Exhibit 4.2
AMENDED AND RESTATED
TRUST AGREEMENT
between
FORD CREDIT AUTO RECEIVABLES TWO LLC
as Depositor
and
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION
as Owner Trustee
Dated as of April 1, 2005
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
Section 2.1 Name.................................................................................1
Section 2.2 Office...............................................................................1
Section 2.3 Purposes and Powers..................................................................1
Section 2.4 Appointment of Owner Trustee.........................................................2
Section 2.5 Capital Contribution of Trust Property...............................................2
Section 2.6 Declaration of Trust.................................................................3
Section 2.7 Reserved.............................................................................3
Section 2.8 Title to Trust Property..............................................................3
Section 2.9 Situs of Trust.......................................................................3
Section 2.10 Representations and Warranties of the Depositor......................................3
Section 2.11 Tax Matters..........................................................................5
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1 Initial Beneficial Ownership.........................................................6
Section 3.2 Capital Accounts.....................................................................6
Section 3.3 The Certificates.....................................................................7
Section 3.4 Authentication of Certificates.......................................................7
Section 3.5 Registration of Certificates; Transfer and Exchange of Certificates..................8
Section 3.6 Mutilated, Destroyed, Lost or Stolen Certificates...................................12
Section 3.7 Persons Deemed Owners of Certificates...............................................13
Section 3.8 Access to List of Certificateholders' Names and Addresses...........................13
Section 3.9 Maintenance of Office or Agency.....................................................13
Section 3.10 Appointment of Certificate Paying Agent.............................................14
Section 3.11 Certain Rights of Depositor.........................................................14
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with Respect to Certain Matters..................15
Section 4.2 Action by Certificateholders with Respect to Certain Matters........................16
Section 4.3 Action by Certificateholders with Respect to Bankruptcy.............................16
Section 4.4 Restrictions on Certificateholders' Power...........................................16
Section 4.5 Majority Control....................................................................16
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Trust Distribution Account.........................................16
Section 5.2 Application of Trust Funds..........................................................17
Section 5.3 Method of Payment...................................................................18
Section 5.4 No Segregation of Monies; No Interest...............................................18
Section 5.5 Accounting and Reports to Noteholders, Certificateholders,
Internal Revenue Service and Others.................................................19
Section 5.6 Signature on Returns; Tax Matters Partner...........................................19
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1 General Authority...................................................................19
Section 6.2 General Duties......................................................................20
Section 6.3 Action upon Instruction.............................................................21
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions..................22
Section 6.5 No Action Except Under Specified Documents or Instructions..........................22
Section 6.6 Restrictions........................................................................22
Section 6.7 Xxxxxxxx-Xxxxx......................................................................22
Section 6.8 Maintenance of Licenses.............................................................23
ARTICLE VII
REGARDING THE OWNER TRUSTEE
Section 7.1 Acceptance of Trusts and Duties.....................................................23
Section 7.2 Furnishing of Documents.............................................................24
Section 7.3 Representations and Warranties......................................................24
Section 7.4 Reliance; Advice of Counsel.........................................................25
Section 7.5 Not Acting in Individual Capacity...................................................25
Section 7.6 Owner Trustee Not Liable for Certificates or Receivables............................26
Section 7.7 The Bank May Own Securities.........................................................26
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
Section 8.1 Owner Trustee's Fees and Expenses...................................................26
Section 8.2 Indemnification.....................................................................27
Section 8.3 Payments to the Owner Trustee.......................................................28
ARTICLE IX
TERMINATION
Section 9.1 Termination of Trust Agreement......................................................28
Section 9.2 Prepayment of Certificates..........................................................29
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1 Eligibility Requirements for Owner Trustee..........................................30
Section 10.2 Resignation or Removal of Owner Trustee.............................................31
Section 10.3 Successor Owner Trustee.............................................................32
Section 10.4 Merger or Consolidation of Owner Trustee............................................32
Section 10.5 Appointment of Co-Trustee or Separate Trustee.......................................33
Section 10.6 Compliance with Delaware Statutory Trust Act........................................34
ARTICLE XI
MISCELLANEOUS
Section 11.1 Supplements and Amendments..........................................................34
Section 11.2 Audits of the Owner Trustee.........................................................36
Section 11.3 No Legal Title to Trust Property in Certificateholders..............................36
Section 11.4 Limitation on Rights of Others......................................................36
Section 11.5 Notices.............................................................................37
Section 11.6 Severability........................................................................38
Section 11.7 Separate Counterparts...............................................................38
Section 11.8 Successors and Assigns..............................................................38
Section 11.9 No Petition.........................................................................39
Section 11.10 No Recourse.........................................................................39
Section 11.11 Headings............................................................................39
Section 11.12 Governing Law.......................................................................39
Section 11.13 Sale and Servicing Agreement Obligations............................................39
Section 11.14 Confidential Information............................................................39
EXHIBIT A CLASS D CERTIFICATE
EXHIBIT B FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
EXHIBIT C FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR
EXHIBIT D FORM OF RULE 144A TRANSFEROR CERTIFICATE
EXHIBIT E FORM OF CERTIFICATE OF TRUST
APPENDIX A Definitions and Usage
AMENDED AND RESTATED TRUST AGREEMENT, dated as of April 1,
2005 (as from time to time amended, supplemented or otherwise modified and in
effect, this "Agreement"), between FORD CREDIT AUTO RECEIVABLES TWO LLC, a
Delaware limited liability company, as Depositor, having its principal executive
office at Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and WACHOVIA BANK OF
DELAWARE, NATIONAL ASSOCIATION, a national banking association (the "Bank"), not
in its individual capacity but solely as trustee under this Agreement (in such
capacity, the "Owner Trustee"), having its principal corporate trust office at
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration, Xxxxxx Xxxxx for the purpose of establishing the
Ford Credit Auto Owner Trust 2005-B.
WHEREAS, the parties hereto intend to amend and restate that
certain interim Trust Agreement, effective as of November 29, 2004, among the
Depositor, the Owner Trustee and the other parties, signatories thereto, on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that shall
be applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
Section 2.1 Name.
The Trust created hereby shall be known as "Ford Credit Auto
Owner Trust 2005-B", in which name the Owner Trustee may conduct the activities
of the Trust, make and execute contracts and other instruments on behalf of the
Trust and xxx and be sued on behalf of the Trust.
Section 2.2 Office.
The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in the State of Delaware
as the Owner Trustee may designate by written notice to the Certificateholders
and the Depositor.
Section 2.3 Purposes and Powers.
(a) The purpose of the Trust is, and the Trust shall have the power and
authority, to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture, and the Certificates
pursuant to this Agreement, and to sell the Securities upon the written
order of the Depositor;
(ii) to acquire the Receivables and other Trust Property pursuant to the
Sale and Servicing Agreement from the Depositor in exchange for the
Securities;
(iii) to pay interest on and principal of the Notes and distributions on the
Certificates;
(iv) to Grant the Trust Property (other than the Trust Distribution 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
Trust Property and the making of distributions to the Noteholders and
the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents.
Section 2.4 Appointment of Owner Trustee.
The Depositor hereby appoints the Owner Trustee as trustee of
the Trust effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
Section 2.5 Capital Contribution of Trust Property.
At the time of the creation of the Trust, the Depositor sold,
assigned, transferred, conveyed and set over to the Owner Trustee the sum of $1.
The Owner Trustee hereby acknowledges receipt in trust from the Depositor, as of
such date, of the foregoing contribution, which shall constitute the initial
Trust Property and shall be deposited in the Trust Distribution Account. The
Depositor shall pay the organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee. On the Closing Date,
the Depositor shall convey to the Trust the Trust Property and the Owner Trustee
shall convey to the Depositor the Securities.
Section 2.6 Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Trust
Property 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
Trust under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a statutory trust under the Delaware Statutory Trust Act
and that this Agreement constitute the governing instrument of such statutory
trust. The parties agree that, unless otherwise required by the appropriate tax
authorities, the Depositor, on behalf of the Trust, will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as described in Section 2.11 for income and
franchise tax purposes. Effective as of the date hereof, the Owner Trustee shall
have the rights, powers and duties set forth herein and in the Delaware
Statutory Trust Act with respect to accomplishing the purposes of the Trust. A
Certificate of Trust, a form of which is attached hereto as Exhibit E, and any
necessary amendment thereto has been filed with the Secretary of State.
Section 2.7 Reserved.
Section 2.8 Title to Trust Property.
Legal title to the entirety of the Trust Property shall be
vested at all times in the Trust as a separate legal entity, except where
applicable law in any jurisdiction requires title to any part of the Trust
Property to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.9 Situs of Trust.
The Trust shall be administered in the State of Delaware. All
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in the State of Delaware. The Trust shall not have any employees in any
state other than the State of Delaware; provided, however, that nothing herein
shall restrict or prohibit the Bank or the Owner Trustee from having employees
within or without the State of Delaware. Payments will be received by the Trust
only in Delaware, and payments will be made by the Trust only from Delaware. The
principal office of the Trust shall be in care of the Owner Trustee in the State
of Delaware.
Section 2.10 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Owner
Trustee that:
(a) The Depositor is duly organized and validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(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 all jurisdictions in which the ownership or lease of property or
the conduct of its activities shall require such qualifications.
(c) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms, and the Depositor has full power and
authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly authorized such sale and
assignment and deposit to the Trust; and the execution, delivery and performance
of this Agreement has been duly authorized by the Depositor.
(d) This Agreement constitutes a legal, valid, and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws and to general equitable principles.
(e) The consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, the Certificate of Formation or the
Limited Liability Company Agreement, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; 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, 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.
(f) There are no proceedings or investigations pending or, to the Depositor's
best knowledge, threatened 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, the
Indenture, any of the other Basic Documents or the Securities, (ii) seeking to
prevent the issuance of the Securities or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the other
Basic Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of, this Agreement or (iv) which might
adversely affect the federal income tax attributes, or Applicable Tax State
franchise or income tax attributes, of the Securities.
(g) The representations and warranties of the Depositor in Section 3.1 of the
Purchase Agreement are true and correct.
Section 2.11 Tax Matters.
