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 January 1, 2003
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND USAGE...............................................................................1
ARTICLE II
ORGANIZATION OF THE TRUST...........................................................................2
SECTION 2.1 Name.........................................................................2
SECTION 2.2 Office.......................................................................2
SECTION 2.3 Purposes and Powers..........................................................2
SECTION 2.4 Appointment of Owner Trustee.................................................3
SECTION 2.5 Capital Contribution of Owner Trust Estate...................................3
SECTION 2.6 Declaration of Trust.........................................................3
SECTION 2.7 Liability of the Depositor...................................................4
SECTION 2.8 Title to Trust Property......................................................5
SECTION 2.9 Situs of Trust...............................................................5
SECTION 2.10 Representations and Warranties of the Depositor.............................5
SECTION 2.11 Federal Income Tax Matters..................................................7
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS........................................................8
SECTION 3.1 Initial Beneficial Ownership.................................................8
SECTION 3.2 Capital Accounts.............................................................9
SECTION 3.3 The Certificates.............................................................9
SECTION 3.4 Authentication of Certificates..............................................10
SECTION 3.5 Registration of Certificates; Transfer and Exchange of
Certificates..........................................................10
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Certificates...........................16
SECTION 3.7 Persons Deemed Owners of Certificates.......................................16
SECTION 3.8 Access to List of Certificateholders' Names and Addresses...................16
SECTION 3.9 Maintenance of Office or Agency.............................................17
SECTION 3.10 Appointment of Certificate Paying Agent....................................17
SECTION 3.11 Certain Rights of Depositor................................................18
ARTICLE IV
ACTIONS BY OWNER TRUSTEE...........................................................................18
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters...............................................................18
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters................19
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.....................20
SECTION 4.4 Restrictions on Certificateholders' Power...................................20
SECTION 4.5 Majority Control............................................................20
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.........................................................20
SECTION 5.1 Establishment of Certificate Distribution Account...........................20
SECTION 5.2 Application of Trust Funds..................................................21
SECTION 5.3 Method of Payment...........................................................22
SECTION 5.4 No Segregation of Monies; No Interest.......................................23
SECTION 5.5 Accounting and Reports to Noteholders, Certificateholders,
Internal Revenue Service and Others...................................23
SECTION 5.6 Signature on Returns; Tax Matters Partner...................................23
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE..............................................................24
SECTION 6.1 General Authority...........................................................24
SECTION 6.2 General Duties..............................................................24
SECTION 6.3 Action upon Instruction.....................................................25
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions..........................................................26
SECTION 6.5 No Action Except Under Specified Documents or
Instructions..........................................................26
SECTION 6.6 Restrictions................................................................26
ARTICLE VII
REGARDING THE OWNER TRUSTEE........................................................................27
SECTION 7.1 Acceptance of Trusts and Duties.............................................27
SECTION 7.2 Furnishing of Documents.....................................................28
SECTION 7.3 Representations and Warranties..............................................28
SECTION 7.4 Reliance; Advice of Counsel.................................................29
SECTION 7.5 Not Acting in Individual Capacity...........................................29
SECTION 7.6 Owner Trustee Not Liable for Certificates or Receivables....................30
SECTION 7.7 The Bank May Own Securities.................................................30
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE........................................................31
SECTION 8.1 Owner Trustee's Fees and Expenses...........................................31
SECTION 8.2 Indemnification.............................................................31
SECTION 8.3 Payments to the Owner Trustee...............................................32
ARTICLE IX
TERMINATION........................................................................................32
SECTION 9.1 Termination of Trust Agreement..............................................32
SECTION 9.2 Prepayment of Certificates..................................................34
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.............................................35
SECTION 10.1 Eligibility Requirements for Owner Trustee.................................35
SECTION 10.2 Resignation or Removal of Owner Trustee....................................36
SECTION 10.3 Successor Owner Trustee....................................................36
