TRUST AGREEMENT between FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor and U.S. BANK TRUST NATIONAL ASSOCIATION, as Owner Trustee for Ford Credit Auto Owner Trust 2007-B Dated as of October 1, 2007
Exhibit
4.2
AMENDED
AND RESTATED
between
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
and
U.S.
BANK
TRUST
NATIONAL
ASSOCIATION,
as
Owner
Trustee
for
Dated
as
of October 1, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
I USAGE AND DEFINITIONS
|
1
|
|
|
ARTICLE
II ORGANIZATION OF THE TRUST
|
1
|
|
|
Section
2.1
|
Name
|
1
|
|
Section
2.2
|
Office
|
1
|
|
Section
2.3
|
Purposes
and Powers
|
1
|
|
Section
2.4
|
Appointment
of the Owner Trustee
|
2
|
|
Section
2.5
|
Contribution
and Conveyance of Trust Property
|
2
|
|
Section
2.6
|
Declaration
of Trust
|
2
|
|
Section
2.7
|
Liability
of the Depositor; Conduct of Activities; Liability to Third
Parties
|
2
|
|
Section
2.8
|
Title
to Trust Property
|
2
|
|
Section
2.9
|
Situs
of Issuer
|
2
|
|
Section
2.10
|
Representations
and Warranties of the Depositor
|
3
|
|
Section
2.11
|
Tax
Matters
|
4
|
|
|
||
|
ARTICLE
III RESIDUAL INTEREST AND TRANSFER OF INTERESTS
|
5
|
|
|
|
||
|
Section
3.1
|
The
Residual Interest
|
5
|
|
Section
3.2
|
Registration
of Residual Interests; Transfer of the Residual Interest
|
6
|
|
Section
3.3
|
Capital
Accounts
|
7
|
|
Section
3.4
|
Maintenance
of Office or Agency
|
7
|
|
Section
3.5
|
Distributions
to the Holder of the Residual Interest
|
7
|
|
|
||
|
ARTICLE
IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
|
7
|
|
|
|
||
|
Section
4.1
|
Application
of Trust Funds
|
7
|
|
Section
4.2
|
Method
of Payment
|
8
|
|
|
||
|
ARTICLE
V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
|
8
|
|
|
|
||
|
Section
5.1
|
General
Authority
|
8
|
|
Section
5.2
|
General
Duties
|
8
|
|
Section
5.3
|
Action
upon Prior Notice with Respect to Certain Matters
|
8
|
|
Section
5.4
|
Action
upon Direction by the Holder of the Residual Interest with Respect
to
Certain Matters
|
9
|
|
Section
5.5
|
Action
with Respect to Bankruptcy
|
9
|
|
Section
5.6
|
Action
upon Instruction
|
9
|
|
Section
5.7
|
No
Duties Except as Specified in this Agreement or in
Instructions
|
10
|
|
Section
5.8
|
No
Action Except Under Specified Documents or Instructions
|
10
|
|
Section
5.9
|
Prohibition
on Certain Actions
|
10
|
|
Section
5.10
|
Audits
of the Owner Trustee
|
10
|
|
Section
5.11
|
Furnishing
of Documents
|
11
|
i
|
Section
5.12
|
Xxxxxxxx-Xxxxx
Act
|
11
|
|
Section
5.13
|
Maintenance
of Licenses
|
11
|
|
|
||
|
ARTICLE
VI REGARDING THE OWNER TRUSTEE
|
11
|
|
|
|
||
|
Section
6.1
|
Acceptance
of Trusts and Duties
|
11
|
|
Section
6.2
|
Representations
and Warranties of the Owner Trustee
|
12
|
|
Section
6.3
|
Reliance;
Advice of Counsel
|
13
|
|
Section
6.4
|
Not
Acting in Individual Capacity
|
13
|
|
Section
6.5
|
U.S.
Bank Trust National Association May Own Notes
|
13
|
|
Section
6.6
|
Duty
to Update Disclosure
|
14
|
|
ARTICLE
VII COMPENSATION AND INDEMNIFICATION OF THE OWNER TRUSTEE; ORGANIZATIONAL
EXPENSES
|
14
|
|
|
|
||
|
Section
7.1
|
Owner
Trustee's Fees and Expenses
|
14
|
|
Section
7.2
|
Indemnification
of the Owner Trustee
|
14
|
|
Section
7.3
|
Organizational
Expenses of the Issuer
|
15
|
|
Section
7.4
|
Certain
Expenses of the Indenture Trustee
|
15
|
|
ARTICLE
VIII TERMINATION
|
15
|
|
|
Section
8.1
|
Termination
of Trust Agreement
|
15
|
|
ARTICLE
IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
|
16
|
|
|
Section
9.1
|
Eligibility
Requirements for the Owner Trustee
|
16
|
|
Section
9.2
|
Resignation
or Removal of the Owner Trustee
|
16
|
|
Section
9.3
|
Successor
Owner Trustee
|
17
|
|
Section
9.4
|
Merger
or Consolidation of the Owner Trustee
|
17
|
|
Section
9.5
|
Appointment
of Separate Trustee or Co-Trustee
|
17
|
|
Section
9.6
|
Compliance
with Delaware Statutory Trust Act
|
18
|
|
ARTICLE
X MISCELLANEOUS
|
18
|
|
|
Section
10.1
|
Supplements
and Amendments
|
18
|
|
Section
10.2
|
No
Legal Title to Trust Property in the Holder of the Residual
Interest
|
20
|
|
Section
10.3
|
Limitation
on Rights of Others
|
20
|
|
Section
10.4
|
Notices
|
21
|
|
Section
10.5
|
GOVERNING
LAW
|
21
|
|
Section
10.6
|
WAIVER
OF JURY TRIAL
|
21
|
|
Section
10.7
|
Severability
|
21
|
|
Section
10.8
|
Counterparts
|
21
|
|
Section
10.9
|
Headings
|
21
|
|
Section
10.10
|
No
Petition
|
22
|
|
Exhibit
A
|
F
orm of Certificate of Trust
|
A-1
|
ii
AMENDED
AND RESTATED TRUST AGREEMENT, dated as of October 1, 2007 (this
"Agreement"), between FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware
limited liability company, as Depositor, and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
but
solely as trustee under this Agreement, to establish Ford Credit Auto Owner
Trust 2007-B.
BACKGROUND
The
parties to this Agreement wish to amend and restate the interim Trust Agreement,
dated as of October 13, 2006, between the Depositor and the Owner Trustee as
set
forth in this Agreement.
ARTICLE
I
USAGE
AND
DEFINITIONS
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A
to the Sale and Servicing Agreement. Appendix A also contains rules
as to usage applicable to this Agreement. Appendix A is incorporated
by reference into this Agreement.
ARTICLE
II
ORGANIZATION
OF THE TRUST
Section
2.1 Name. The
trust was created and is known as "Ford Credit Auto Owner Trust 2007-B", in
which name the Owner Trustee may conduct the activities of the Issuer, make
and
execute contracts and other instruments on behalf of the Issuer and xxx and
be sued on behalf of the Issuer.
Section
2.2 Office. The
office of the Issuer is in care of the Owner Trustee at its Corporate Trust
Office.
Section
2.3 Purposes
and Powers
(a) The
purpose of the Issuer is, and the Issuer will have the power and authority,
to
engage in the following activities:
(i)
to acquire the Receivables and other Trust Property pursuant to the Sale
and Servicing Agreement from the Depositor in exchange for the Notes and the
Residual Interest;
(ii) to
Grant the Collateral to the Indenture Trustee pursuant to the
Indenture;
(iii) to
enter into and perform its obligations under the Basic Documents;
(iv) to
enter into and perform its obligations under any interest rate protection
agreement or agreements with one or more counterparties;
(v) to
issue the Notes pursuant to the Indenture and to sell the Notes upon the
order of the Depositor;
(vi) to
pay interest on and principal of the Notes;
(vii) to
issue additional securities pursuant to one or more supplemental indentures
or amendments to this Agreement and to transfer all or a portion of such
securities to the Depositor or other holder of a Residual Interest, subject
to
compliance with the Basic Documents, in exchange for all or a portion of the
Residual Interest;
(viii) to
engage in those activities, including entering into agreements, that are
necessary, appropriate or convenient to accomplish the foregoing or are
incidental to the foregoing; and
(ix) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Trust Property and the
making of payments to the Noteholders and distributions to the holder of the
Residual Interest.
(b) The
Issuer will not engage in any activity other than as required or authorized
by
this Agreement or the other Basic Documents.
Section
2.4 Appointment
of the Owner Trustee. The
Depositor appoints the Owner Trustee as trustee of the Issuer effective as
of
the Cutoff Date, to have all the rights, powers and duties set forth in this
Agreement.
Section
2.5 Contribution
and Conveyance of Trust Property. As
of the date of the Trust formation, the Depositor contributed to the Owner
Trustee the amount of $1. The Owner Trustee acknowledges receipt in
trust from the Depositor, as of such date, of such contribution, which
constitutes the initial Trust Property. On the Closing Date, the
Depositor will sell to the Issuer the Trust Property in exchange for the
Notes.