It is the intent of the Depositor and Ford Credit that, for
purposes of U.S. federal income, state and local income and franchise tax and
any other income taxes, the Trust not be treated as an entity separate from the
Depositor and that the Depositor in turn will be disregarded and not treated as
an entity separate from Ford Credit. Accordingly, for so long as the Depositor
owns 100% of the Certificates, each Class of Notes is intended to be treated as
indebtedness of Ford Credit for U.S. federal income tax purposes. The Depositor
hereby agrees and the Noteholders by acceptance of a Note will agree in the
Indenture to such treatment and each agrees to take no action inconsistent with
such treatment. In the event that (i) one or more Classes of Notes is
recharacterized as an equity interest, and not as indebtedness of the Depositor,
or (ii) the Certificates are not 100% owned by the Depositor, the parties intend
that the Trust be characterized as a partnership, in the case of (i) above,
between the Certificateholder and the holders of such Class or Classes of Notes
(the "Recharacterized Classes"), or in the case of (ii) above, among the
Certificateholders and the Depositor. In that event, for purposes of federal
income, state and local income and franchise tax and any other income taxes each
month:
(a) amounts paid as interest to holders of any Recharacterized Class or
Certificate shall be treated as a guaranteed payment within the meaning of
Section 707(c) of the Code;
(b) to the extent the characterization provided for in paragraph (a) of this
Section 2.11 is not respected, gross ordinary income of the Trust for such month
as determined for federal income tax purposes shall be allocated to the holders
of each Recharacterized Class and/or Certificate as of the Record Date occurring
within such month, in an amount equal to the sum of (i) the interest accrued to
such Class or Certificates for such month, (ii) 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 Class and/or
Initial Certificate Balance over the initial aggregate issue price of the Notes
of such Class or Certificates and (iii) any amount expected to be distributed to
the holders of such Class of Securities pursuant to Section 4.7 of the Sale and
Servicing Agreement (to the extent not previously allocated pursuant to this
paragraph (b)) to the extent necessary to reverse any net loss previously
allocated to holders of the Notes of such Recharacterized Class or Certificates
(to the extent not previously reversed pursuant to this clause (iii)); and
(c) thereafter all remaining net income of the Trust (subject to the
modifications set forth below) for such month as determined for federal income
tax purposes (and each item of income, gain, credit, loss or deduction entering
into the computation thereof) shall be allocated to the Depositor, to the extent
thereof.
If the gross ordinary income of the Trust for any month is insufficient for the
allocations described in paragraph (b) above, subsequent gross ordinary income
shall first be allocated to each Recharacterized Class or the Certificates in
alphabetical order to make up such shortfall before any allocation pursuant to
paragraph (c) above. Net losses of the Trust, if any, for any month as
determined for federal income tax purposes (and each item of income, gain,
credit, loss or deduction entering into the computation thereof) shall be
allocated to the Depositor to the extent the Depositor" is reasonably expected
to bear the economic burden of such net losses, and any remaining net losses
shall be allocated first among the holders of the Certificates until the
principal amount thereof is reduced to zero and thereafter to each
Recharacterized Class (in reverse alphabetical order, in each case, until the
principal balance of such Recharacterized Class is reduced to zero) as of the
Record Date occurring within such month, and among the Certificates or each
Recharacterized Class, in proportion to their ownership of the aggregate
principal balance of the Certificates or such Recharacterized Class on such
Record Date. The Depositor is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the
Depositor, the Certificateholders or the holders of a Recharacterized Class or
as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.1 Initial Beneficial Ownership.
Upon the formation of the Trust by the contribution by the
Depositor pursuant to Section 2.5 and until the issuance of the Certificates,
the Depositor shall be the sole beneficial owner of the Trust Property.
Section 3.2 Capital Accounts.
This Section 3.2 will apply only if (i) the Certificates are
held by more than one beneficial owner; (ii) the Certificates and the right to
receive Reserve Account releases and/or other excess spread are held by persons
that constitute more than one taxpayer for U.S. federal income tax purposes or
(iii) any Recharacterized Class, as defined in Section 2.11 hereof, exists.
(a) The Owner Trustee shall establish and maintain a separate bookkeeping
account (a "Capital Account") for the Depositor and each Certificateholder. The
initial balance of the Capital Account for (i) each Certificateholder shall be
the amount initially paid for such Certificateholder's Certificates and (ii) the
Depositor shall be (x) the fair market value of the Receivables minus (y) the
proceeds of the sale of Notes net of the Reserve Initial Deposit. The Capital
Account of the Depositor or each Certificateholder shall also be increased by
(i) the dollar amount of any additional cash contributions made by the Depositor
or such Certificateholder, as the case may be, (ii) the fair market value of any
property (other than cash) contributed to the Trust by the Depositor or such
Certificateholder, as the case may be (net of any liabilities to which the
property is subject), and (iii) allocations to the Depositor or such
Certificateholder, as the case may be, of income and gain (including income
exempt from tax). The Capital Account of the Depositor or each Certificateholder
shall be decreased by (i) the dollar amount of any cash distributions made to
the Depositor or such Certificateholder, as the case may be, (ii) the fair
market value of any property (other than cash) distributed to the Depositor or
such Certificateholder, as the case may be (net of any liabilities to which the
property is subject), (iii) allocations to the Depositor or such
Certificateholder, as the case may be, of loss or deductions (or items thereof),
and (iv) any allocations of expenditures of the Trust described in Section
705(a)(2)(B) of the Code.
(b) Notwithstanding any other provision of this Agreement to the contrary, the
foregoing provisions of this Section 3.2 regarding the maintenance of Capital
Accounts shall be construed so as to comply with the provisions of the Treasury
Regulations promulgated pursuant to Section 704 of the Code. The Depositor is
hereby authorized to modify these provisions to the minimum extent necessary to
comply with such regulations.
Section 3.3 The Certificates.
(a) The Class D Certificates in aggregate principal amount of $59,519,000 shall
be issued to the Depositor in one or more registered, definitive, physical
certificates, in the form set forth in Exhibit A in denominations of at least
$20,000 and in integral multiples of $1,000 in excess thereof. No Certificate
may be sold, transferred, assigned, participated, pledged, or otherwise disposed
of (any such act, a "Transfer") to any Person except in accordance with the
provisions of Section 3.5, and any attempted Transfer in violation of Section
3.5 shall be null and void (each a "Void Transfer"). In addition, the Depositor
covenants and agrees that it will not Transfer the Class D Certificates unless
it shall have delivered an Opinion of Counsel to the Owner Trustee that (i) such
Transfer shall not cause the Trust to be classified as an association (or
publicly traded partnership) taxable as a corporation and (ii) such Transfer
shall not cause the Trust to be subject to the Michigan Single Business Tax or
any other entity level tax imposed by the State of Michigan.
(b) The Certificates shall be executed on behalf of the Trust 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 Trust, 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.
(c) If Transfer of the Certificates is permitted pursuant to Section 3.5, 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 transferees acceptance of a Certificate duly registered in
such transferees name pursuant to Section 3.5.
Section 3.4 Authentication of Certificates.
Concurrently with the initial sale of the Receivables to the
Trust pursuant to the Sale and Servicing Agreement, the Owner Trustee shall
cause the Class D Certificates, in an aggregate principal balance equal to the
Initial Certificate Balance of such Class D Certificates, to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by the chairman of the board, the president, any executive
vice president, any vice president, the secretary, any assistant secretary, the
treasurer or any assistant treasurer of the Depositor, without further action by
the Depositor, in authorized denominations. No Certificate shall entitle its
Certificateholder to any benefit under this Agreement, or shall be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A attached hereto
executed by the Owner Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 3.5 Registration of Certificates; Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.9, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trust shall
provide for the registration of Certificates and of Transfers and exchanges of
Certificates as herein provided. Wachovia Bank of Delaware, National Association
shall be the initial Certificate Registrar. No Transfer of a Certificate shall
be recognized except upon registration of such Transfer in the Certificate
Register.
(b) Each Class D Certificate shall bear a legend to the following effect unless
determined otherwise by the Administrator (as certified to the Owner Trustee in
an Officer's Certificate) and the Owner Trustee consistent with applicable law:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (I)
(A) (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN
THE MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST
AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT B TO THE TRUST AGREEMENT,
WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE OWNER TRUSTEE AND DEPOSITOR,
(2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL
PURCHASER AND THE CERTIFICATE REGISTRAR OF AN OPINION OF COUNSEL ACCEPTABLE TO
THE OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND
OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT C TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST, THE INITIAL
PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND (B) IN THE CASE OF A TRANSFER PURSUANT TO CLAUSES (A)(1),
(2) OR (3), THE RECEIPT BY THE OWNER TRUSTEE AND THE DEPOSITOR OF THE STATE TAX
OPINION REQUIRED BY SECTION 3.3(a) OF THE TRUST AGREEMENT, OR (II) TO THE
DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES."
As a condition to the registration of any Transfer of a
Certificate, the prospective transferee of such Certificate shall be required to
represent in writing to the Owner Trustee, the Certificate Registrar and the
Initial Purchaser the following, unless determined otherwise by the
Administrator (as certified to the Owner Trustee in an Officer's Certificate):
(i) It understands that no subsequent Transfer of the Certificates is
permitted unless it causes its proposed transferee to provide to the
Trust, the Certificate Registrar and the Initial Purchaser a letter
substantially in the form of Exhibit B or Exhibit C hereof (with such
changes therein as may be approved by the Depositor), as applicable, or
such other written statement as the Depositor shall prescribe.