SECTION 10.4 Merger or Consolidation of Owner Trustee...................................37
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee. ............................37
SECTION 10.6 Compliance with Delaware Statutory Trust Act...............................39
ARTICLE XI
MISCELLANEOUS......................................................................................39
SECTION 11.1 Supplements and Amendments.................................................39
SECTION 11.2 No Legal Title to Owner Trust Estate in Certificateholders.................41
SECTION 11.3 Limitation on Rights of Others.............................................42
SECTION 11.4 Notices....................................................................42
SECTION 11.5 Severability...............................................................42
SECTION 11.6 Separate Counterparts......................................................43
SECTION 11.7 Successors and Assigns.....................................................43
SECTION 11.8 No Petition................................................................43
SECTION 11.9 No Recourse................................................................43
SECTION 11.10 Headings..................................................................43
SECTION 11.11 Governing Law.............................................................43
SECTION 11.12 Sale and Servicing Agreement Obligations..................................43
EXHIBIT A
FORM OF CLASS D CERTIFICATE.......................................................................A-1
EXHIBIT B
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER............................................................B-1
EXHIBIT C
FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR........................................................C-1
EXHIBIT D
FORM OF RULE 144A TRANSFEROR CERTIFICATE..........................................................D-1
EXHIBIT E
FORM OF CERTIFICATE OF TRUST OF FORD CREDIT AUTO OWNER TRUST 2003-A..............................E-1
APPENDIX A
Definitions and Usage.............................................................................A-1
AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 1, 2003 (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 One Xxxxxx
Square, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration, Xxx Xxxxxx for the purpose of establishing the
Ford Credit Auto Owner Trust 2003-A.
WHEREAS, the parties hereto intend to amend and restate that
certain interim Trust Agreement, dated as of September 1, 2002, 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 2003-A", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and 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 enter into and perform its obligations under any
interest rate protection agreement or agreements between the Trust and
one or more counterparties, including any confirmations evidencing the
transactions thereunder, each of which is an interest rate swap, an
interest rate cap, an obligation to enter into any of the foregoing, or
any combination of any of the foregoing;
(iii) to acquire the Receivables and other Trust Property
pursuant to the Sale and Servicing Agreement from the Depositor in
exchange for the Securities;
(iv) to pay interest on and principal of the Notes and
distributions on the Certificates;
(v) to Grant the Owner Trust Estate (other than each
Certificate Distribution Account and the proceeds thereof) to the
Indenture Trustee pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the 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 Owner Trust Estate. As of September 1,
2002, 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 Owner Trust Estate and shall be deposited in the
Certificate 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 Owner Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that (i) the Trust constitute a statutory trust under the
Delaware Statutory Trust Act and that this Agreement constitute the governing
instrument of such statutory trust and (ii) for income and franchise tax
purposes, the Trust shall be treated as a partnership, with the assets of the
partnership being the Receivables, the Trust's rights under the Interest Rate
Swap Agreements and other assets held by the Trust, the partners of the
partnership being the Certificateholders and the Depositor and the Notes
constituting indebtedness of the partnership. 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 a
partnership for such 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 and any necessary amendment thereto has been filed
with the Secretary of State, a form is attached hereto as Exhibit E.
SECTION 2.7 Liability of the Depositor. (a) Notwithstanding Section 3803 of
the Delaware Statutory Trust Act, the Depositor in its capacity as the holder of
the interests described in Section 3.11 shall be liable directly to, and will
indemnify each injured party for, all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent that the assets of the
Trust that would remain if all of the Notes were paid in full would be
insufficient to pay any such losses, claims, damages, liabilities or expenses,
or to the extent that such losses, claims, damages, liabilities and expenses in
fact are not paid out of the Owner Trust Estate) that the Depositor would be
liable for if the Trust were a partnership under the Limited Partnership Act in
which the Depositor were a general partner; provided, however, that the
Depositor shall not be liable to or indemnify Noteholders or Note Owners for any
losses incurred by Noteholders or Note Owners in their capacity as holders of or
beneficial owners of interests in limited recourse debt secured by the Owner
Trust Estate or be liable to or indemnify Certificateholders for any losses
incurred by the Certificateholders if such losses would nevertheless have been
incurred if the Certificates were limited recourse debt secured by the Owner
Trust Estate. In addition, any third-party creditors of the Trust, or the
arrangement between the Depositor and the Trust (other than in connection with
the obligations described in the preceding sentence for which the Depositor
shall not be liable), shall be deemed third-party beneficiaries of this
paragraph.