Section
2.6 Declaration
of Trust. The
Owner Trustee will hold the Trust Property in trust upon and subject to the
conditions set forth in this Agreement for the use and benefit of the holder
of
the Residual Interest, subject to the obligations of the Issuer under the Basic
Documents. It is the intention of the parties that the Issuer
constitute a statutory trust under the Delaware Statutory Trust Act and that
this Agreement constitute the governing instrument of such statutory
trust. Effective as of the Cutoff Date, the Owner Trustee will have
the rights, powers and duties set forth in this Agreement and in the Delaware
Statutory Trust Act with respect to accomplishing the purposes of the
Issuer. A Certificate of Trust substantially in the form of Exhibit A
and any necessary certificate of amendment has been filed with the Secretary
of
State of the State of Delaware.
Section
2.7
Liability of the Depositor; Conduct of Activities;
Liability to Third Parties
(a) The
Depositor, as initial holder of the entire Residual Interest, will be entitled
to the same limitation of personal liability extended to stockholders or a
private corporation for profit organized under the Delaware General Corporation
Law.
(b) The
activities and affairs of the Issuer will be operated in such a manner as to
preserve (i) the limited liability of the Depositor, (ii) the separateness
of
the Issuer from the activities of the Depositor and Ford Credit and (iii) until
1 year and 1 day after all Notes and any additional securities issued pursuant
to Section 3.1(b) are paid in full, the bankruptcy remote status of the
Issuer.
(c) Except
as otherwise provided in this Agreement, none of the Depositor, the
Administrator or any of their Affiliates or any manager, officer or employee
of
any such Person, will be liable for the debts, obligations or liabilities of
the
Issuer.
Section
2.8 Title
to Trust Property. Legal
title to the Trust Property will be vested in the Issuer as a separate legal
entity, except where applicable law in any jurisdiction requires title to any
part of the Trust Property to be vested in a trustee or trustees, in which
case
title will be deemed to be vested in the Owner Trustee, a co-trustee and/or
a separate trustee, as the case may be.
Section
2.9 Situs
of Issuer. The
Issuer will be administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Issuer will be located
in the State of Delaware. The Issuer will not have any employees
in any state other than the State of Delaware, except that U.S. Bank Trust
National Association, in its capacity as Owner Trustee or any other capacity,
may have employees within or outside the State of Delaware. Payments
will be received by the Issuer only in Delaware, and payments will be made
by
the Issuer only from Delaware. The principal office of the Issuer
will be in care of the Owner Trustee in the State of Delaware.
2
Section
2.10 Representations
and Warranties of the Depositor. The
Depositor represents and warrants to the Owner Trustee as of the Closing
Date:
(a) Organization
and Qualification. The Depositor is duly organized and is validly
existing as a limited liability company in good standing under the laws of
the
State of Delaware. The Depositor is qualified as a foreign limited
liability company in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not have a material adverse effect on the Depositor's ability
to
perform its obligations under this Agreement or the other Basic Documents to
which it is a party.
(b) Power,
Authorization and Enforceability. The Depositor has the power and
authority to execute, deliver and perform the terms of this
Agreement. The Depositor has authorized the execution, delivery and
performance of the terms of each of the Basic Documents to which it is a
party. Each of the Basic Documents to which the Depositor is a party
is the legal, valid and binding obligation of the Depositor enforceable against
the Depositor, except as may be limited by insolvency, bankruptcy,
reorganization or other laws relating to the enforcement of creditors' rights
or
by general equitable principles.
(c) No
Conflicts and No Violation. The consummation of the transactions
contemplated by the Basic Documents to which the Depositor is a party and the
fulfillment of the terms of the Basic Documents to which the Depositor is a
party will not: (i) conflict with or result in a material breach of the
terms or provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
under which the Depositor is a debtor or guarantor, (ii) result in the creation
or imposition of any lien, charge or encumbrance upon any of the properties
or
assets of the Depositor pursuant to the terms of any such indenture, mortgage,
deed of trust, loan agreement, guarantee or similar agreement or instrument
(other than this Agreement) (iii) violate the Certificate of Formation or
Limited Liability Company Agreement, or (iv) violate any law or, to the
Depositor's knowledge, any order, rule, or regulation applicable to the
Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties, in each case which conflict, breach,
default, lien, or violation would reasonably be expected to have a material
adverse effect on the Depositor's ability to perform its obligations under
the
Basic Documents.
(d) No
Proceedings. To the Depositor's knowledge, there are no
proceedings or investigations pending or overtly threatened in writing, before
any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Depositor or its properties: (i)
asserting the invalidity of any of the Basic Documents or the Notes, (ii)
seeking to prevent the issuance of the Notes or the consummation of any of
the
transactions contemplated by any of the Basic Documents, (iii) seeking any
determination or ruling that would reasonably be expected to have a material
adverse affect on the Depositor's ability to perform its obligations under,
or
the validity or enforceability of, any of the Basic Documents or the Notes
or
(iv) that would reasonably be expected to (A) affect the treatment of the Notes
as indebtedness for U.S. federal income or Applicable Tax State income or
franchise tax purposes (B) be deemed to cause a taxable exchange of the Notes
for U.S. federal income tax purposes, (C) cause the Issuer to be treated as
an
association or publicly traded partnership taxable as a corporation for U.S.
federal income tax purposes or (D) cause the Issuer to incur Michigan Single
Business Tax liability other than such proceedings that, to the Depositor's
knowledge, would not reasonably be expected to have a material adverse effect
upon the Depositor or materially and adversely affect the performance by the
Depositor of its obligations under, or the validity and enforceability of,
the
Basic Documents or the Notes.
3
Section
2.11 Tax
Matters
(a) It
is the intention of the parties and Ford Credit that, for purposes of U.S.
federal income, state and local income and franchise tax and any other
income taxes, so long as the Issuer has no equity owner other than the Depositor
(as determined for U.S. federal income tax purposes), the Issuer be treated
as
an entity disregarded as separate from the Depositor. If beneficially
owned by a Person other than Ford Credit, each Class of Notes is intended to
be
treated as indebtedness for U.S. federal income tax purposes. The
Depositor agrees, and the Noteholders by acceptance of their Notes agree in
the
Indenture, to such treatment and each agrees to take no action inconsistent
with
such treatment.
(b) If
one or more Classes of Notes is recharacterized as an equity interest in the
Issuer, and not as indebtedness (any such Class, a "Recharacterized
Class") and any such Recharacterized Class is treated as not owned by Ford
Credit or the Depositor (if the Depositor is not an entity disregarded as
separate from Ford Credit for U.S. federal income tax purposes) for U.S. federal
income, or State or local income, franchise or single business tax purposes,
the
parties intend that the Issuer be characterized as a partnership among Ford
Credit or the Depositor (to the extent either is at that time treated as an
equity owner of the Issuer for U.S. federal income tax purposes), any other
holder of the Residual Interest and any holders of the Recharacterized Class
or
Classes. In that event, for purposes of U.S. federal income, State
and local income, franchise tax and single business taxes each
month:
(i)
amounts paid as interest to holders of any Recharacterized Class will be
treated as a guaranteed payment within the meaning of Section 707(c) of the
Code;
(ii) to
the extent the characterization provided for in Section 2.11(a) is not
respected, gross ordinary income of the Issuer for such month as determined
for
U.S. federal income tax purposes will be allocated to the holders of each
Recharacterized Class as of the Record Date occurring within such month, in
an
amount equal to the sum of (A) the interest accrued to such Recharacterized
Class for such month, (B) the portion of the market discount on the Receivables
accrued during such month that is allocable to the excess, if any, of the
aggregate initial Note Balance of such Recharacterized Class over the initial
aggregate issue price of the Notes of such Recharacterized Class and (C) any
amount expected to be distributed to the holders of such Class of Notes pursuant
to Section 8.2 of the Indenture (to the extent not previously allocated pursuant
to this Section 2.11(b)(ii)) to the extent necessary to reverse any net loss
previously allocated to holders of the Notes of such Recharacterized Class
(to
the extent not previously reversed pursuant to this Section 2.11(b)(ii)(C));
and
(iii) thereafter
all remaining net income of the Issuer (subject to the modifications set forth
below) for such month as determined for U.S. federal income tax purposes (and
each item of income, gain, credit, loss or deduction entering into the
computation thereof) will be allocated to the holder of the Residual
Interest.
If
the
gross ordinary income of the Issuer for any month is insufficient for the
allocations described in Section 2.11(b)(ii) above, subsequent gross ordinary
income will first be allocated to each Recharacterized Class in alphabetical
order to make up such shortfall before any allocation pursuant to Section
2.11(b)(iii). Net losses of the Issuer, if any, for any month as
determined for U.S. federal income tax purposes (and each item of income, gain,
credit, loss or deduction entering into the computation thereof) will be
allocated to the holder of the Residual Interest to the extent the holder of
the
Residual Interest is reasonably expected to bear the economic burden of such
net
losses, and any remaining net losses will be allocated in reverse alphabetical
order to each Recharacterized Class, in each case, until the Note Balance of
such Recharacterized Class is reduced to zero as of the Record Date occurring
within such month, and among each Recharacterized Class, in proportion to their
ownership of the aggregate Note Balance of such Recharacterized Class on such
Record Date. The tax matters partner designated pursuant to Section 2.11(f)
is
authorized to modify the allocations in this Section 2.11(b) if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect
the
economic income, gain or loss to the holder of the Residual Interest or the
holders of a Recharacterized Class or as otherwise required by the
Code.