(ii) It is either:
(A) not, and each account (if any) for which it is purchasing the
Certificates is not (1) an employee benefit plan, as defined in Section
3(3) of ERISA, whether or not subject to Title I of ERISA, (2) a plan
described in Section 4975(e)(1) of the Code whether or not subject to
Section 4975 of the Code, (3) a governmental plan, as defined in Section
3(32) of ERISA, (4) 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. ss. 2510.3-101 or otherwise under
ERISA) or (5) a person investing "plan assets" of any such plan (including
without limitation, for purposes of this clause (5), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended); or
(B) an insurance company acting on behalf of a general account and (1) on
the date of purchase less than 25% (or such lower percentage as may be
determined by the Depositor) of the assets of such general account (as
reasonably determined by it) constitute "plan assets" for purposes of Title
I of ERISA and Section 4975 of the Code, (2) the purchase and holding of
such Certificates are eligible for exemptive relief under Section (I) of
Prohibited Transaction Class Exemption 95-60, and (3) the purchaser agrees
that if, after the purchaser's initial acquisition of the Certificates, at
any time during any calendar quarter 25% (or such lower percentage as may
be determined by the Depositor) or more of the assets of such general
account (as reasonably determined by it no less frequently than each
calendar quarter) constitute "plan assets" for purposes of Title I of ERISA
or Section 4975 of the Code and no exemption or exception from the
prohibited transaction rules applies to the continued holding of the
Certificates under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the United States
Department of Labor under ERISA, it will dispose of all Certificates then
held in its general account by the end of the next following calendar
quarter.
(iii) It is a person who is (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (C) an estate the
income of which is includible in gross income for United States tax
purposes, regardless of its source, (D) a trust if a U.S. court is able
to exercise primary supervision over the administration of such trust
and one or more persons described in clause (A), (B), (C) or (E) of
this paragraph (iii) has the authority to control all substantial
decisions of the trust or (E) a person not described in clauses
(A) through (D) of this paragraph (iii) whose ownership of the
Certificates is effectively connected with such persons conduct of a
trade or business within the United States (within the meaning of the
Code) and who provides the Trust and the Depositor with an
IRS Form W-8ECI (and such other certifications, representations, or
opinions of counsel as may be requested by the Trust or the Depositor).
(iv) It understands that any purported Transfer of any Certificate (or any
interest therein) in contravention of any of the restrictions and
conditions contained in this Section will be a Void Transfer, and the
purported transferee in a Void Transfer will not be recognized by the
Trust or any other person as a Certificateholder for any purpose.
(c) By acceptance of any Certificate, the Certificateholder thereof
specifically agrees with and represents to the Depositor, the Trust and
the Certificate Registrar, that no Transfer of such Certificate shall
be made unless the registration requirements of the Securities Act and
any applicable State securities laws are complied with, or such
Transfer is exempt from the registration requirements under the
Securities Act because the Transfer satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A under the Securities Act
("Rule 144A"), to a transferee who the transferor reasonably believes
is a Qualified Institutional Buyer that is purchasing for its own
account or for the account of a Qualified Institutional Buyer and to
whom notice is given that such Transfer is being made in reliance upon
Rule 144A under the Securities Act and (x) the transferor executes and
delivers to the Trust and the Certificate Registrar, a Rule 144A
transferor certificate substantially in the form attached as Exhibit D
and (y) the transferee executes and delivers to the Trust and the
Certificate Registrar an investment letter substantially in the form
attached as Exhibit B;
(ii) after the appropriate holding period, such Transfer is pursuant to an
exemption from registration under the Securities Act provided by Rule
144 under the Securities Act and the transferee, if requested by the
Trust, the Certificate Registrar or the Initial Purchaser, delivers an
Opinion of Counsel in form and substance satisfactory to the Trust and
the Initial Purchaser; or
(iii) such Transfer is to an institutional accredited investor as defined in
rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the
Securities Act in a transaction exempt from the registration
requirements of the Securities Act, such Transfer is in accordance with
any applicable securities laws of any State of the United States or any
other jurisdiction, and such investor executes and delivers to the
Trust and the Certificate Registrar an investment letter substantially
in the form attached as Exhibit C.
(d) The Depositor shall make available to the prospective transferor and
transferee of a Certificate information requested to satisfy the
requirements of paragraph (d) (4) of Rule 144A (the "Rule 144A
Information"). The Rule 144A Information shall include any or all of
the following items requested by the prospective transferee:
(i) the private placement memorandum, if any, relating to the Certificates,
and any amendments or supplements thereto;
(ii) each statement delivered to Certificateholders pursuant to
Section 5.2(b) on each Payment Date preceding such request; and
(iii) such other information as is reasonably available to the Owner Trustee
in order to comply with requests for information pursuant to Rule 144A
under the Securities Act.
None of the Depositor, the Certificate Registrar or the Owner
Trustee is under an obligation to register any Certificate under the Securities
Act or any other securities law.
(e) Upon surrender for registration of Transfer of any Certificate at the office
or agency maintained pursuant to Section 3.9 and upon compliance with any
provisions of this Agreement relating to such Transfer, the Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
Class and aggregate amount dated the date of authentication by the Owner Trustee
or any authenticating agent. At the option of a Certificateholder, Certificates
may be exchanged for other Certificates of authorized denominations of a like
Class and aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.9.
Every Certificate presented or surrendered for registration of
Transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney in writing, with such
signature guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company. Each Certificate surrendered for registration
of Transfer or exchange shall be cancelled 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 or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any Transfer or
exchange of Certificates.
The preceding provisions of this Section 3.5 notwithstanding,
the Owner Trustee shall not make and the Certificate Registrar need not register
any Transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Payment Date for any payment with respect to the Certificates.
Section 3.6 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be 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 shall have been acquired by
a protected purchaser, the Owner Trustee on behalf of the Trust shall execute
and the Owner Trustee shall authenticate and deliver, in exchange for, or in
lieu of, any such mutilated, destroyed, lost or stolen Certificate a new
Certificate of like Class, tenor and denomination. In connection with the
issuance of any new Certificate under this Section 3.6, the Owner Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section 3.6 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.7 Persons Deemed Owners of Certificates.
Prior to due presentation of a Certificate for registration of
Transfer, the Owner Trustee, the Certificate Registrar and any Certificate
Paying Agent may treat the Person in whose name any Certificate shall be
registered in the Certificate Register as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 5.2 and for all other
purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or
any Certificate Paying Agent shall be bound by any notice to the contrary.
Section 3.8 Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to
the Servicer and the Depositor, or to the Indenture Trustee, within fifteen (15)
days after receipt by the Owner Trustee of a written request therefor from the
Servicer or the Depositor, or the Indenture 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. Three or
more Certificateholders may apply in writing to the Owner Trustee for a list of
the other Certificateholders in order to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates. Any such application must be accompanied by a copy of the
communication that such applicants propose to transmit. The Owner Trustee shall,
within five (5) 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 3.9 Maintenance of Office or Agency.
The Owner Trustee 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 Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates its Corporate Trust Office for such purposes. The
Owner Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Registrar or
any such office or agency.
Section 3.10 Appointment of Certificate Paying Agent.
The Certificate Paying Agent shall make distributions to
Certificateholders from the Trust Distribution Account pursuant to Section 5.2
and shall report the amounts of such distributions to the Owner Trustee. Any
Certificate Paying Agent shall have the revocable power to withdraw funds from
the Trust Distribution Account for the purpose of making the distributions
referred to above. The Owner Trustee may revoke such power and remove the
Certificate Paying Agent if the Owner Trustee determines in its sole discretion
that the Certificate Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Certificate Paying Agent shall
initially be the Owner Trustee, and any co-paying agent chosen by the Owner
Trustee. The Owner Trustee shall be permitted to resign as Certificate Paying
Agent upon thirty (30) days written notice to the Owner Trustee. In the event
that the Bank shall no longer be the Certificate Paying Agent, the Owner Trustee
shall appoint a successor to act as Certificate Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Certificate
Paying Agent or any additional Certificate Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Owner Trustee that as Certificate Paying Agent, such successor
Certificate Paying Agent or additional Certificate 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 Certificate Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and
8.1 shall apply to the Owner Trustee also in its role as Certificate Paying
Agent, for so long as the Owner Trustee shall act as Certificate Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Certificate Paying Agent shall include
any co-paying agent unless the context requires otherwise.
Section 3.11 Certain Rights of Depositor.
The Depositor shall be entitled to any amounts not needed on
any Payment Date to make payments on the Notes or the Certificates or to make
deposits to the Reserve Account pursuant to Section 4.7 of the Sale and
Servicing Agreement, and to receive amounts remaining in the Reserve Account
following the payment in full of the aggregate principal amount of the Notes and
the Aggregate Certificate Balance and of all other amounts owing or to be
distributed hereunder or under the Indenture or the Sale and Servicing Agreement
to Noteholders and Certificateholders and the termination of the Trust. The
Depositor shall not Transfer any such rights unless it shall have delivered an
Opinion of Counsel to the Owner Trustee that (i) such Transfer shall not cause
the Trust to be classified as an association (or publicly traded partnership)
taxable as a corporation and (ii) such Transfer shall not cause the Trust to be
subject to the Michigan Single Business Tax or any other entity level tax
imposed by the State of Michigan.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters.
It is the intention of the Depositor and the
Certificateholders that the powers and duties of the Owner Trustee are
ministerial and non-ministerial; provided, however, that any non-ministerial
action (including the taking of any legal action) may only be taken by the Owner
Trustee in accordance with this Section 4.1. With respect to the following
matters, the Owner Trustee shall not take action unless, (I) at least thirty
(30) days before the taking of such action, the Owner Trustee shall have
notified the Certificateholders and the Rating Agencies in writing of the
proposed action and (II) Certificateholders holding not less than a majority of
the Aggregate Certificate Balance 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 material claim or lawsuit by the Trust (except claims
or lawsuits brought by the Servicer in connection with the collection of the
Receivables) and the settlement of any material action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection by the Servicer of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of Trust
(unless such amendment is required to be filed under the Delaware Statutory
Trust Act);
(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 any of the Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing Agreement or
the Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or to add any provision that would not
materially adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note Registrar,
Note 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, Note Paying Agent or Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable.
Section 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee may not, except upon the occurrence of an
Event of Servicing Termination subsequent to the payment in full of the Notes
and in accordance with the written direction of a majority of the Controlling
Certificate Class, (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Article VIII thereof, (b) appoint a successor Servicer
pursuant to Article VIII of the Sale and Servicing Agreement, (c) remove the
Administrator under the Administration Agreement pursuant to Section 9 thereof
or (d) appoint a successor Administrator pursuant to Section 9 of the
Administration Agreement.
Section 4.3 Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Trust unless the Notes have
been paid in full and each Certificateholder (other than the Depositor) approves
of such commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
Section 4.4 Restrictions on Certificateholders' Power.