(b) No Certificateholder other than the Depositor to the
extent set forth in paragraph (a) of this Section 2.7, shall have any personal
liability for any liability or obligation of the Trust.
(c) The Depositor's obligations under this Section 2.7
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 Owner Trustee, by entering into or accepting this agreement,
acknowledges and agrees that it 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, the Owner Trustee
either (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 the Owner Trustee 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, 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. The Indenture Trustee and
Owner Trustee each further acknowledges and agrees that no adequate remedy at
law exists for a breach of this Section 2.7 and the terms of this Section 2.7
may be enforced by an action for specific performance. The provisions of this
Section 2.7 shall be for the third party benefit of those entitled to rely
thereon and shall survive the termination of this Agreement.
SECTION 2.8 Title to Trust Property. Legal title to the entirety of the
Owner Trust Estate shall be vested at all times in the Trust as a separate legal
entity, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.9 Situs of Trust. The Trust shall be 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 business 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 Federal Income Tax Matters. It is the intent of the Depositor
and Ford Credit that, for purposes of federal income, state and local income and
franchise tax and any other income taxes, the Trust will be treated as a
disregarded entity that is 100% owned by the Depositor, and that the Depositor
in turn will be a disregarded entity that is 100% owned 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. The
Depositor and Ford Credit hereby agree and the Noteholders by acceptance of a
Notes 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 Interest 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
4.6 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 Owner Trust Estate.
SECTION 3.2 Capital Accounts. This Section 3.2 will apply only if either
(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 $59,989,000 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, that is subject to Title I of ERISA, (2) a plan
described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code, (3) a governmental plan, as defined in Section 3(32)
of ERISA, subject to any federal, State or local law which is, to a
material extent, similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, (4) an entity whose underlying assets include
plan assets by reason of a plans 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 Sections (I) and (III) 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
8-ECI (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 or one or more Certificateholders of Certificates evidencing
not less than 25% of the Aggregate Certificate Balance 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 each
Certificate 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 each Certificate
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
4.6 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 or Swap
Counterparty is required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder or Swap
Counterparty 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 or (b) appoint a successor Servicer pursuant to Article
VIII of the Sale and Servicing Agreement. The Owner Trustee may not, except upon
the occurrence of an event specified in Section 9(c) of the Administration
Agreement 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 Administrator under the Administration Agreement pursuant to Section
9 thereof or (b) 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 Certificate Distribution Account. Pursuant to
Section 4.1(c) of the Sale and Servicing Agreement, there has been established
and there shall be maintained two segregated trust accounts, each 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
"Certificate Interest Distribution Account" and the "Certificate Principal
Distribution Account," respectively (each of the Certificate Interest
Distribution Account and the Certificate Principal Distribution Account, a
"Certificate Distribution Account"). Except as expressly provided in Section
3.10, each Certificate Distribution Account shall be under the sole dominion and
control of the Owner Trustee. All monies deposited from time to time in each
Certificate Distribution Account pursuant to the Sale and Servicing Agreement
shall be applied as provided in the Basic Documents. In the event that either
Certificate 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 such Certificate 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). Each Certificate 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 Servicer's Certificate
delivered on the relevant Determination Date pursuant to Section 3.9 of the Sale
and Servicing Agreement:
(i) withdraw the amounts deposited into the Certificate
Interest Distribution Account pursuant to Section 4.6(c) 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; and
(2) second, to the Depositor, any funds remaining on
deposit in the Certificate Interest Distribution Account.