4
(c) The
parties agree that, unless otherwise required by the appropriate tax
authorities, the Depositor, on behalf of the Issuer, will file or cause to
be
filed annual or other necessary returns, reports and other forms consistent
with
the characterizations described in Section 2.11(a).
(d) The
Owner Trustee will not elect or cause the Issuer to elect, and the other parties
to this Agreement will not elect or permit an election to be made, to treat
the
Issuer as an association taxable as a corporation for U.S. federal income tax
purposes pursuant to Treas. Reg. §301.7701-3.
(e) If
at any time the Issuer is not treated as an entity disregarded as separate
from
the Depositor for U.S. federal income tax purposes, the Owner Trustee will,
based on information provided by or on behalf of the Depositor, (i)
maintain the books of the Issuer on the basis of a calendar year and the accrual
method of accounting, (ii) deliver to the holder of the Residual Interest such
information as may be required under the Code to enable such holder to prepare
its U.S. federal and State income tax returns, (iii) file any tax returns
relating to the Issuer and make such elections as may be required or
appropriate under any applicable U.S. federal or State statute and (iv) collect
any withholding tax as described in and in accordance with Section
4.1(c).
(f) If
at any time the Issuer is not an entity disregarded as separate from the
Depositor for U.S. federal income tax purposes, the Depositor so long as it
is
treated as holding any equity interest in the Issuer for U.S. federal income
tax
purposes, and otherwise, the owner of such equity interests designated by a
majority of such owners, will (i) prepare and sign, on behalf of the Issuer,
the
tax returns of the Issuer and (ii) be designated the "tax matters partner"
of
the Issuer pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE
III
RESIDUAL
INTEREST AND TRANSFER OF INTERESTS
Section
3.1 The
Residual Interest
(a) Upon
the formation of the Issuer by the contribution and conveyance by the Depositor
pursuant to Section 2.5, the Depositor will be the sole holder of the Residual
Interest. The holder of the Residual Interest will be entitled, pro
rata, to any amounts not needed on any Payment Date to make payments on the
Notes and on all other obligations to be paid under the Indenture and this
Agreement, and to receive amounts remaining in the Reserve Account
following the payment in full of the Notes and of all other amounts owing or
to
be distributed under this Agreement, the Indenture or the Sale and Servicing
Agreement to the Secured Parties upon the termination of the
Issuer.
(b) The
Depositor may exchange its Residual Interest for additional securities issued
by
the Issuer pursuant to one or more supplemental indentures to the Indenture
or
amendments to this Agreement. Such additional securities may consist
of one or more classes of notes, certificates or other securities, as directed
by the Depositor, each having the characteristics, rights and obligations as
may
be directed by the Depositor (which may include subordination to one or more
other classes of such additional securities), provided:
(i) the
rights of the holders of such additional securities, when taken as a whole,
are
no greater than the rights of the holder of the Residual Interest immediately
prior to the issuance of such additional securities (unless all Noteholders
of
Outstanding Notes otherwise consent);
5
(ii) the
Depositor delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that the issuance of such additional securities will
not
(A) adversely affect in any material respect the interest of any Noteholder,
(B)
cause any Note to be deemed sold or exchanged for purposes of Section 1001
of
the Code, (C) cause the Issuer to be treated as an association or publicly
traded partnership taxable as a corporation for U.S. federal income tax
purposes, or (D) adversely affect the treatment of the Notes as debt for U.S.
federal income tax purposes; and
(iii) the
Depositor either delivers to the Indenture Trustee and the Owner Trustee (A)
an
Opinion of Counsel to the effect that, after giving effect to such exchange,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any such additional security or that the withholding
tax
imposed will be no greater than the withholding tax imposed prior to such
exchange or (B) an Officer's Certificate that states withholding is applicable
to payments on any such additional securities, the rate of withholding tax
required on such payments, and that such amounts will be withheld and remitted
to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.
Without
limiting the foregoing, one or more classes of such additional securities may,
if so directed by the Depositor, be secured by all or a portion of the Trust
Property, so long as such security interest, is subordinated in priority to
the
security interest granted to the Secured Parties pursuant to the
Indenture. Subject to this Section 3.1(b) and the other terms of the
Basic Documents, the Owner Trustee, on behalf of the Issuer, will take (at
the
expense of the Depositor) all actions requested by the Depositor to facilitate
the issuance and sale of any such additional securities or the Grant and
perfection of any security interest granted pursuant to this Section 3.1(b),
including the authorization of the filing of any financing statements in
jurisdictions deemed necessary or advisable by the Depositor to perfect such
security interest.
Section
3.2 Registration
of Residual Interests; Transfer of the Residual Interest. The
Issuer appoints the Owner Trustee to be the "Trust Registrar" and to keep
a register (the "Trust Register") for the purpose of registering Residual
Interests and transfers of Residual Interests as provided in this
Agreement. Upon any resignation of the Trust Registrar, the Issuer
will promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Trust Registrar. The holder of the
Residual Interest may not sell, transfer, assign or convey its rights in the
Residual Interest to Ford Credit at any time. The holder of the
Residual Interest will be permitted to sell, transfer, assign or convey its
rights in the Residual Interest to any Person that is treated as being an entity
separate from Ford Credit for U.S. federal income tax purposes if the following
conditions are satisfied:
(a) such
holder of a Residual Interest delivers an Opinion of Counsel to the Issuer
and
the Indenture Trustee to the effect that such action will not cause the Issuer
to be or become characterized for U.S. federal or any then Applicable Tax State
income tax purposes as an association or publicly traded partnership taxable
as
a corporation;
(b) such
holder of a Residual Interest delivers to the Indenture Trustee and the Owner
Trustee (i) an Opinion of Counsel to the effect that, after giving effect to
such action, there will be no withholding imposed under Sections 1441 or 1442
of
the Code in respect of payments on any such transferred security or that the
withholding tax imposed will be no greater than the withholding tax imposed
prior to such transfer or (ii) an Officer's Certificate that states withholding
is applicable to payments on any such transferred security, the rate of
withholding tax required on such payments, and that such amounts will be
withheld and remitted to the Internal Revenue Service in satisfaction of the
requirements of Sections 1441 and 1442 of the Code;
(c) the
Depositor has notified the transferee or assignee of the tax positions
previously taken by it, as holder of the Residual Interest, for U.S. federal
and
any Applicable Tax State income tax purposes and the transferee or assignee
has
agreed to take positions for U.S. federal and any Applicable Tax State income
tax purposes consistent with the tax positions previously taken by the
Depositor, as holder of the Residual Interest; and
6
(d) the
holder or assignee of the Residual Interest delivers to the Indenture Trustee
and the Owner Trustee a certification that it is not, and each account (if
any)
for which it is acquiring the Residual Interest is not (i) an "employee benefit
plan" (as defined in Section 3(3) of the Employee Retirement Income Security
Act
of 1974, as amended ("ERISA")) which is subject to Title I of ERISA, (ii)
a "plan" described in Section 4975(e)(1) of the Code which is subject to
Section
4975 of the Code, or (iii) an entity whose underlying assets include "plan
assets" by reason of a plan's investment in the entity (within the meaning
of
Department of Labor Regulation 29 C.F.R. Section 2510.3-101 or otherwise
under
ERISA).
Section
3.3 Capital
Accounts. This
Section 3.3 will apply only if the Issuer is not treated as an entity
disregarded for U.S. federal income tax purposes.
(a)
The Owner Trustee will establish and maintain, in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations, a separate bookkeeping account
(a
"Capital Account") for the Depositor and each other person treated as an
equity owner for U.S. federal income tax purposes.
(b) Notwithstanding
any other provision of this Agreement to the contrary, the foregoing provisions
of this Section 3.3 regarding the maintenance of Capital Accounts will be
construed so as to comply with the provisions of the Treasury Regulations
promulgated pursuant to Section 704 of the Code. The Depositor is authorized
to
modify these provisions to the minimum extent necessary to comply with such
regulations.
Section
3.4 Maintenance
of Office or Agency. The
Owner Trustee will maintain an office or offices or agency or agencies where
notices and demands to or upon the Owner Trustee in respect of the Basic
Documents may be served. The Owner Trustee designates its Corporate
Trust Office for such purposes and will promptly notify the Depositor and
the
Indenture Trustee of any change in the location of its Corporate Trust
Office.