The Certificateholders shall not direct the Owner Trustee to
take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.3, nor shall the Owner Trustee be obligated to follow any such direction, if
given.
Section 4.5 Majority Control.
Except as expressly provided herein, any action that may be
taken by the Certificateholders under this Agreement may be taken by the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance. Except as expressly provided herein, any written
notice of the Certificateholders delivered pursuant to this Agreement shall be
effective if signed by Certificateholders of Certificates evidencing not less
than a majority of the Aggregate Certificate Balance at the time of the delivery
of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1 Establishment of Trust Distribution Account.
Pursuant to Section 4.1(c) of the Sale and Servicing
Agreement, there has been established and there shall be maintained a trust
account, in the name of "Wachovia Bank of Delaware, National Association, as
Owner Trustee" at a Qualified Institution or Qualified Trust Institution (which
shall initially be the corporate trust department of the Bank), which shall be
designated as the "Trust Distribution Account." Except as expressly provided in
Section 3.10, the Trust Distribution Account shall be under the sole dominion
and control of the Owner Trustee. All monies deposited from time to time in the
Trust Distribution Account pursuant to the Sale and Servicing Agreement shall be
applied as provided in the Basic Documents. In the event that the Trust
Distribution Account is no longer to be maintained at the corporate trust
department of the Bank, the Servicer shall, with the Owner Trustee's assistance
as necessary, cause the Trust Distribution Account to be moved to a Qualified
Institution or a Qualified Trust Institution within ten (10) Business Days (or
such longer period not to exceed thirty (30) calendar days as to which each
Rating Agency may consent). The Trust Distribution Account will be established
and maintained pursuant to an account agreement which specifies New York law as
the governing law.
Section 5.2 Application of Trust Funds.
(a) On each Payment Date, the Owner Trustee shall, based on the
information contained in the Monthly Investor Report delivered
on the relevant Determination Date pursuant to Section 3.9 of
the Sale and Servicing Agreement withdraw the amounts
deposited into the Trust Distribution Account pursuant to
Section 4.7(c)(viii) and Section 4.7(d)(vii) of the Sale and
Servicing Agreement on or prior to such Payment Date and make
or cause to be made distributions and payments in the
following order of priority:
(1) first, to the Certificateholders of Class D Certificates, an
amount equal to the Accrued Class D Certificate Interest;
provided, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class D Certificate
Interest, the amounts available shall be applied to the
payment of such interest on the Class D Certificates on a pro
rata basis;
(2) second, to the Certificateholders of the Class D Certificates
in reduction of the Certificate Balance of the Class D
Certificates, until the Certificate Balance of the Class D
Certificates has been reduced to zero; provided, that if there
are not sufficient funds available to reduce the Certificate
Balance of the Class D Certificates to zero, the amounts
available shall be applied to the reduction of the Certificate
Balance of the Class D Certificates on pro rata basis; and
(3) third, to the Depositor, any funds remaining on deposit in the
Trust Distribution Account.
(b) On each Payment Date, the Owner Trustee shall, or shall cause
the Certificate Paying Agent to, send to each
Certificateholder as of the related Record Date the statement
provided to the Owner Trustee by the Servicer pursuant to
Section 4.9 of the Sale and Servicing Agreement with respect
to such Payment Date.
(c) In the event that any withholding tax is imposed on the
Trust'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 5.2. The Owner Trustee and each Certificate
Paying Agent is 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 Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such
tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash
distributed to such Certificateholder at the time it is
withheld by the Trust and remitted to the appropriate taxing
authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution
to a non-U.S. Certificateholder), the Owner Trustee may, in
its sole discretion, withhold such amounts in accordance with
this paragraph (c). In the event that a Certificateholder
wishes to apply for a refund of any such withholding tax, the
Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for
any out-of-pocket expenses incurred.
Section 5.3 Method of Payment.
Subject to Section 9.1(c), distributions required to be made
to Certificateholders on any Payment Date shall be made to each
Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if (i) such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five (5) Business Days prior
to such Payment Date and such Certificateholder's Certificates in the aggregate
evidence a denomination of not less than $1,000,000, or (ii) such
Certificateholder is the Depositor 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 applicable Final Scheduled Payment
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 Owner
Trustee pursuant to Section 3.9.
Section 5.4 No Segregation of Monies; No Interest.
Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law, the Indenture or the Sale and Servicing Agreement, and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
Section 5.5 Accounting and Reports to Noteholders, Certificateholders,
Internal Revenue Service and Others.
If at any time the Trust is not treated as a disregarded
entity for U.S. federal income tax purposes, the Owner Trustee shall, based on
information provided by or on behalf of the Depositor, (a) maintain (or cause to
be maintained) the books of the Trust on the basis of a fiscal year ending
December 31 and based on the accrual method of accounting, (b) deliver (or cause
to be delivered) 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 each Certificateholder or holder of a Recharacterized
Class to prepare its federal and State income tax returns, (c) file (or cause to
be filed) such tax returns relating to the Trust (including a partnership
information return, IRS Form 1065), 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 (i) so that the Trust is not treated as an entity
separate from the Depositor for U.S. federal income tax purposes if the Trust
has no equity owner other than the Depositor (as determined for U.S. federal
income tax purposes) or (ii) so as to maintain the Trust's characterization as a
partnership for federal income tax purposes if the Trust has more than one
equity owner (for U.S. federal income tax purposes), (d) cause such tax returns
to be signed in the manner required by law and (e) collect (or cause to be
collected) any withholding tax as described in and in accordance with Section
5.2(c) with respect to income or distributions to Certificateholders. At such
time, if any, as the Trust is not classified as a disregarded entity, the Owner
Trustee 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 shall not make the election provided under Section 754 of the
Code.
Section 5.6 Signature on Returns; Tax Matters Partner.
(a) If at any time the Trust does not qualify as a disregarded entity for U.S.
federal income tax purposes, the legal entity that holds, or is deemed to hold
under applicable law and regulations, the right to receive releases from the
Reserve Account and/or spread shall prepare (or cause to be prepared) and sign,
on behalf of the Trust, the tax returns of the Trust.
(b) The entity that is required to prepare the tax returns of the Trust pursuant
to section 5.6(a) shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.1 General Authority.
The Owner Trustee is authorized and directed to execute and
deliver on behalf of the Trust the Basic Documents to which the Trust is to be a
party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment or other agreement, in each case, in such form as the Depositor shall
approve, 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:
(i) Class A-1 Notes in the aggregate principal amount of $486,000,000;
(ii) Class A-2 Notes in the aggregate principal amount of $990,000,000;
(iii) Class A-3 Notes in the aggregate principal amount of $881,000,000;
(iv) Class A-4 Notes in the aggregate principal amount of $470,165,000;
(v) Class B Notes in the aggregate principal amount of $89,279,000; and
(vi) Class C Notes in the aggregate principal amount of $59,519,000.
In addition to the foregoing, the Owner Trustee is authorized to take all
actions required of the Trust pursuant to the Basic Documents. The Owner Trustee
is further authorized from time to time to take such action on behalf of the
Trust as is permitted by the Basic Documents and which the Servicer or the
Administrator directs with respect to the Basic Documents, except to the extent
that this Agreement expressly requires the consent of Certificateholders for
such action.
Section 6.2 General Duties.
Subject to Section 4.1 hereof, 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 the other Basic
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, subject to the lien of the Indenture and in
accordance with the provisions of this Agreement and the other Basic Documents.
Notwithstanding anything else to the contrary in this Agreement, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and 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 Trust hereunder or under any other Basic
Document, and the Owner Trustee shall not be held liable for the default or
failure of the Administrator to carry out its obligations under the
Administration Agreement. Except as expressly provided in the Basic Documents,
the Owner Trustee shall 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 6.3 Action upon Instruction.
(a) Subject to Article IV, 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 Trust.
(b) The Owner Trustee shall not be required to take any action hereunder or
under any Basic Document if the Owner Trustee shall have reasonably determined,
or shall have been advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or
of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Agreement or any other
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any 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 instruction within ten (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 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) 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
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 instruction within ten (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 shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
Section 6.4 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 Trust Property, 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 Trust 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 6.3; 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
Trust 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 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 6.5 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 Trust Property except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the other Basic
Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders shall
direct the Trustee to take any action that would violate the provisions of this
Section 6.5.
Section 6.6 Restrictions.
The Owner Trustee shall not take any action (a) that is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (b)
that, to the actual knowledge of the Owner Trustee, would (i) affect the
treatment of the Notes as indebtedness for U.S. federal income or Applicable Tax
State income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for U.S. federal income or Applicable Tax State income or
franchise tax purposes or (iii) cause the Trust or any portion thereof to be
taxable as an association (or publicly traded partnership) taxable as a
corporation for federal income or Applicable Tax State income or franchise tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.6.
Section 6.7 Xxxxxxxx-Xxxxx.
Notwithstanding anything to the contrary herein or in any
other document, the Owner Trustee shall not be required to execute, deliver or
certify on behalf of the Trust, the Servicer, the Depositor or any other Person
any filings, certificates, affidavits or other instruments required by the SEC
or required under the Xxxxxxxx-Xxxxx Act of 2002; provided, however, that the
entity executing, delivering or certifying such filings, certificates,
affidavits or other instruments required by the SEC or required under the
Xxxxxxxx-Xxxxx Act of 2002 may at its option request such subcertifications from
the Owner Trustee as it may deem necessary from time to time to provide such
certifications and the Owner Trustee shall reasonably comply with such request.
Notwithstanding any Person's right to instruct the Owner Trustee, neither the
Owner Trustee nor any agent, employee, director or officer of the Owner Trustee
shall have any obligation to execute any certificates or other documents
required by the SEC or required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 or
the rules and regulations promulgated thereunder, and the refusal to comply with
any such instructions shall not constitute a default or breach under this
Agreement or any other document in connection herewith.
Section 6.8 Maintenance of Licenses.
The Owner Trustee will obtain and maintain the license
required to be obtained or maintained by the Owner Trustee under the
Pennsylvania Motor Vehicle Sales Finance Act in connection with the Owner
Trustee's duties and obligations under the Basic Documents.