(ii) withdraw the amounts deposited into the Certificate
Principal Distribution Account pursuant to Section 4.6(c) and (d) 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 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
(2) second, to the Depositor, any funds remaining on
deposit in the Certificate Principal 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 a calendar year
basis 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 so as to maintain the Trust's characterization as
a partnership for 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 $577,000,000, (ii) Class A-2a Notes in the
aggregate principal amount of $640,000,000, (iii) Class A-2b Notes in the
aggregate principal amount of $640,000,000, (iv) Class A-3a Notes in the
aggregate principal amount of $285,000,000, (v) Class A-3b Notes in the
aggregate principal amount of $285,000,000, (vi) Class A-4a Notes in the
aggregate principal amount of $211,452,000, (vii) Class A-4b Notes in the
aggregate principal amount of $211,000,000, (viii) Class B-1 Notes in the
aggregate principal amount of $52,733,000 , (ix) Class B-2 Notes in the
aggregate principal amount of $37,250,000 and (x) Class C Notes in the aggregate
principal amount of $59,989,000. 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 Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the 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 Owner Trust Estate that results from actions by,
or claims against, the Owner Trustee that are not related to the ownership or
the administration of the Owner Trust Estate.
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 Owner Trust Estate 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 federal income or Applicable Tax
State income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for 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.
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
Owner Trust Estate 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 Owner Trust Estate 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 Owner Trust Estate 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 Owner
Trust Estate 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 Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Owner Trustee, and the Owner Trustee shall be entitled to and reimbursed by the
Depositor 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. Such amounts
shall be treated for tax purposes as having been contributed to the Trust by the
Depositor and the tax deduction for such amounts shall be allocated to the
Depositor.
SECTION 8.2 Indemnification. (a) The Depositor 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 Owner Trust Estate, the administration
of the Owner Trust Estate 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, 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 Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate 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 Owner Trust Estate 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 business 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.
(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 in accordance
with the provisions of Section 3810(c) of the Delaware Statutory Trust Act.
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 9.1 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 9.1, 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 Certificate Distribution Account the
Certificate Prepayment Amount of the Certificates to be prepayed, 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; and
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 Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the 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 Owner
Trust Estate, 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 Act. Notwithstanding
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 or the Swap Counterparties (if the related Interest Rate Swap
Agreement is then in effect), to cure any ambiguity, to correct or supplement
any provisions in this Agreement inconsistent with any other provision of this
Agreement or for the purpose of 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 and
shall not, as evidenced by an Opinion of Counsel satisfactory to the Owner
Trustee and the Indenture Trustee, adversely affect the rights or obligations of
the Swap Counterparties under the Interest Rate Swap Agreements or impair the
ability of the Trust to fully perform any of its obligations under the Interest
Rate Swap Agreements; and provided further that an Opinion of Counsel shall be
furnished to the Indenture Trustee and the Owner Trustee to the effect that such
amendment (A) will not materially adversely affect the federal or any Applicable
Tax State income or franchise taxation of any outstanding Note or Certificate,
or any Noteholder or Certificateholder, (B) will not cause the Trust to be
taxable as a corporation for federal or any Applicable Tax State income or
franchise tax purposes and (C) will 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. 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, the Swap Counterparties 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, (iii) the Certificateholders of Certificates evidencing not
less than a majority of the Aggregate Certificate Balance and (iv) the Swap
Counterparties to the extent such amendment adversely affects the rights or
obligations of the Swap Counterparties or modifies or impairs the ability of the
Trust to fully perform any of its obligations under the Interest Rate Swap
Agreements, 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; and provided further, that an Opinion of
Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the
effect that such amendment (A) will not materially adversely affect the federal
or any Applicable Tax State income or franchise taxation of any outstanding Note
or Certificate, or any Noteholder or Certificateholder, (B) will not cause the
Trust to be taxable as a corporation for federal or any Applicable Tax State
income or franchise tax purposes and (C) will 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. Any Swap Counterparty's consent will be deemed to have been
given if such Swap Counterparty does not object in writing within ten Business
Days of receipt of a written request for such consent.
(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,
the Swap Counterparties (to the extent the related Interest Rate Swap Agreement
is in effect) and each of the Rating Agencies.
(d) It shall not be necessary for the consent of
Certificateholders, the Noteholders, the Swap Counterparties 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 No Legal Title to Owner Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their 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
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 11.3 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 Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4 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), if
to the Owner Trustee, addressed to its Corporate Trust Office; if to the
Depositor, addressed to Ford Credit Auto Receivables Two LLC at the address of
its principal executive office first above written; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
(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 11.5 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 11.6 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Depositor, the
Owner Trustee and 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 11.8 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
it will not, until after the Notes have been paid in full, institute against the
Depositor or the Trust, or join in any institution against the Depositor or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the other Basic Documents.