Section
3.5 Distributions
to the Holder of the Residual Interest. If
the Trust Distribution Account has been established, the Owner Trustee will
have
the revocable power to withdraw funds from the Trust Distribution Account
for
the purpose of making distributions to the holder of the Residual Interest
under
this Agreement. The Owner Trustee will make the distributions
pursuant to Section 3.1, Section 4.1, Section 4.2 and Section
8.1. The Owner Trustee will hold all sums held by it for distribution
to the holder of the Residual Interest in trust for the benefit of the holder
of
the Residual Interest until such sums are distributed to the holder of the
Residual Interest.
ARTICLE
IV
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
4.1 Application
of Trust Funds. If
the Trust Distribution Account has been established:
(a) On
each Payment Date, the Owner Trustee, based on the information contained
in the
Monthly Investor Report, will withdraw the amounts deposited into the Trust
Distribution Account pursuant to Section 8.2(c)(xvi), 8.2(d)(viii) and
8.2(e)(xvii) of the Indenture on or before such Payment Date and distribute
such
amounts to the holder of the Residual Interest.
(b) Following
the satisfaction and discharge of the Indenture and the payment in full of
the
principal and interest on the Notes, the Owner Trustee will distribute any
remaining funds on deposit in the Trust Distribution Account to the holder
of
the Residual Interest.
7
(c) If
any withholding tax is imposed on the Issuer's payment (or allocations of
income) to the holder of the Residual Interest, such tax will reduce the
amount
otherwise distributable to such holder in accordance with this Section
4.1(c). The Owner Trustee is authorized and directed to retain from
amounts otherwise distributable to the holder of the Residual
Interest sufficient funds for the payment of any such
withholding tax that is legally owed by the Issuer (but such authorization
will
not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax
imposed with respect to the holder of the Residual Interest will be treated
as
cash distributed to such holder 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,
the Owner Trustee may, in its sole discretion, withhold such amounts in
accordance with this Section 4.1(c). If the holder of a Residual
Interest wishes to apply for a refund of any such withholding tax, the Owner
Trustee will reasonably cooperate with such holder in
making such claim so long as such holder agrees to reimburse the Owner Trustee
for any out-of-pocket expenses incurred in so cooperating.
Section
4.2 Method
of Payment. Distributions
required to be made to the holder of the Residual Interest on any Payment
Date
will be made by wire transfer, in immediately available funds, to the account
specified by such holder to the Owner Trustee.
ARTICLE
V
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE
Section
5.1 General
Authority.
(a) Upon
the Depositor's execution of this Agreement, the Owner Trustee is authorized
and
directed, on behalf of the Issuer, to (i) execute and deliver the Basic
Documents and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Issuer is to be a party
and
(ii) direct the Indenture Trustee to authenticate and deliver the
Notes.
(b) The
Owner Trustee is authorized to take all actions required of the Issuer
pursuant to the Basic Documents and is authorized to take such action on
behalf
of the Issuer as is permitted by the Basic Documents that the Servicer or
the Administrator directs with respect to the Basic Documents, except to
the
extent that this Agreement requires the consent of the Noteholders or the
holder
of the Residual Interest for such action.
Section
5.2 General
Duties. Subject
to Section 5.3, it is the duty of the Owner Trustee to discharge all of its
responsibilities pursuant to this Agreement and the Basic Documents to
which the Issuer is a party and to administer the Issuer in the interest
of the
holder of the Residual Interest, subject to the lien of the Indenture and
in accordance with the Basic Documents. The Owner Trustee will be
deemed to have discharged its duties and responsibilities under the Basic
Documents to the extent the Administrator is required in the Administration
Agreement to perform any act or to discharge such duty of the Owner Trustee
or
the Issuer under any Basic Document. The Owner Trustee will not be
held liable for the default or failure of the Administrator to carry out
its
obligations under the Administration Agreement. The Owner Trustee
will have no obligation to administer, service or collect the Receivables
or to
maintain, monitor or otherwise supervise the administration, servicing or
collection of the Receivables.
Section
5.3 Action
upon Prior Notice with Respect to Certain Matters. With
respect to the following matters, the Owner Trustee may not take action unless
(i) at least 30 days before taking such action, the Owner Trustee has notified
the Indenture Trustee, the Noteholders of Notes of the Controlling Class,
the
holder of the Residual Interest and the Rating Agencies of the proposed action
and (ii) Noteholders of at least a majority of the Note Balance of the
Controlling Class (or if no Notes are Outstanding, the holder of the Residual
Interest) have not notified the Owner Trustee before the 30th day after receipt
of such notice that such majority of the Note Balance of the Controlling
Class
(or if no Notes are Outstanding, the holder of the Residual Interest) has
withheld consent or provided alternative direction:
8
(a) the
initiation of any material claim or lawsuit by the Issuer and the settlement
of
any material action, claim or lawsuit brought by or against 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 Delaware Statutory Trust
Act),
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 holders of the Notes or the Residual Interest;
(c) the
appointment pursuant to the Indenture of a successor Indenture Trustee or
the
consent to the assignment by the Indenture Trustee of its obligations under
the
Indenture or this Agreement; and
(d) consenting
to the Administrator taking any of the actions described in clauses (a) through
(c) above.
Section
5.4 Action
upon Direction by the Holder of the Residual Interest with Respect to Certain
Matters
(a) The
Owner Trustee on behalf of the Issuer will not execute an amendment to the
Sale
and Servicing Agreement, the Indenture or the Administration Agreement that
would materially adversely affect the holder of the Residual Interest without
the consent of such holder.
(b) The
Owner Trustee will not (a) remove the Servicer or appoint a successor Servicer
under Article VII of the Sale and Servicing Agreement, (b) remove the
Administrator under Section 5.1 of the Administration Agreement or (c)
appoint a successor Administrator pursuant to Section 5.2 of the Administration
Agreement unless (i) there is an Event of Servicing Termination subsequent
to
the payment in full of the Notes and (ii) the holder of the Residual Interest
directs the Owner Trustee to take such action.
Section
5.5 Action
with Respect to Bankruptcy. The
Owner Trustee may not commence a voluntary proceeding in bankruptcy
relating to the Issuer unless the Notes have been paid in full and the holder
of
the Residual Interest approves of such commencement in advance and delivers
to
the Owner Trustee a certificate certifying that it reasonably believes that
the
Issuer is insolvent.
Section
5.6 Action
upon Instruction.
(a) The
Owner Trustee will not be required to take any action under any Basic Document
if the Owner Trustee reasonably determines, or is advised by counsel, that
such
action is likely to result in liability on the part of the Owner Trustee,
is
contrary to any Basic Document or is contrary to law.
(b) If
(i) the Owner Trustee is unsure as to the application of any provision of
any Basic Document, (ii) any provision of any Basic Document is, or appears
to
be, in conflict with any other applicable provision, (iii) 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 or (iv) the Owner Trustee is unable to decide
between alternative courses of action permitted or required by any Basic
Document, the Owner Trustee may, and with respect to clause (iv) will, notify
the Administrator 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 will not be liable to any Person
on
account of such action or inaction. If the Owner Trustee does not
receive appropriate instruction within 10 days of such notice (or within
such
shorter period of time as reasonably may be specified in such notice or may
be
necessary under the circumstances) it may, but will be under no duty to,
take or
refrain from taking such action, not inconsistent with the Basic Documents,
as
it deems to be in the best interests of the holder of the Residual Interest,
and
will have no liability to any Person for such action or inaction.
9
Section
5.7 No
Duties Except as Specified in this Agreement or in Instructions. The
Owner Trustee has no duty or obligation to manage, make any payment with
respect
to, register, record, sell, dispose of, or otherwise deal with the Trust
Property, or to otherwise take or refrain from taking any action under, or
in
connection with, any document contemplated by this Agreement to which the
Owner
Trustee or the Issuer is a party, except as provided by this Agreement or
in any document or instruction received by the Owner Trustee pursuant to
Section
5.6. No implied duties or obligations will be read into any Basic
Document against the Owner Trustee. The Owner Trustee has no
responsibility for filing any financing statements or continuation statements
or
to otherwise perfect or maintain the perfection of any security interest
or lien
granted to it under this Agreement or to prepare or file any Securities and
Exchange Commission filing for the Issuer or to record any Basic
Document. The Owner Trustee nevertheless agrees that it will promptly
take, at its own cost and expense, all action as may be necessary to discharge
any lien (other than the lien of the Indenture) on any part of the Trust
Property that results from actions by, or claims against, the Owner Trustee
that
are not related to the ownership or the administration of the Trust
Property.
Section
5.8 No
Action Except Under Specified Documents or Instructions. The
Owner Trustee will not manage, control, use, sell, dispose of or otherwise
deal
with any part of the Trust Property except (a) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to
this
Agreement, (b) in accordance with the other Basic Documents to which the
Issuer or the Owner Trustee is a party and (c) in accordance with any document
or instruction delivered to the Owner Trustee pursuant to Section
5.6. The Depositor will not direct the Owner Trustee to take any
action that would violate this Section 5.8.