ARTICLE VII
REGARDING THE OWNER TRUSTEE
Section 7.1 Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts hereby created and agrees
to perform its duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all monies
actually received by it constituting part of the Trust Property upon the terms
of this Agreement and the other Basic Documents to which the Owner Trustee is a
party. 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 7.3. 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 with respect to any action taken or
omitted to be taken by it in accordance with the instructions of any
Certificateholder, the Indenture Trustee, the Depositor, the Administrator or
the Servicer;
(b) no provision of this Agreement or any other Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any other
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) under no circumstances shall the Owner Trustee be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the
principal of and interest on the Notes or amounts distributable on the
Certificates;
(d) 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 Trust Property or for or in respect of the validity or
sufficiency of the other Basic Documents, other than the certificate of
authentication on the Certificates, and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the other
Basic Documents;
(e) the Owner Trustee shall not be liable for the default or misconduct of the
Servicer, the Administrator, the Depositor or the Indenture Trustee under any of
the Basic Documents or otherwise and the Owner Trustee shall have no obligation
or liability to perform the obligations of the Trust under this Agreement or the
other 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; and
(f) 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 for other than its willful misconduct,
bad faith or negligence in the performance of any such act.
Section 7.2 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.
Section 7.3 Representations and Warranties.
The Owner Trustee hereby represents and warrants to the
Depositor, for the benefit of the Certificateholders, that:
(a) It is a national banking association duly formed and validly existing under
the laws of the United States, with its principal place of business in the State
of Delaware. It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) 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.
(c) 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 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
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
Section 7.4 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. The Owner Trustee may accept a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the method of the determination of which is not specifically
prescribed herein, the Owner Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other Authorized Officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents 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) may 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 7.5 Not Acting in Individual Capacity.
Except as provided in this Article VII, in accepting the
trusts hereby created, Wachovia Bank of Delaware, National Association acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only to
the Trust Property for payment or satisfaction thereof.
Section 7.6 Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other
than the signature and countersignature 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
make no representations as to the validity or sufficiency of this Agreement, of
any other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or the Notes, or of
any Receivable or related documents. Neither the Bank nor the Owner Trustee
shall 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 Trust Property or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders under
the Indenture, including, without limitation: 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
Trust or any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Depositor or
the Servicer with any warranty or representation made under any Basic Document
or in any related document, or the accuracy of any such warranty or
representation or any action of the Indenture Trustee, the Administrator or the
Servicer or any subservicer taken in the name of the Owner Trustee.
Section 7.7 The Bank May Own Securities.
The Bank, in its individual or any other capacity, may become
the owner or pledgee of Securities and may deal with the Depositor, 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.
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
Section 8.1 Owner Trustee's Fees and Expenses.
The Depositor shall, or shall cause the Administrator to, pay
to the Owner Trustee from time to time reasonable compensation for its services.
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
Administrator and the Owner Trustee. The Depositor shall, or shall cause the
Administrator to, reimburse the Owner Trustee 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. The tax deduction for such amounts shall be allocated to the
Administrator.
Section 8.2 Indemnification.
(a) The Depositor, or if the Depositor so causes, the Administrator, shall be
liable as prime obligor for, and shall indemnify the Bank and the Owner Trustee
and its respective successors, assigns, agents and servants (collectively, the
"Indemnified Parties") from and against, any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (collectively, "Expenses") which may at any
time be imposed on, incurred by, or asserted against the Bank and the Owner
Trustee or any Indemnified Party in any way relating to or arising out of this
Agreement, the other Basic Documents, the Trust Property, the administration of
the Trust Property or the action or inaction of the Owner Trustee hereunder;
provided, that the Depositor shall not be liable for or required to indemnify an
Indemnified Party from and against Expenses arising or resulting from (i) the
Indemnified Party's own willful misconduct, bad faith or negligence, or (ii) the
inaccuracy of any representation or warranty contained in Section 7.3 expressly
made by the Indemnified Party. The indemnities contained in this Section 8.2
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 8.2, the Owner
Trustee's choice of legal counsel shall be subject to the approval of the
Depositor, which approval shall not be unreasonably withheld.
(b) The Depositor's obligations under this Section 8.2 are obligations solely of
the Depositor and shall not constitute a claim against the Depositor to the
extent that the Depositor does not have funds sufficient to make payment of such
obligations. In furtherance of and not in derogation of the foregoing, the
Indemnified Parties acknowledge and agree that they shall have no right, title
or interest in or to the Other Assets of the Depositor. To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentence, any Indemnified Party (i) asserts an interest or claim to, or benefit
from, Other Assets, or (ii) is deemed to have any such interest, claim to, or
benefit in or from Other Assets, whether by operation of law, legal process,
pursuant to applicable provisions of insolvency laws or otherwise (including by
virtue of Section 1111(b) of the Bankruptcy Code or any successor provision
having similar effect under the Bankruptcy Code), then such Indemnified Party
further acknowledges and agrees that any such interest, claim or benefit in or
from Other Assets is and shall be expressly subordinated to the indefeasible
payment in full of the other obligations and liabilities, which, under the terms
of 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 shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Indemnified Party further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 8.2(b) and the terms of this Section 8.2(b) may be enforced by an
action for specific performance. The provision of this Section 8.2(b) shall be
for the third party benefit of those entitled to rely thereon and shall survive
the termination of this Agreement.
Section 8.3 Payments to the Owner TrusteeAny amounts paid to the Owner Trustee
pursuant to this Article VIII shall be deemed not to be a part of the Trust
Property immediately after such payment.
ARTICLE IX
TERMINATION
Section 9.1 Termination of Trust Agreement.
(a) This Agreement (other than the provisions of Article VIII) shall terminate
and be of no further force or effect and the Trust shall wind up and dissolve,
upon the earlier of (i) the maturity or other liquidation of the last remaining
Receivable and the disposition of any amounts received upon such maturity or
liquidation and (ii) the payment to the Noteholders and the Certificateholders
of all amounts required to be paid to them pursuant to the terms of the
Indenture, the Sale and Servicing Agreement and Article V. Any Insolvency Event,
liquidation, dissolution, death or incapacity with respect to any
Certificateholder, shall neither (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Property nor
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto. Upon dissolution of the Trust, the Owner Trustee shall wind up the
activities and affairs of the Trust as required by Section 3808 of the Delaware
Statutory Trust Act.
(b) Neither the Depositor nor any Certificateholder shall be entitled to revoke
or terminate the Trust prior to the termination of the Indenture and payment in
full of the Notes.
(c) Notice of any termination of the Trust, specifying the Payment Date upon
which the Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Owner Trustee by letter to Certificateholders mailed
within five (5) Business Days of receipt of notice of such termination from the
Servicer, stating (i) the Payment 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 Certificate Paying Agent therein designated,
(ii) the amount of any such final payment (after reservation of sums sufficient
to pay all claims and obligations, if any, known to the Owner Trustee and
payable by the Trust) and (iii) that the Record Date otherwise applicable to
such Payment Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Certificate Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Certificate Paying Agent at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Certificate Paying Agent shall cause to be
distributed to Certificateholders amounts distributable on such Payment Date
pursuant to Section 5.2. Upon the satisfaction and discharge of the Indenture,
and receipt of a certificate from the Indenture Trustee stating that all
Noteholders have been paid in full and that the Indenture Trustee is aware of no
claims remaining against the Trust in respect of the Indenture and the Notes,
the Owner Trustee, in the absence of actual knowledge of any other claim against
the Trust, shall be deemed to have made reasonable provision to pay all claims
and obligations (including conditional, contingent or unmatured obligations) for
purposes of Section 3808(e) of the Delaware Statutory Trust Act.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six (6) 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 Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by 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. The Owner Trustee shall
deliver a file-stamped copy of such certificate of cancellation to the
Administrator promptly upon such document becoming available following such
filing.
Section 9.2 Prepayment of Certificates.
(a) The Certificates shall be prepaid in whole, but not in part, at the
direction of the Servicer pursuant to Section 8.1 of the Sale and Servicing
Agreement, on any Payment Date on which the Servicer exercises its option to
purchase the assets of the Trust pursuant to said Section 8.1, and the amount
paid by the Servicer shall be treated as collections of Receivables and applied
to pay the unpaid principal amount of the Securities plus accrued and unpaid
interest (including any overdue interest) thereon. The Servicer shall furnish
the Rating Agencies and the Owner Trustee notice of such prepayment. If the
Certificates are to be prepaid pursuant to this Section 9.2(a), the Servicer
shall furnish notice of such election to the Owner Trustee not later than twenty
(20) days prior to the Payment Date on which such prepayment will be made and
the Trust shall deposit by 10:00 A.M. (New York City time) on such Payment Date
in the Trust Distribution Account the Certificate Prepayment Amount of the
Certificates to be prepaid, whereupon all such Certificates shall be due and
payable on such Payment Date.
(b) Notice of prepayment under Section 9.2(a) shall be given by the Owner
Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted immediately following receipt of notice from the Trust or Servicer
pursuant to Section 9.2(a), but not later than ten (10) days prior to the
Payment Date on which the Certificates will be paid in full, to each
Certificateholder as of the close of business on the Record Date preceding such
Payment Date, at such Certificateholder's address or facsimile number appearing
in the Certificate Register.
All notices of purchase shall state:
(i) the Payment Date on which the purchase of the Receivables will be made
and the Certificates will be paid in full;
(ii) the Certificate Prepayment Amount; and
(iii) the place where such Certificates are to be surrendered for payment of
the Certificate Prepayment Amount (which shall be the office or agency
of the Owner Trustee to be maintained as provided in Section 3.9).
Notice of prepayment of the Certificates shall be given by the Owner Trustee in
the name and at the expense of the Trust. Failure to give notice of prepayment,
or any defect therein, to any Certificateholder shall not impair or affect the
validity of the prepayment of any other Certificate.
(c) Following notice of prepayment as required by Section 9.2(b), the
Certificates shall be paid in full on the Payment Date on which the purchase of
the Receivables is made by the Trust at the Certificate Prepayment Amount and
(unless the Trust shall default in the payment of the Certificate Prepayment
Amount) no interest shall accrue on the Certificate Prepayment Amount for any
period after the date to which accrued interest is calculated for purposes of
calculating the Certificate Prepayment Amount. Following payment in full of the
Certificate Prepayment Amount, this Agreement and the Trust shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.1 Eligibility Requirements for Owner Trustee.
