provided, shall terminate and be
of
no further force or effect and the Issuer shall dissolve upon the earlier of
(i)
the payment to the Master Servicer, the Paying Agent, the Owner Trustee, the
Indenture Trustee, the Swap Counterparty, the Noteholders and the
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement, the Swap Agreement
and
the Trust Agreement, (ii) the Distribution Date next succeeding the month which
is one year after the maturity or other liquidation of the last Receivable
and
the disposition of any amounts received upon liquidation of any property
remaining in the Issuer or (iii) upon the purchase of the Receivables by the
Seller in connection with an Optional Purchase and retirement of the Notes
and
Certificates.
A-6
ASSIGNMENT
SOCIAL
SECURITY NUMBER
OR
OTHER
IDENTIFICATION
NUMBER
OF
ASSIGNEE: ________________
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________________________________
(name
and
address of assignee)
the
within Certificate and all rights thereunder, and hereby irrevocably constitutes
and appoints ________________________, attorney, to transfer said Certificate
on
the Certificate Register, with full power of substitution in the
premises.
Dated:
*/
Signature
Guaranteed:
*/
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*/
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NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Certificate
in
every particular, without alteration, enlargement or any change
whatsoever. Such signature must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Certificate
Registrar.
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A-7
EXHIBIT B
CERTIFICATE
OF TRUST OF
This
Certificate of Trust of Wachovia Auto Loan Owner Trust 2007-1 (the “Trust”), is
being duly executed and filed by Wilmington Trust Company, a Delaware banking
corporation, as trustee (the “Trustee”), to form a statutory trust under the
Delaware Statutory Trust Act (12 Del. Code, § 3801
et seq.) (the “Act”).
1. Name. The
name of the statutory trust formed hereby is Wachovia Auto Loan Owner Trust
2007-1.
2. Delaware
Trustee. The name and business address of a trustee of the Trust
having its principal place of business in the State of Delaware is Wilmington
Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration.
3. Effective
Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust in accordance with Section 3811 of the
Act.
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WILMINGTON
TRUST COMPANY,
as Trustee
By:
Name:
Title:
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B-1