Section
5.9 Prohibition
on Certain Actions. The
Owner Trustee will not take any action (a) that is inconsistent with the
purposes of the Issuer set forth in Section 2.3 or (b) that, to the knowledge
of
the Owner Trustee, would (i) cause any Class of Notes not be treated as
indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (ii) be deemed to cause a sale or exchange of the Notes for
purposes of Section 1001 of the Code (unless no gain or loss would be recognized
on such deemed sale or exchange for U.S. federal income tax purposes) or
(iii)
cause the Issuer or any portion thereof to be taxable as an association (or
publicly traded partnership) taxable as a corporation for U.S. federal income
or
Applicable Tax State income or franchise tax purposes. The
Administrator will not direct the Owner Trustee to take action that would
violate this Section 5.9.
Section
5.10 Audits
of the Owner Trustee. The
Owner Trustee agrees that, with reasonable prior notice, it will permit any
authorized representative of the Servicer or the Administrator, during the
Owner
Trustee's normal business hours, to examine and audit the books of account,
records, reports and other documents and materials of the Owner Trustee
relating to (a) the performance of the Owner Trustee's obligations under
this
Agreement, (b) any payments of fees and expenses of the Owner Trustee in
connection with such performance and (c) any claim made by the Owner Trustee
under this Agreement. In addition, the Owner Trustee will permit such
representatives to make copies and extracts of any such books and records
and to
discuss the same with the Owner Trustee's officers and
employees. Each of the Servicer and the Administrator will, and will
cause its authorized representatives to, hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent
that the Servicer or the Administrator, as the case may be, may reasonably
determine that such disclosure is consistent with its obligations under this
Agreement. The Owner Trustee will maintain all such pertinent books,
records, reports and other documents and materials for a period of 2 years
after
the termination of its obligations under this Agreement.
10
Section
5.11 Furnishing
of Documents. Upon
request from the holder of the Residual Interest, the Owner Trustee will
furnish
to such holder copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
Section
5.12 Xxxxxxxx-Xxxxx
Act. Notwithstanding
anything to the contrary in any Basic Document, the Owner Trustee will not
be
required to execute, deliver or certify on behalf of the Issuer, the Servicer,
the Depositor or any other Person any filings, certificates, affidavits or
other
instruments required by the Securities and Exchange Commission or required
under the Xxxxxxxx-Xxxxx Act of 2002. However, any entity executing,
delivering or certifying such filings, certificates, affidavits or other
instruments required by the Securities and Exchange Commission or required
under
the Xxxxxxxx-Xxxxx Act of 2002 on behalf of the Issuer may request, at its
option, such subcertifications, including any assessments of compliance required
from the Owner Trustee as it may deem necessary to provide such certifications
and the Owner Trustee will reasonably comply with such request.
Section
5.13 Maintenance
of Licenses. The
Owner Trustee will obtain and maintain any licenses that the Administrator
informs the Owner Trustee are required to be obtained or maintained by the
Owner
Trustee under the laws of any State in connection with the Owner Trustee's
duties and obligations under the Basic Documents.
ARTICLE
VI
REGARDING
THE OWNER TRUSTEE
Section
6.1 Acceptance
of Trusts and Duties. The
Owner Trustee accepts the trusts created by this Agreement and agrees to
perform
its duties under this Agreement with respect to such trusts but only in
accordance with this Agreement. The Owner Trustee also agrees to
distribute all monies actually received by it constituting part of the Trust
Property in accordance with the Basic Documents. The Owner Trustee
will not be liable under any Basic Document under any circumstances, except
(i)
for its own willful misconduct, bad faith or negligence (except for errors
in
judgment) or (ii) if any representation or warranty in Section 6.2 is not
true and correct as of the Closing Date. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the
Owner Trustee will not be liable with respect to any action taken or omitted
to
be taken by it in accordance with the instructions of the Noteholders of
the
Controlling Class, the Indenture Trustee, the Depositor, the holder of the
Residual Interest, the Administrator or the Servicer;
(b) no
Basic Document will require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of its
rights
or powers under any Basic Document if the Owner Trustee has 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;
(c) the
Owner Trustee will not be liable for indebtedness evidenced by or arising
under
any of the Basic Documents, including the principal of and interest on the
Notes
or amounts distributable to the holder of the Residual Interest;
(d) the
Owner Trustee will not be responsible for (i) the validity or sufficiency
of
this Agreement, (ii) the due execution of this Agreement by the Depositor,
(iii)
the form, character, genuineness, sufficiency, value or validity of any of
the Trust Property or (iv) the validity or sufficiency of the other Basic
Documents, the Notes, any Receivable or any related documents, and the
Owner Trustee will in no event assume or incur any liability, duty or
obligation to any Noteholder, the Depositor or the holder of the Residual
Interest, other than as provided for in the Basic Documents;
11
(e) the
Owner Trustee will not be liable for the default or misconduct of the Servicer,
the Administrator, the Depositor, the holder of the Residual Interest or
the
Indenture Trustee under any of the Basic Documents or otherwise and the
Owner Trustee will have no obligation or liability to perform the obligations
of
the Issuer under the Basic Documents that are required to be performed by
the
Administrator under the Administration Agreement, the Servicer under the
Sale and Servicing Agreement or the Indenture Trustee under the
Indenture;
(f) the
Owner Trustee will be under no obligation to exercise any of the rights or
powers vested in it by this Agreement or, at the request, order or direction
of
the Depositor, to institute, conduct or defend any litigation under this
Agreement or in relation to any Basic Document or otherwise unless the Depositor
has offered to the Owner Trustee security or indemnity satisfactory to it
against the costs, expenses, losses, damages, claims and liabilities that
may be
incurred by the Owner Trustee. The right of the Owner Trustee to
perform any discretionary act enumerated in any Basic Document will not be
construed as a duty; and
(g) the
Owner Trustee will not be responsible or liable for (i) the legality,
validity and enforceability of any Receivable, (ii) 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, (iii) the sufficiency
of
the Trust Property or the ability of the Trust Property to generate the amounts
necessary to make payments to the Noteholders under the Indenture or
distributions to the holder of the Residual Interest under this Agreement,
(iv)
the accuracy of any representation or warranty made under any Basic Document
(other than the representations and warranties made in Section 6.2) or (v)
any
action of the Indenture Trustee, the Administrator or the Servicer or any
subservicer taken in the name of the Owner Trustee.
Section
6.2 Representations
and Warranties of the Owner Trustee. The
Owner Trustee represents and warrants to the Depositor as of the Closing
Date:
(a) Organization
and Qualification. The Owner Trustee is duly formed and is
validly existing as a national banking association under the laws of the
State
of Delaware. The Owner Trustee is duly qualified as a national
banking association in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Owner Trustee's ability to perform its obligations under this
Agreement.
(b) Power,
Authorization and Enforceability. The Owner Trustee has the power
and authority to execute deliver and perform the terms this
Agreement. The Owner Trustee has authorized the execution, delivery
and performance of the terms of this Agreement. This Agreement is the
legal, valid and binding obligation of the Owner Trustee enforceable against
the
Owner Trustee, except as may be limited by insolvency, bankruptcy,
reorganization or other laws relating to the enforcement of creditors' rights
or
by general equitable principles.
(c) No
Conflicts and No Violation. The execution and delivery by the
Owner Trustee of this Agreement, the consummation by the Owner Trustee of
the
transactions contemplated by this Agreement and the compliance by the Owner
Trustee with this Agreement will not (i) violate any federal or State law,
governmental rule or regulation governing the banking or trust powers of
the
Owner Trustee or any judgment or order binding on it or (ii) conflict with,
result in a breach of, or constitute (with or without notice or lapse of
time or
both) a default under its charter documents or by-laws or any indenture,
mortgage, deed of trust, loan agreement, guarantee or similar agreement or
instrument under which the Owner Trustee is a debtor or guarantor or (iii)
violate any law or, to the Owner Trustee's knowledge, any order, rule, or
regulation applicable to the Owner Trustee of any court or of any federal
or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Owner Trustee or its properties,
in
each case which conflict, breach, default, lien, or violation would reasonably
be expected to have a material adverse effect on the Owner Trustee's ability
to
perform its obligations under this Agreement.
12
(d) No
Proceedings. To the Owner Trustee's knowledge, there are no
proceedings or investigations pending or overtly threatened in writing, before
any court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Owner Trustee or its properties:
(i) asserting the invalidity of this Agreement (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by any of the Basic Documents, or (iii) seeking any determination
or ruling that would reasonably be expected to have a material adverse affect
on
the Owner Trustee's ability to perform its obligations under, or the validity
or
enforceability of, this Agreement.
(e) Banking
Association. The Owner Trustee is a banking association
satisfying Section 3807(a) of the Delaware Statutory Trust Act.
(f) Information
Provided by the Owner Trustee. The information provided by the
Owner Trustee in any certificate delivered by a Responsible Person of the
Owner
Trustee is true and correct in all material respects.
Section
6.3 Reliance;
Advice of Counsel.