(a) 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 shall be subject to supervision or examination by federal or state
authorities; and (iii) shall have (or shall 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 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 10.1, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section 10.1, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.2.
(b) The Owner Trustee shall at all times be an institution satisfying the
provisions of Section 3807(a) of the Delaware Statutory Trust Act.
Section 10.2 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. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee, 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 has accepted appointment within thirty (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; provided, however, that such right to appoint or to petition for the
appointment of any such successor shall in no event relieve the resigning Owner
Trustee from any obligations otherwise imposed on it under the Basic Documents
until such successor has in fact assumed such appointment.
(b) If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 or resigns pursuant to Section 10.2 of this
Agreement or 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, or if at any time an Insolvency Event with respect to the Owner Trustee
shall have occurred and be continuing, then the Administrator may remove the
Owner Trustee. If the Administrator removes the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the outgoing Owner Trustee
and one copy to the successor Owner Trustee, and shall pay all fees owed to the
outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 10.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3, payment of all fees and expenses owed to
the outgoing Owner Trustee and the filing of a certificate of amendment to the
Certificate of Trust if required by the Delaware Statutory Trust Act. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to the Certificateholders, the Indenture Trustee, the Noteholders and
each of the Rating Agencies.
Section 10.3 Successor Owner Trustee.
(a) Any successor Owner Trustee appointed pursuant to Section 10.2 shall
execute, acknowledge 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 10.2, 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.
(b) No successor Owner Trustee shall accept appointment as provided in this
Section 10.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
(c) Upon acceptance of appointment by a successor Owner Trustee pursuant to this
Section 10.3, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator shall fail to mail such notice within
ten (10) days after acceptance of appointment by the successor Owner Trustee,
the successor Owner Trustee shall cause such notice to be mailed at the expense
of the Administrator.
(d) Any successor Owner Trustee appointed hereunder shall file the amendments to
the Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 10.4 Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, be the successor of the
Owner Trustee hereunder; provided, that such corporation shall be eligible
pursuant to Section 10.1; provided, further, that the Owner Trustee shall (i)
mail notice of such merger or consolidation to the Rating Agencies not less than
fifteen (15) days prior to the effective date thereof and (ii) shall file an
amendment to the Certificate of Trust as required by Section 10.3.
Section 10.5 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust Property 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 Owner
Trustee to act as co-trustee, jointly with the Owner Trustee, or
separate trustee or separate trustees, of all or any part of the Trust,
and to vest in such Person, in such capacity, such title to the Trust
Property, or any part thereof, and, subject to the other provisions of
this Section 10.5, 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 fifteen (15) days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or imposed upon
the Owner Trustee shall be conferred upon and exercised or performed by
the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by reason of
any act or omission of any other trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article X. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall
be filed with the Owner Trustee and a copy thereof given to the
Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
Section 10.6 Compliance with Delaware Statutory Trust ActNotwithstanding
anything herein to the contrary, the Trust shall at all times have at least one
trustee which meets the requirements of Section 3807(a) of the Delaware
Statutory Trust Act.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Supplements and Amendments.
(a) This Agreement may be amended by the Depositor and the Owner Trustee, with
prior written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholders, for the purposes of (i) curing any
ambiguity or correcting or supplementing any provisions in this Agreement
inconsistent with any other provision of this Agreement or for the purpose of
(ii) adding any provisions to or changing in any manner or eliminating any of
the provisions in this Agreement; provided, however, that such action shall not,
as evidenced by an opinion of Counsel satisfactory to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder; provided, further, that an Opinion of Counsel
shall be furnished to the Indenture Trustee and the Owner Trustee to the effect
that such amendment will not (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. In addition, this Agreement may be amended by the
Depositor and the Owner Trustee, with prior notice to the Rating Agencies,
without the consent of any of the Noteholders or the Certificateholders, in
connection with the registration of the Certificates under the Securities Act,
in order to facilitate such registration, including with respect to the
modification of the restrictions applicable to the transfer of the Certificates
and modification of the legend set forth on the form of the Certificates.
(b) This Agreement may also be amended from time to time by the Depositor and
the Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of (i) the Indenture Trustee, to the extent that its rights or
obligations would be affected by such amendment, (ii) the Noteholders of Notes
evidencing not less than a majority of the principal amount of the Notes
Outstanding and (iii) the Certificateholders of Certificates evidencing not less
than a majority of the Aggregate Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (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
Receivables or distributions that are required to be made for the benefit of the
Noteholders or the Certificateholders, or (ii) reduce the aforesaid percentage
of the principal amount of the Notes Outstanding and the Aggregate Certificate
Balance required to consent to any such amendment, without the consent of all
the Noteholders and Certificateholders affected thereby; provided, further, that
an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (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.
(c) 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, the Indenture Trustee and each of the Rating
Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section 11.1 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.
(e) Promptly after the execution of any amendment to the Certificate of Trust,
the Owner Trustee shall cause the filing of such amendment with the Secretary of
State.
(f) Prior to the execution of any amendment to this Agreement or the Certificate
of Trust, the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Trust is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an opinion of
Counsel 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 Trust or the Owner Trustee, as the case
may be, have been satisfied.
Section 11.2 Audits of the Owner Trustee.
The Owner Trustee agrees that, with reasonable prior written
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 and other written
information for a period of two (2) years after the termination of its
obligations under this Agreement.
Section 11.3 No Legal Title to Trust Property in Certificateholders.
The Certificateholders shall not have legal title to any part
of the Trust Property. The Certificateholders shall be entitled to receive
distributions with respect to their beneficial interests therein only in
accordance with Articles V and IX. 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 Trust Property 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 Trust Property.
Section 11.4 Limitation on Rights of Others.
Except for Sections 2.6 and 11.1, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Administrator, the Certificateholders, the Servicer and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.6), whether express or implied, shall 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 herein.
Section 11.5 Notices.
(a) Unless otherwise expressly specified or permitted by the terms hereof, all
notices shall be in writing and shall be deemed given upon receipt by the
intended recipient or three (3) Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee) addressed as
follows (or at such other address or facsimile number as any party may designate
by notice to the other parties):
(i) if to the Owner Trustee, addressed to its Corporate Trust Office at:
Wachovia Bank of Delaware, National Association
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: 000-000-0000
(ii) if to the Depositor, addressed to Ford Credit Auto Receivables Two LLC:
c/o Ford Motor Credit Company
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Ford Credit SPE Management Office
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) if to the Administrator, addressed to Ford Motor Credit Company:
c/o Ford Motor Company
World Headquarters
Xxx Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Securitization Operations Supervisor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Ford Motor Credit Company
Xxx Xxxxxxxx Xxxx
Xxxxx 0000, Xxxxxx 000-000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Any notice required or permitted to be given to a Certificateholder shall be
given by first-class mail, postage prepaid, at the address of such
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 receives such notice.
Section 11.6 Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 11.7 Separate Counterparts.
his 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 11.8 Successors and Assigns.
All covenants and agreements contained herein shall be binding
upon, and inure to the benefit of, the Depositor, the Owner Trustee and its
successors and each Certificateholder and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.
Section 11.9 No Petition.
The Owner Trustee (not in its individual capacity but solely
as Owner Trustee), by entering into this Agreement, and each Certificateholder,
by accepting a Certificate, hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of the Notes, it will
not, until after the Notes have been paid in full, institute against, or join
any other Person in instituting against the Depositor or the Trust, 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 Certificates, the Notes, this
Agreement or any of the other Basic Documents.
Section 11.10 No Recourse.
Each Certificateholder, by accepting a Certificate,
acknowledges that such Certificateholder's Certificates represent beneficial
interests in the Trust only and do not represent interests in or obligations of
the Depositor, the Servicer, the Administrator, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Certificates or the other Basic Documents.
Section 11.11 Headings.
The headings of the various Articles and Sections herein are
for convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
Section 11.12 Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 11.13 Sale and Servicing Agreement Obligations.
Notwithstanding any other provision of this Agreement, the
Owner Trustee agrees that it will comply with its obligations under Sections
3.1, 4.1 and 4.2 of the Sale and Servicing Agreement.
Section 11.14 Confidential Information.
(a) The Owner Trustee agrees to hold and treat all Confidential Information
(defined in Section 11.14(b)) provided to it in connection with the Issuer's
offering of the Notes in confidence and in accordance with this Section 11.14,
and will implement and maintain safeguards to further assure the confidentiality
of such Confidential Information. Such Confidential Information will not,
without instruction pursuant to this Agreement or the prior written consent of
the Servicer or the Administrator, be disclosed or used by the Owner Trustee or
its directors, officers, employees, attorneys or agents (collectively, the
"Information Recipients") other than in connection with the transactions
contemplated by the Basic Documents and the issuance of the Notes. Disclosure
that is not in violation of the Right to Financial Privacy Act of 1978, the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "G-L-B Act") or other applicable law by the
Owner Trustee of any Confidential Information (A) in connection with the
performance of the Owner Trustee's duties hereunder or (B) at the request of the
Owner Trustee's independent certified public accountants or governmental
regulatory authorities in connection with an examination of the Owner Trustee by
any such authority will not constitute a breach of its obligations under this
Section 11.14, and will not require the prior written consent of the Servicer or
the Administrator.
(b) As used in this Agreement, "Confidential Information" means non-public
personal information (as defined in the G-L-B Act and its enabling regulations
issued by the Federal Trade Commission) regarding Obligors on the Receivables
that is identified as such by the Servicer or the Administrator. Confidential
Information will not include information that (i) is or becomes generally
available to the public other than as a result of disclosure by the Owner
Trustee or any of its Information Recipients, (ii) was available to the Owner
Trustee on a non-confidential basis from a Person or entity other than the
Servicer or the Administrator prior to its disclosure to the Owner Trustee,
(iii) is requested to be disclosed by a governmental authority or related
governmental, administrative, or regulatory or self-regulatory agencies having
or claiming authority to regulate or oversee any aspect of the Owner Trustee's
business or that of its Affiliates or is otherwise required by law or by legal
or regulatory process to be disclosed, (iv) becomes available to the Owner
Trustee on a non-confidential basis from a Person other than the Servicer or the
Administrator who, to the knowledge of the Owner Trustee, is not otherwise bound
by a confidentiality agreement with the Servicer and is not otherwise prohibited
from transmitting the information to the Owner Trustee or (v) the Servicer or
the Administrator provides written permission to the Owner Trustee to release.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
FORD CREDIT AUTO RECEIVABLES
TWO LLC,
as Depositor
By: /s/ Xxxxx X Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
EXHIBIT A
CLASS D CERTIFICATE
NUMBER $59,519,000
R-1 CUSIP NO. 34527R LB 7
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF
ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (I) (A)
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN
THE MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST
AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT B TO THE TRUST AGREEMENT,
WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE OWNER TRUSTEE AND DEPOSITOR,
(2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL
PURCHASER AND THE CERTIFICATE REGISTRAR OF AN OPINION OF COUNSEL ACCEPTABLE TO
THE OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND
OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND
THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT C TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST, THE INITIAL
PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE
OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND (B) IN THE CASE OF A TRANSFER PURSUANT TO CLAUSES (A)(1),
(2) OR (3), THE RECEIPT BY THE OWNER TRUSTEE AND THE DEPOSITOR OF THE STATE TAX
OPINION REQUIRED BY SECTION 3.3(a) OF THE TRUST AGREEMENT, OR (II) TO THE
DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST
AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO OWNER TRUST 2005-B
CLASS D 6.78% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of retail installment sale contracts, secured by
new and used automobiles and light duty trucks, conveyed to Ford Credit Auto
Receivables Two LLC by Ford Motor Credit Company and conveyed by Ford Credit
Auto Receivables Two LLC to the Trust. The property of the Trust has been
pledged to the Indenture Trustee pursuant to the Indenture to secure the payment
of the Notes issued thereunder.
(This Certificate does not represent an interest in or obligation of Ford Motor
Credit Company, Ford Credit Auto Receivables Two LLC or any of their respective
Affiliates, except to the extent described below.)
THIS CERTIFIES THAT FORD CREDIT AUTO RECEIVABLES TWO LLC is
the registered owner of FIFTY-NINE MILLION FIVE HUNDRED NINETEEN THOUSAND
DOLLARS nonassessable, fully-paid, beneficial interest in Class D Certificates
of Ford Credit Auto Owner Trust 2005-B (the "Trust") formed by Ford Credit Auto
Receivables Two LLC, a Delaware limited liability company (the "Depositor"). The
Class D Certificates have an aggregate Initial Certificate Balance of
$59,519,000 and bear interest at a rate of 6.78% per annum (the "Class D Rate").
The Trust is governed by the Amended and Restated Trust
Agreement, dated as of April 1, 2005 (as from time to time amended, supplemented
or otherwise modified and in effect, the "Trust Agreement"), between the
Depositor and Wachovia Bank of Delaware, National Association, not in its
individual capacity but solely as owner trustee (the "Owner Trustee"), a summary
of certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates
designated as "Class D 6.78% Asset Backed Certificates" (herein called the
"Class D Certificates" or the "Certificates") are issued under and are subject
to the terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Certificateholder of this Certificate by virtue of the acceptance
hereof assents and by which such Certificateholder is bound. Also issued under
the Indenture, dated as of April 1, 2005 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Trust and The Bank of New York, as indenture trustee (in such capacity, the
"Indenture Trustee"), are the Notes designated as "Class A-1 3.15% Asset Backed
Notes", "Class A-2 3.78% Asset Backed Notes", "Class A-3 4.17% Asset Backed
Notes", "Class A-4 4.38% Asset Backed Notes", "Class B 4.64% Asset Backed Notes"
and "Class C 4.83% Asset Backed Notes" (collectively, the "Notes"). The property
of the Trust includes (i) the Receivables; (ii) monies due or received
thereunder on or after the Cutoff Date and monies due and received prior to the
Cutoff Date that are posted to the Obligor's account on or after the Cutoff
Date; (iii) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Issuer in the Financed
Vehicles; (iv) rights to receive proceeds with respect to the Receivables from
claims on any physical damage, credit life, credit disability, or other
insurance policies covering Financed Vehicles or Obligors; (v) Dealer Recourse;
(vi) all of the Seller's rights to the Receivable Files; (vii) the Trust
Accounts, the Trust Distribution Account and all amounts, securities,
investments, investment property and other property deposited in or credited to
any of the foregoing, all security entitlements relating to the foregoing and
all proceeds thereof; (viii) all of the Seller's rights under the Sale and
Servicing Agreement; (ix) all of the Seller's rights under the Purchase
Agreement; (x) payments and proceeds with respect to the Receivables held by the
Servicer; (xi) all property securing a Receivable; (xii) rebates of premiums and
other amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; and (xiii) all present and future
claims, demands, causes of action and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing. The rights of the Trust in the foregoing property of the Trust have
been pledged to the Indenture Trustee to secure the payment of the Notes.
Under the Trust Agreement, there will be distributed on the
fifteenth day of each month, or if such fifteenth day is not a Business Day, the
next Business Day (each, a "Payment Date"), commencing in May 2005, to the
Person in whose name this Certificate is registered at the close of business on
the last day of the preceding month (the "Record Date") such Certificateholder's
percentage interest in the amount to be distributed to Class D
Certificateholders on such Payment Date; provided, however, that principal will
be distributed to the Class D Certificateholders on each Payment Date on (to the
extent of funds remaining after all classes of the Notes) and after the date on
which all classes of the Notes have been paid in full. Notwithstanding the
foregoing, following the occurrence and during the continuation of an event of
default under the Indenture which has resulted in an acceleration of the Notes,
no distributions of principal or interest will be made on the Certificates until
all principal and interest on the Notes has been paid in full.
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 Sale and
Servicing Agreement, the Indenture and the Trust Agreement.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
either as a disregarded entity for so long as the Depositor owns 100% of the
Certificates and otherwise as a partnership in which the Certificateholders
(including the Depositor) will be treated as partners in that partnership. The
Depositor and the other Certificateholders by acceptance of a Certificate agree
to treat, and to take no action inconsistent with the treatment of, the
Certificates for such tax purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that, prior to the date that is one year and one day after
the payment in full of the Notes, it will not institute against, or join any
other Person in instituting against the Depositor or the Trust, 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 Securities, the Trust Agreement or any of
the other Basic Documents.
Distributions on this Certificate will be made as provided in
the Trust Agreement by the Owner Trustee or the Certificate 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 maintained for the purpose by the Owner Trustee 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 set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an Authorized Officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Certificateholder 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 and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
In WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust
and not in its individual capacity, has caused this Class D Certificate to be
duly executed.
FORD CREDIT AUTO OWNER
TRUST 2005-B
By: WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Owner Trustee
By: ---------------------------
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Trust Agreement.
Dated: April 14, 2005
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Owner Trustee
By: ---------------------------
Authorized Officer
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Administrator, the Owner Trustee
or any Affiliates of any of them and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated herein, 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 Sale and Servicing Agreement. A registration statement, which
includes a form of the Trust Agreement as an exhibit thereto, has been filed
with the Securities and Exchange Commission with respect to the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C
Notes.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Owner Trustee with the
consent of the Noteholders and the Certificateholders evidencing not less than a
majority of the principal amount of the Notes Outstanding and the Aggregate
Certificate Balance, respectively. Any such consent by the Certificateholder of
this Certificate shall be conclusive and binding on such Certificateholder and
on all future Certificateholders of this Certificate and of any Certificate
issued upon the registration of Transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of any of the Noteholders or the
Certificateholders.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the Transfer of the Certificates are registrable
in the Certificate Register upon surrender of this Certificate for registration
of Transfer at the offices or agencies maintained by Wachovia Bank of Delaware,
National Association in its capacity as Certificate Registrar, or by any
successor Certificate Registrar, in Wilmington, Delaware, accompanied by a
written instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same aggregate interest in the Trust
will be issued to the designated transferee.
The Certificates are issuable as registered Certificates
without coupons in denominations of at least $20,000 and in integral multiples
of $1,000 in excess thereof. Certificates are exchangeable for new Certificates
of like Class and authorized denominations evidencing the same aggregate
denomination, as requested by the Certificateholder surrendering the same. No
service charge will be made for any such registration of Transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Class D Certificates may be acquired only by an entity
that is either: (a) not, and each account (if any) for which it is purchasing
the Class D Certificates 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")) whether or not subject to Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code")
whether or not subject to Section 4975 of the Code, (iii) a governmental plan,
as defined in Section 3(32) of ERISA, (iv) 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. ss. 2510.3-101 or otherwise
under ERISA) or (v) a person investing "plan assets" of any such plan (including
without limitation, for purposes of this clause (v), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended); or (b) an insurance company acting on behalf
of a general account and (i) on the date of purchase less than 25% (or such
lesser percentage as may be determined by the Depositor) of the assets of such
general account (as reasonably determined by it) constitute "plan assets" for
purposes of Title I of ERISA and Section 4975 of the Code, (ii) the purchase and
holding of such Class D Certificates are eligible for exemptive relief under
Section (I) of Prohibited Transaction Class Exemption 95-60, and (iii) the
purchaser agrees that if, after the purchaser's initial acquisition of the Class
D Certificates, at any time during any calendar quarter 25% (or such lesser
percentage as may be determined by the Depositor) or more of the assets of such
general account (as reasonably determined by it no less frequently than each
calendar quarter) constitute "plan assets" for purposes of Title I of ERISA or
Section 4975 of the Code and no exemption or exception from the prohibited
transaction rules applies to the continued holding of the Class D Certificates
under Section 401(c) of ERISA and the final regulations thereunder or under an
exemption or regulation issued by the United States Department of Labor under
ERISA, it will dispose of all Class D Certificates then held in its general
account by the end of the next following calendar quarter.
In addition, the Certificates may not be acquired by or on
behalf of a Person other than a person who is (A) a citizen or resident of the
United States, (B) a corporation or partnership organized in or under the laws
of the United States or any political subdivision thereof, (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, (D) a trust if a U.S. court is able to exercise
primary supervision over the administration of such trust and one or more
persons described in clause (A), (B), (C) or (E) of this paragraph has the
authority to control all substantial decisions of the trust or (E) a person not
described in clauses (A) through (D) of this paragraph whose ownership of the
Certificates is effectively connected with such persons conduct of a trade or
business within the United States (within the meaning of the Code) and who
provides the Trust and the Depositor with an IRS Form W-8ECI (and such other
certifications, representations, or opinions of counsel as may be requested by
the Trust or the Depositor).