(a) The
Owner Trustee may rely upon, will be protected in relying upon and will incur
no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other
document believed by it to be genuine that appears on its face to be properly
executed and signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or
other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed in this Agreement, the Owner Trustee
may
for all purposes of this Agreement rely on a certificate, signed by the
president or any vice president or by the treasurer or other Responsible
Officers of the relevant party, as to such fact or matter and such certificate
will constitute full protection to the Owner Trustee for any action taken
or
omitted to be taken by it in good faith in reliance thereon.
(b) In
the exercise or administration of the trusts under this Agreement and in
the
performance of its duties and obligations under the Basic Documents, the
Owner
Trustee (i) may act directly or through its agents or attorneys pursuant
to
agreements entered into with any of them and will not be liable for the conduct
or misconduct of such agents or attorneys if the Owner Trustee selects such
agents or attorneys with reasonable care and (ii) may consult with counsel,
accountants and other skilled Persons whom the Owner Trustee selects with
reasonable care and employs. The Owner Trustee will not be liable for
anything it does, suffers or omits to do in good faith in accordance with
the
written opinion or advice of any such counsel, accountants or other such
Persons
that is not contrary to any Basic Document.
Section
6.4 Not
Acting in Individual Capacity. Except
as provided in this Article VI, in accepting the trusts created by this
Agreement, U.S. Bank Trust National Association acts solely as Owner Trustee
under this Agreement and not in its individual capacity. All Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by any Basic Document will look only to the Trust Property for
payment or satisfaction thereof. However, the Owner Trustee will be
responsible for any breach of its representations and warranties made in
Section
6.2 and the validity of its signature on any certificate of authentication
of
the Owner Trustee.
Section
6.5 U.S.
Bank Trust National Association May Own Notes. U.S.
Bank Trust, in its individual or any other capacity, may become the owner
or
pledgee of Notes and may deal with the Depositor, the holder of the Residual
Interest, the Servicer, the Administrator and the Indenture Trustee in banking
transactions with the same rights as it would have if it were not the Owner
Trustee.
13
Section
6.6 Duty
to Update Disclosure. The
Owner Trustee will notify and provide information, and certify such information
in an Officer's Certificate, to the Depositor upon any event or condition
relating to the Owner Trustee or actions taken by the Owner Trustee that
(A) (i)
is required to be disclosed by the Depositor under Item 2 (the institution
of,
material developments in, or termination of legal proceedings against U.S.
Bank
Trust that are material to Noteholders) of Form 10-D under the Exchange Act
within 5 days of such occurrence or (ii) the Depositor reasonably requests
of
the Owner Trustee that the Depositor, in good faith, believes is necessary
to
comply with Regulation AB within 5 days of request or (B) (i) is required
to be
disclosed under Item 6.02 (resignation, removal, replacement or substitution
of
U.S. Bank Trust as Owner Trustee) of Form 8-K under the Exchange Act within
2
days of a Responsible Person of the Owner Trustee becoming aware of such
occurrence or (ii) causes the information provided by the Owner Trustee in
any
certificate delivered by a Responsible Person of the Owner Trustee to be
untrue
or incorrect in any material respect or is necessary to make the statements
provided by the Owner Trustee in light of the circumstances in which they
were
made not misleading within 5 days of a Responsible Person of the Owner Trustee
becoming aware thereof.
ARTICLE
VII
COMPENSATION
AND INDEMNIFICATION OF THE OWNER TRUSTEE; ORGANIZATIONAL EXPENSES
Section
7.1 Owner
Trustee's Fees and Expenses
. The
Owner Trustee will be entitled to receive, as compensation for its services
under this Agreement, such fees as have been separately agreed upon by the
Administrator and the Owner Trustee. The Owner Trustee will also be
entitled to reimbursement for all reasonable out-of-pocket expenses incurred
or
made by the Owner Trustee in performing its rights and duties under this
Agreement, including the reasonable compensation, expenses and disbursements
of
the Owner Trustee's agents, counsel, accountants and experts, but excluding
any
expenses incurred by the Owner Trustee through the Owner Trustee's own willful
misconduct, bad faith or negligence (other than errors in
judgment).
Section
7.2 Indemnification
of the Owner Trustee
(a) The
Depositor will, or will cause the Administrator to, indemnify, defend and
hold
harmless the Owner Trustee, and its respective officers, directors, employees
and agents, from and against any and all costs, expenses, losses, damages,
claims and liabilities (including the reasonable compensation, expenses and
disbursements of the Owner Trustee's agents, counsel, accountants and experts)
incurred by it in connection with the administration of and the performance
of its duties under this Agreement, including the costs and expenses of
defending itself against any loss, damage, claim or liability incurred by
it in
connection with the exercise or performance of any of its powers or duties
under
the Indenture, but excluding any cost, expense, loss, damage, claim or liability
(i) incurred by the Owner Trustee through the Owner Trustee's own willful
misconduct, bad faith or negligence (other than errors in judgment) or (ii)
arising from the inaccuracy of any representation or warranty contained in
Section 6.2.
(b) Promptly
upon receipt by the Owner Trustee, or any of its officers, directors, employees
and agents (each, an "Indemnified Person"), of notice of the commencement
of any Proceeding against any such Indemnified Person, such Indemnified Person
will, if a claim in respect of such Proceeding is to be made under Section
7.2(a), notify the Depositor and the Administrator of the commencement of
such
Proceeding. The Depositor, or, if Depositor so causes, the
Administrator, may participate in and assume the defense and settlement of
any
such Proceeding at its expense, and no settlement of such Proceeding may
be made
without the approval of the Depositor or the Administrator, as applicable,
and such Indemnified Person, which approvals will not be unreasonably
withheld, delayed or conditioned. After notice from the Depositor or
the Administrator, as applicable, to the Indemnified Person of the intention
of
the Depositor or the Administrator, as applicable, to assume the defense
of such
Proceeding with counsel reasonably satisfactory to the Indemnified Person,
and
so long as the Depositor or the Administrator, as applicable, so assumes
the
defense of such Proceeding in a manner reasonably satisfactory to the
Indemnified Person, neither the Depositor nor the Administrator will be liable
for any legal expenses of counsel to the Indemnified Person unless there
is a
conflict between the interests of the Depositor or the Administrator, as
applicable, on one hand, and an Indemnified Person, on the other hand, in
which
case the Depositor, or, if Depositor so causes, the Administrator, will pay
for
the separate counsel to the Indemnified Person.
14
(c) The
Depositor's obligations under this Section 7.2 are obligations solely of
the
Depositor and do not constitute a claim against the Depositor to the extent
that the Depositor does not have funds sufficient to make payment of such
obligations. The Owner Trustee, by entering into or accepting
this Agreement, acknowledges and agrees that it has no right, title or interest
in or to the Other Assets of the Depositor. Notwithstanding the
preceding sentence, if the Owner Trustee either (i) asserts an interest or
claim
to, or benefit from, the Other Assets or (ii) is deemed to have any such
interest, claim to, or benefit in or from the Other Assets, whether by operation
of law, legal process, pursuant to insolvency laws or otherwise (including
by
virtue of Section 1111(b) of the Bankruptcy Code), then the Owner Trustee
further acknowledges and agrees that any such interest, claim or benefit
in or
from the Other Assets is expressly subordinated to the indefeasible payment
in
full of the other obligations and liabilities, which, under the relevant
documents relating to the securitization or conveyance of such Other Assets,
are
entitled to be paid from, entitled to the benefits of, or otherwise secured
by
such Other Assets (whether or not any such entitlement or security interest
is
legally perfected or otherwise entitled to a priority of distributions or
application under applicable law, including insolvency laws, and whether
or not
asserted against the Depositor), including the payment of post-petition interest
on such other obligations and liabilities. This subordination
agreement is deemed a subordination agreement within the meaning of Section
510(a) of the Bankruptcy Code. The Owner Trustee further acknowledges
and agrees that no adequate remedy at law exists for a breach of this Section
7.2(c) and this Section 7.2(c) may be enforced by an action for specific
performance. This Section 7.2(c) is for the third party benefit of
the holders of such other obligations and liabilities and will survive the
termination of this Agreement.
Section
7.3 Organizational
Expenses of the Issuer. The
Depositor will, or will cause the Administrator to, pay the organizational
expenses of the Issuer as they may arise or, upon the request of the Owner
Trustee, the Depositor will, or will cause the Administrator to, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section
7.4 Certain
Expenses of the Indenture Trustee. The
Depositor will reimburse the Indenture Trustee and any successor Indenture
Trustee for any expenses associated with the replacement of the Indenture
Trustee pursuant to Section 6.8 of the Indenture to the extent such amounts
have
not been otherwise paid pursuant to Section 8.2 of the Indenture.