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate (i) upon the maturity or
other liquidation of the last remaining Receivable and the disposition of any
amounts received upon such maturity or liquidation or (ii) upon the payment to
the Noteholders and the Certificateholders of all amounts required to be paid to
them pursuant to the Indenture, the Trust Agreement and the Sale and Servicing
Agreement, and upon such termination any remaining assets of the Trust shall be
distributed to the Depositor. The Servicer of the Receivables may at its option
purchase the assets of the Trust at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
--------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
__________________________________*/
Signature Guaranteed:
__________________________________*/
----------------------------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
EXHIBIT B
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Date
Ford Credit Auto Owner Trust 2005-B,
as Issuer
Wachovia Bank of Delaware,
National Association,
as Owner Trustee and
Certificate Registrar
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxxxxx Xxxxx
Re: Ford Credit Auto Owner Trust 2005-B
Class D 6.78% Asset Backed Certificates
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 6.78%
Asset Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust
2005-B (the "Issuer"), a trust formed by Ford Credit Auto Receivables Two LLC
(the "Depositor"), we confirm that:
1. The undersigned agrees to be bound by, and not to resell, transfer,
assign, participate, pledge or otherwise dispose of (any such act, a
"Transfer") the Certificates except in compliance with, the
restrictions and conditions set forth in the legend on the face of the
Certificates and under the Securities Act of 1933, as amended (the
"Securities Act").
2. We understand that no subsequent Transfer of the Certificates is
permitted unless we cause our proposed transferee to provide to the
Issuer, the Certificate Registrar and the Initial Purchaser a letter
substantially in the form of this letter or Exhibit C to the Trust
Agreement, as applicable, or such other written statement as the
Depositor shall prescribe.
3. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the
Certificates for our own account or for a single account (which is a
QIB) as to which we exercise sole investment discretion.
4. We are either:
(a) not, and each account (if any) for which we are purchasing
the Certificates 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")) whether or not
subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended
(the "Code") whether or not subject to Section 4975 of the
Code, (iii) a governmental plan, as defined in Section 3(32)
of ERISA, (iv) 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) or (v) a person
investing "plan assets" of any such plan (including without
limitation, for purposes of this clause (v), an insurance
company general account, but excluding an entity registered
under the Investment Company Act of 1940, as amended), or
(b) an insurance company acting on behalf of a general account
and (i) on the date hereof less than 25% of the assets of such
general account (as reasonably determined by us) constitute
"plan assets" for purposes of Title I of ERISA and Section
4975 of the Code, (ii) the purchase and holding of such
Certificates are eligible for exemptive relief under Section
(I) of Prohibited Transaction Class Exemption 95-60, and (iii)
the undersigned agrees that if, after the undersigned's
initial acquisition of the Certificates, at any time during
any calendar quarter 25% or more of the assets of such general
account (as reasonably determined by us no less frequently
than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and
no exemption or exception from the prohibited transaction
rules applies to the continued holding of the Certificates
under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the
DOL under ERISA, we will dispose of all Certificates then held
in our general account by the end of the next following
calendar quarter.
5. We are a person who is (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (C) an estate the
income of which is includible in gross income for United States tax
purposes, regardless of its source, (D) a trust if a U.S. court is able
to exercise primary supervision over the administration of such trust
and one or more persons described in clause (A), (B), (C) or (E) of
this paragraph 5 has the authority to control all substantial decisions
of the trust or (E) a person not described in clauses (A) through (D)
of this paragraph 5 whose ownership of the Certificates is effectively
connected with such person's conduct of a trade or business within the
United States (within the meaning of the Code) and who provides the
Trust and the Depositor with an IRS Form W-8ECI (and such other
certifications, representations, or opinions of counsel as may be
requested by the Trust or the Depositor).
6. We understand that any purported Transfer of any Certificate (or any
interest therein) in contravention of the restrictions and conditions
above will be null and void (each, a "Void Transfer"), and the
purported transferee in a Void Transfer will not be recognized by the
Issuer or any other person as a Certificateholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:---------------------------
Name:
Title:
Securities To Be Purchased:
$[ ] principal amount of Certificates
EXHIBIT C
FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR
Date
Ford Credit Auto Owner Trust 2005-B
as Issuer
Wachovia Bank of Delaware,
National Association,
as Owner Trustee and
Certificate Registrar
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxxxxx Xxxxx
Re: Ford Credit Auto Owner Trust 2005-B
Class D 6.78% Asset Backed Certificates
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 6.78%
Asset Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust
2005-B (the "Issuer"), a trust formed by Ford Credit Auto Receivables Two LLC
(the "Depositor"), we confirm that:
(1) The undersigned agrees to be bound by, and not to resell,
transfer, assign, participate, pledge or otherwise dispose of
(any such act, a "Transfer") the Certificates except in
compliance with, the restrictions and conditions set forth in the
legend on the face of the Class D Certificates and under the
Securities Act of 1933, as amended (the "Securities Act").
(2) We understand that no subsequent Transfer of the Certificates is
permitted unless we cause our proposed transferee to provide to
the Issuer, the Certificate Registrar and the Initial Purchaser a
letter substantially in the form of this letter or Exhibit B to
the Trust Agreement, as applicable, or such other written
statement as the Depositor shall prescribe.
(3) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and we are
acquiring the Certificates for our own account.
(4) We are either:
(a) not, and each account (if any) for which we are purchasing
the Certificates 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")) whether or not
subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended
(the "Code") whether or not subject to Section 4975 of the
Code, (iii) a governmental plan, as defined in Section 3(32)
of ERISA, (iv) 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) or (v) a person
investing "plan assets" of any such plan (including without
limitation, for purposes of this clause (v), an insurance
company general account, but excluding an entity registered
under the Investment Company Act of 1940, as amended), or
(b) an insurance company acting on behalf of a general account
and (i) on the date hereof less than 25% of the assets of such
general account (as reasonably determined by us) constitute
"plan assets" for purposes of Title I of ERISA and Section
4975 of the Code, (ii) the purchase and holding of such
Certificates are eligible for exemptive relief under Section
(I) of Prohibited Transaction Class Exemption 95-60, and (iii)
the undersigned agrees that if, after the undersigned's
initial acquisition of the Certificates, at any time during
any calendar quarter 25% or more of the assets of such general
account (as reasonably determined by us no less frequently
than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and
no exemption or exception from the prohibited transaction
rules applies to the continued holding of the Certificates
under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the
DOL under ERISA, we will dispose of all Certificates then held
in our general account by the end of the next following
calendar quarter.
(5) We are a person who is (A) a citizen or resident of the United
States, (B) a corporation or partnership organized in or under
the laws of the United States or any political subdivision
thereof, (c) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source,
(D) a trust if a U.S. court is able to exercise primary
supervision over the administration of such trust and one or more
persons described in clause (A), (B), (C) or (E) of this
paragraph 5 has the authority to control all substantial
decisions of the trust or (E) a person not described in clauses
(A) through (D) of this paragraph 5 whose ownership of the
Certificates is effectively connected with such person's conduct
of a trade or business within the United States (within the
meaning of the Code) and who provides the Trust and the Depositor
with an IRS Form W-8ECI (and such other certifications,
representations, or opinions of counsel as may be requested by
the Trust or the Depositor).
(6) We understand that any purported Transfer of any Certificate (or
any interest therein) in contravention of the restrictions and
conditions above will be null and void (each, a "Void Transfer"),
and the purported transferee in a Void Transfer will not be
recognized by the Issuer or any other person as a
Certificateholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:---------------------------
Name:
Title:
Securities To Be Purchased:
$[ ] principal amount of Certificates
EXHIBIT D
FORM OF RULE 144A TRANSFEROR CERTIFICATE
Date
Wachovia Bank of Delaware,
National Association,
as Owner Trustee and
Certificate Registrar
000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxxxxx Xxxxx
Re: Ford Credit Auto Owner Trust 2005-B
Class D 6.78% Asset Backed Certificates
--------------------------------------------
Ladies and Gentlemen:
This is to notify you as to the transfer of $* in denomination of Class
D 6.78% Asset Backed Certificates (the "Certificates") of Ford Credit Auto Owner
Trust 2005-B (the "Issuer").
The undersigned is the holder of the Certificates and with this notice
hereby deposits with the Owner Trustee $* in denomination of Certificates and
requests that Certificates of the same class in the same aggregate denomination
be issued, executed and authenticated and registered to the purchaser on
___________, 200[ ], as specified in the Trust Agreement dated as of April 1,
2005 relating to the Certificates, as follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the Certificates in a transaction effected in accordance
with the exemption from the registration requirements of the Act provided by
Rule 144A, (iii) if the purchaser has purchased the Certificates for an account
for which it is acting as fiduciary or agent, such account is a qualified
institutional buyer and (iv) the purchaser is acquiring Certificates for its own
account or for an institutional account for which it is acting as fiduciary or
agent.
Very truly yours,
NAME OF HOLDER OF
CERTIFICATES
By:---------------------------
Name:
Title:
* authorized denomination
EXHIBIT E
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
FORD CREDIT AUTO OWNER TRUST 2005-B
This Certificate of Trust of Ford Credit Auto Owner Trust
2005-B (the "Trust") is being duly executed and filed by Wachovia Bank of
Delaware, National Association, as owner trustee (the "Owner Trustee"), to form
a statutory trust under the Delaware Statutory Trust Act (12 Delaware Code, ss.
3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is Ford
Credit Auto Owner Trust 2005-B.
2. Owner Trustee. The name and business address of the sole
trustee of the Trust in the State of Delaware is Wachovia Bank of Delaware,
National Association, One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the date first above
written in accordance with Section 3811(a)(1) of the Act.
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner
Trustee under an Amended and Restated Trust
Agreement, dated as of April 1, 2005
By:----------------------------------------------
Name:
Title:
APPENDIX A
Definitions and Usage
See Tab 16