ARTICLE
VIII
TERMINATION
Section
8.1 Termination
of Trust Agreement
(a) This
Agreement (other than the provisions of Article VII) will terminate and be
of no
further force or effect and the Issuer will terminate, wind up and dissolve,
upon the earlier to occur of (i) the last remaining Receivable is paid in
full,
settled, sold or charged off and any amounts received are applied or (ii)
the
payment to the Noteholders and any other holders of securities issued under
any
supplemental indentures or amendments to this Agreement, the Indenture Trustee
and the Owner Trustee of all amounts required to be paid to them pursuant
to the
Indenture, the Sale and Servicing Agreement and Article IV. Any
Insolvency Event, liquidation or dissolution with respect to the Depositor
will
not (A) operate to terminate this Agreement or the Issuer, (B) entitle the
Depositor's legal representatives 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 Trust Property or (C) otherwise affect the rights,
obligations and liabilities of the parties to this
Agreement. Upon dissolution of the Issuer, the Owner Trustee will
wind up the activities and affairs of the Issuer as required by Section 3808
of
the Delaware Statutory Trust Act.
15
(b) The
Depositor may not revoke or terminate the Issuer, unless it is the holder
of
100% of the Residual Interest and in accordance with Section
8.1(a).
(c) Upon
termination of the Issuer any remaining Trust Property will be distributed
to
the holder of the Residual Interest, and the Owner Trustee will cause the
Certificate of Trust to be cancelled by preparing, executing and filing a
certificate of cancellation with the Secretary of State of the State of Delaware
in accordance with Section 3810(c) of the Delaware Statutory Trust
Act or as otherwise required by the Delaware Statutory Trust
Act. Upon the filing of such certificate of cancellation, the Owner
Trustee's services under this Agreement will simultaneously
terminate. The Owner Trustee will deliver a file-stamped copy of such
certificate of cancellation to the Administrator promptly upon such document
becoming available following such filing.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.1 Eligibility
Requirements for the Owner Trustee.
(a) The
Owner Trustee must (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 be otherwise acceptable to the Rating
Agencies. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purpose of this Section 9.1, the combined capital
and
surplus of such corporation will be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If the Owner Trustee ceases to be eligible in accordance
with this Section 9.1, it must resign immediately in the manner and with
the
effect specified in Section 9.2.
(b) The
Owner Trustee must satisfy Section 3807(a) of the Delaware Statutory Trust
Act.
Section
9.2 Resignation
or Removal of the Owner Trustee
(a) The
Owner Trustee may resign and be discharged from the trusts created by this
Agreement by giving notice to the Depositor and the Administrator.
(b) The
Administrator may remove the Owner Trustee upon notice to the Owner Trustee
and
will remove the Owner Trustee if:
(i)
the Owner Trustee ceases to be eligible in accordance with Section
9.1;
(ii) the
Owner Trustee is legally unable to act; or
(iii) an
Insolvency Event with respect to the Owner Trustee has occurred and is
continuing.
(c) If
the Owner Trustee resigns or the Administrator removes the Owner Trustee,
the Administrator will promptly (i) appoint a successor Owner Trustee, by
written instrument, in duplicate and (ii) deliver one copy of such
instrument to the outgoing Owner Trustee and one copy to the successor Owner
Trustee. The Owner Trustee will be entitled to payment through the
date of its resignation or removal from distributions made under Section
8.2 of
the Indenture. If no successor Owner Trustee is appointed and has accepted
such
appointment within 30 days after the Administrator's receipt of notice of
resignation or removal of the Owner Trustee, the outgoing Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee. The right to appoint or to petition for the
appointment of any such successor Owner Trustee does not relieve the outgoing
Owner Trustee from any obligations otherwise imposed on it under the Basic
Documents until the appointment of the successor Owner Trustee has become
effective.
16
(d) No
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to this Section 9.2 will become effective until (i) the
successor Owner Trustee accepts its appointment as the Owner Trustee pursuant
to
Section 9.3(a) and (ii) the successor Owner Trustee files the certificate
of
amendment to the Certificate of Trust referred to in Section
9.3(d). The Administrator will notify the Depositor, the
Indenture Trustee and the Rating Agencies of any resignation or removal of
the
Owner Trustee.
Section
9.3 Successor
Owner Trustee
(a) Any
successor Owner Trustee appointed pursuant to Section 9.2 must execute and
deliver to the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement. Upon the
resignation or removal of the predecessor Owner Trustee becoming effective
pursuant to Section 9.2(d), such successor Owner Trustee, without any further
act, will become fully vested with all the rights, powers, duties, and
obligations of its predecessor under this Agreement. The predecessor
Owner Trustee will, 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
will execute and deliver such instruments and do such other things as may
reasonably be required to vest and confirm in the successor Owner Trustee
all
such rights, powers, duties and obligations.
(b) No
successor Owner Trustee may accept appointment as provided in this Section
9.3 unless, at the time of such acceptance, such successor Owner Trustee
is
eligible pursuant to Section 9.1.
(c) Upon
the acceptance of appointment by a successor Owner Trustee pursuant to this
Section 9.3, the Administrator will notify the Depositor, the Indenture
Trustee, the Noteholders and the Rating Agencies of such successor Owner
Trustee.
(d) Any
successor Owner Trustee appointed under this Agreement will promptly file
a
certificate of amendment to the Certificate of Trust with the Secretary of
State
of the State of Delaware identifying the name and principal place of business
of
such successor Owner Trustee in the State of Delaware. The successor
Owner Trustee will deliver a file-stamped copy of such certificate of amendment
to the Administrator promptly upon such document becoming available following
such filing.
Section
9.4 Merger
or Consolidation of the Owner Trustee. Any
Person (a) into which the Owner Trustee may be merged or converted or with
which
it may be consolidated, (b) resulting from any merger, conversion or
consolidation to which the Owner Trustee is a party or (c) succeeding to
all or
substantially all of the corporate trust business of the Owner Trustee
will, provided such corporation is eligible pursuant to Section 9.1, be the
successor of the Owner Trustee under this Agreement without the execution
or
filing of any document or any further act (except as required under this
Section
9.4), provided that the Owner Trustee (i) notifies the Rating Agencies of
such
merger or consolidation within 15 Business Days of such event and (ii) files
a
certificate of amendment to the Certificate of Trust as required by Section
9.3(d).
Section
9.5 Appointment
of Separate Trustee or Co-Trustee
(a) Notwithstanding
any other provision of this Agreement, for the purpose of meeting any
legal requirements of any jurisdiction in which any part of the Trust Property
or any Financed Vehicle may be located, the Administrator and the Owner
Trustee acting jointly will have the power and will execute and deliver all
instruments to appoint one or more Persons approved by the Owner Trustee
to act
as a separate trustee or as separate trustees, or as co-trustee, jointly
with
the Owner Trustee, of all or any part of the Issuer, and to vest in such
Person,
in such capacity, such title to the Trust Property, or any part thereof,
and,
subject to this Section 9.5, such powers, duties, obligations, rights and
trusts
as the Administrator and the Owner Trustee consider necessary or
desirable. If the Administrator has not joined in such appointment
within 15 Business Days of its receipt of a request so to do, the Owner Trustee
will have the power to make such appointment. No separate
trustee or co-trustee under this Agreement will be required to meet the terms
of
eligibility as a successor trustee pursuant to Section 9.1 and no notice of
the appointment of any separate trustee or co-trustee is required.
17
(b) Each
separate trustee and co-trustee will, to the extent permitted by law, be
appointed and act subject to the following:
(i) all
rights, powers, duties, and obligations conferred or imposed upon the Owner
Trustee will be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed,
the
Owner Trustee is incompetent or unqualified to perform such act or acts,
in
which event such rights, powers, duties, and obligations (including the holding
of title to the Trust Property or any portion thereof in any such
jurisdiction) may be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(ii) no
trustee under this Agreement will be personally liable by reason of any act
or
omission of any other trustee under this Agreement; and
(iii) the
Administrator and the Owner Trustee acting jointly may accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any
notice, request or other writing given to the Owner Trustee will 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 must refer to this Agreement
and
the conditions of this Article IX. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, will 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 in such
instrument, subject to this Agreement. The Owner Trustee will keep a
copy of each such instrument in its files and will deliver a copy of each
such
instrument to the Administrator.
(d) Any
separate trustee or co-trustee may 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 dies,
becomes incapable of acting, resigns or is removed, all of its estates,
properties, rights, remedies and trusts will vest in and be exercised by
the
Owner Trustee, to the extent permitted by law, without the appointment of
a new
or successor trustee.
Section
9.6 Compliance
with Delaware Statutory Trust Act.
Notwithstanding anything in this Agreement to the contrary, the Issuer must
have
at least one trustee that meets the requirements of Section 3807(a) of the
Delaware Statutory Trust Act.
ARTICLE
X
MISCELLANEOUS
Section
10.1 Supplements
and Amendments
(a) This
Agreement may be amended by the holder of the Residual Interest and the Owner
Trustee, with prior notice to the Rating Agencies, without the consent of
any of
the Noteholders, for the purpose of curing any ambiguity or correcting or
supplementing any provisions in this Agreement inconsistent with any other
provision of this Agreement.
18
(b)
This Agreement may be amended by the holder of the Residual Interest and
the
Owner Trustee, with prior notice to the Rating Agencies, without the consent
of
any of the Noteholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement or issuing securities in exchange for all or a portion of the Residual
Interest, subject to the following conditions:
(i)
such holder delivers an Opinion of Counsel to the Indenture Trustee and the
Owner Trustee to the effect that such amendment will not adversely affect
in any
material respect the interest of any Noteholder;
(ii) such
holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to
be
deemed sold or exchanged for purposes of Section 1001 of the Code, (B) cause
the
Issuer to be treated as an association or publicly traded partnership taxable
as
a corporation for U.S. federal income tax purposes, or (C) adversely affect
the
treatment of the Notes as debt for U.S. federal income tax purposes;
and
(iii)
such holder either delivers to the Indenture Trustee and the Owner Trustee
(A)
an Opinion of Counsel to the effect that, after giving effect to such amendment,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any additional security or that the withholding tax
imposed will be no greater than the withholding tax imposed prior to such
amendment or (B) an Officer's Certificate that states withholding is applicable
to payments on any such additional securities, the rate of withholding tax
required on such payments, and that such amounts will be withheld and remitted
to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.
(c) This
Agreement also may be amended by the holder of the Residual Interest and
the
Owner Trustee for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of this Agreement with prior
notice
to the Rating Agencies, subject to the following conditions:
(i) (A)
the Indenture Trustee, to the extent that its rights or obligations would
be
affected by such amendment consents (which consent may not be unreasonably
withheld, delayed or conditioned) and (B) the Noteholders of at least a majority
of the Note Balance of the Notes Outstanding consent to such amendment;
and
(ii) such
holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to
be
deemed sold or exchanged for purposes of Section 1001 of the Code, (B) cause
the
Issuer to be treated as an association or publicly traded partnership taxable
as
a corporation for U.S. federal income tax purposes, or (C) adversely affect
the
treatment of the Notes as debt for U.S. federal income tax purposes;
and
(iii) such
holder either delivers to the Indenture Trustee and the Owner Trustee (A)
an
Opinion of Counsel to the effect that, after giving effect to such amendment,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any additional security as a result of such amendment
or
that the withholding tax imposed will be no greater than the withholding
tax
imposed prior to such amendment or (B) an Officer's Certificate that states
withholding is applicable to payments on any such additional securities,
the
rate of withholding tax required on such amounts, and that such withheld
amounts
are required to be remitted to the Internal Revenue Service in satisfaction
of
the requirements of Sections 1441 and 1442 of the Code.
19
However,
no amendment may (A) increase or reduce the amount of, or accelerate or delay
the timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that are required to be made for the
benefit of the Secured Parties or (B) reduce the percentage of the Note Balance
of the Notes Outstanding required to consent to any such amendment, in each
case, without the consent of all affected Noteholders.
(d) Promptly
after the execution of any such amendment or consent, the Owner Trustee will
notify the Indenture Trustee of the substance of such amendment or
consent.
(e) If
the consent of the Noteholders or the Indenture Trustee is required under
this
Section 10.1, they do not need to approve the particular form of any proposed
amendment or consent so long as their consent approves the substance of the
proposed amendment or consent. The manner of obtaining such consents
will be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(f) Promptly
after the execution of any certificate of amendment to the Certificate of
Trust, the Owner Trustee will cause such amendment to be filed with the
Secretary of State of the State of Delaware. The Owner Trustee will
deliver a file-stamped copy of such certificate of amendment to the
Administrator promptly upon such document becoming available following such
filing.
(g) Before
the execution of any amendment to this Agreement or certificate of amendment
to
the Certificate of Trust, the Owner Trustee will be entitled to receive and
rely
upon an Opinion of Counsel delivered by the holder of the Residual Interest
to
the effect that the execution of such amendment or certificate of amendment,
as
applicable, is authorized or permitted by this Agreement. The
Owner Trustee may enter into any such amendment or certificate of amendment
that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
(h) In
connection with 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 will be entitled to receive and rely upon an Opinion of Counsel
delivered by the holder of the Residual Interest to the effect that such
amendment is authorized or permitted by the Basic Documents and that all
conditions precedent in the Basic Documents for the execution and delivery
thereof by the Issuer or the Owner Trustee, as the case may be, have been
satisfied.
Section
10.2 No
Legal Title to Trust Property in the Holder of the Residual
Interest.
The
holder of the Residual Interest has no legal title to any part of the Trust
Property. The holder of the Residual Interest is entitled to receive
distributions with respect to its Residual Interest only in accordance with
Article VIII of the Indenture. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Depositor to and in the
Residual Interest in the Trust Property will operate to terminate this Agreement
or the trusts under this Agreement or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Property.
Section
10.3 Limitation
on Rights of Others. Except
for Sections 2.6, 7.2 and 10.1, this Agreement is solely for the benefit
of the
Owner Trustee, the Depositor, the Administrator, the Servicer, the holder
of the
Residual Interest and, to the extent provided in this Agreement, the Indenture
Trustee and the Secured Parties, and nothing in this Agreement (other than
Section 2.6), whether express or implied, will be construed to give to any
other
Person any legal or equitable right, remedy or claim in the Trust Property
or
under or in respect of this Agreement or any covenants, conditions or provisions
contained in this Agreement.
20
Section
10.4 Notices.
(a) All
notices, requests, demands, consents, waivers or other communications to
or from
the parties to this Agreement must be in writing and will be deemed to have
been
given and made:
(i)
upon delivery or, in the case of a letter mailed by registered first
class mail, postage prepaid, 3 days after deposit in the mail;
(ii) in
the case of a fax, when receipt is confirmed by telephone, reply email or
reply
fax from the recipient;
(iii) in
the case of an email, when receipt is confirmed by telephone or reply email
from
the recipient; and
(iv) in
the case of an electronic posting to a password-protected website to which
the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Any
such
notice, request, demand, consent or other communication must be delivered
or
addressed as set forth on Schedule B to the Sale and Servicing Agreement
or at
such other address as any party may designate by notice to the other
parties.
(b) Notices
to the Owner Trustee will be addressed to its Corporate Trust Office or to
such
other address designated by the Owner Trustee by notice to the
Depositor.
(c) Any
notice required or permitted to be mailed to a Noteholder must be sent by
overnight delivery, mailed by registered first class mail, postage prepaid,
or
sent by fax, to the address of such Person as shown in the Note
Register. Any notice so mailed within the time prescribed in this
Agreement will be conclusively presumed to have been properly given, whether or
not the Noteholder receives such notice.
Section
10.5 GOVERNING
LAW. THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF DELAWARE.
Section
10.6 WAIVER
OF JURY TRIAL. EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
Section
10.7 Severability. If
any of the covenants, agreements or terms of this Agreement is held invalid,
illegal or unenforceable, then it will be deemed severable from the
remaining covenants, agreements or terms of this Agreement and will in no
way
affect the validity, legality or enforceability of the remaining Agreement
or of
the Notes or the rights of the Noteholders.
Section
10.8 Counterparts. This
Agreement may be executed in any number of counterparts. Each
counterpart will be an original, and all counterparts will together constitute
one and the same instrument.
Section
10.9 Headings. The
headings in this Agreement are included for convenience only and will not
affect
the meaning or interpretation of this Agreement.
21
Section
10.10 No
Petition. The
Owner Trustee (not in its individual capacity but solely as Owner Trustee),
by
entering into this Agreement, covenants and agrees that, before the date
that is
1 year and 1 day after the payment in full of all securities issued by the
Depositor or the Issuer, it will not institute against, or join any other
Person
in instituting against, the Depositor or the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, this Agreement or any of the
Basic
Documents. This Section 10.10 will survive the resignation or removal
of the Owner Trustee under this Agreement and the termination of this
Agreement.
22
EXECUTED
BY:
| FORD CREDIT AUTO RECEIVABLES TWO LLC, | ||
| as Depositor | ||
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxx
|
||
|
Title: Secretary
|
||
| U.S. BANK TRUST | ||
| NATIONAL ASSOCIATION, | ||
| as Owner Trustee | ||
|
By:
|
/s/
Xxxxxx Xxxxx
|
|
|
Name: Xxxxxx
Xxxxx
|
||
|
Title: Vice
President
|
||
23
EXHIBIT
A
FORM
OF
CERTIFICATE OF TRUST OF
This
Certificate of Trust of Ford Credit Auto Owner Trust 2007-B (the "Trust")
is being duly executed and filed by U.S. Bank Trust National Association,
as
owner trustee (the "Owner Trustee"), to form a statutory trust under the
Delaware Statutory Trust Act (12 Delaware Code, § 3801
etseq.) (the "Act").
1.
Name. The name of the statutory trust formed hereby is Ford
Credit Auto Owner Trust 2007-B.
2.
Owner Trustee. The name and business address of the sole
trustee of the Issuer in the State of Delaware is U.S. Bank Trust National
Association, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3.
Effective Date. This Certificate of Trust will be effective upon
filing.
The
undersigned, being the sole trustee of the Issuer, have executed this
Certificate of Trust as of the date first above written in accordance with
Section 3811(a)(2) of the Act.
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
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not
in its individual capacity but solely as Owner Trustee
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By:
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Name:
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Title:
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A-1