SECTION 11.9 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 11.10 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 11.11 Governing Law. This Agreement 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.
SECTION 11.12 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.
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:
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION,
as Owner Trustee
By:
Name:
Title:
EXHIBIT A
CLASS D CERTIFICATE
NUMBER
$59,989,000
R-1
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 2003-A
CLASS D 5.00% 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 and the payments to the Swap Counterparties
pursuant to the Interest Rate Swap Agreements.
(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 NINE HUNDRED EIGHTY NINE THOUSAND
DOLLARS nonassessable, fully-paid, beneficial interest in Class D Certificates
of Ford Credit Auto Owner Trust 2003-A (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
$59,989,000 and bear interest at a rate of 5.00% per annum (the "Class D Rate").
The Trust was created pursuant to an Amended and Restated
Trust Agreement, dated as of January 1, 2003 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"), among
the Depositor, 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 5.00% 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 January 1, 2003 (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 1.36313% Asset
Backed Notes", "Class A-2a 1.62% Asset Backed Notes", "Class A-2b Floating Rate
Asset Backed Notes", "Class A-3a 2.20% Asset Backed Notes", "Class A-3b Floating
Rate Asset Backed Notes", "Class A-4a 2.70% Asset Backed Notes", "Class A-4b
Floating Rate Asset Backed Notes", "Class B-1 3.16% Asset Backed Notes", "Class
B-2 Floating Rate Asset Backed Notes" and "Class C 4.29% Asset Backed Notes"
(collectively, the "Notes"). The property of the Trust includes (i) pool of
retail installment sale contracts, secured by new and used automobiles and light
duty trucks and certain rights and obligations thereunder (the "Receivables");
(ii) with respect to Actuarial Receivables, all monies due thereunder on or
after the Cutoff Date and, with respect to Simple Interest Receivables, all
monies due or received thereunder on or after the Cutoff Date; (iii) monies
received prior to the Cutoff Date on the Receivables which were due on or after
the Cutoff Date and were not used to reduce the principal balance of the
Receivables; (iv) the security interests in the Financed Vehicles; (v) rights to
proceeds from claims on certain physical damage, credit life, credit disability
or other insurance policies, if any, covering Financed Vehicles or Obligors;
(vi) the Seller's rights to certain documents and instruments relating to the
Receivables; (vii) such amounts as from time to time may be held in one or more
accounts maintained pursuant to the Sale and Servicing Agreement, dated as of
January 1, 2003 (as from time to time amended, supplemented or otherwise
modified and in effect, the "Sale and Servicing Agreement"), by and among the
Trust, the Depositor, as seller (in such capacity, the "Seller"), and Ford Motor
Credit Company, as servicer (the "Servicer"), including the Reserve Account;
(viii) the Seller's rights under the Sale and Servicing Agreement; (ix) the
Seller's rights under the Purchase Agreement; (x) rebates of premiums and other
amounts relating to insurance policies and other items financed under the
Receivables in effect as of the Cutoff Date; (xi) security interests in any
other property securing each Receivable; (xii) the Issuer's rights under the
Interest Rate Swap Agreements; and (xiii) any and all proceeds 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 and payments to the
Swap Counterparties pursuant to the Interest Rate Swap Agreements.
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 February 2003, 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 and the Swap Counterparties 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 such Certificateholder will not, until after the Notes
have been paid in full, institute against the Depositor or the Trust, or join in
any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the 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 2003-A
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: January 22, 2003
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-2a
Notes, the Class A-2b Notes, the Class A-3a Notes, the Class A-3b Notes, the
Class A-4a Notes, the Class A-4b Notes, the Class B-1 Notes, the Class B-2 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, and the consent of the Swap Counterparties.
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, the Swap Counterparties 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")) that is 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") that is
subject to Section 4975 of the Code, (iii) a governmental plan, as defined in
Section 3(32) of ERISA, subject to any federal, State or local law which is, to
a material extent, similar to the provisions of Section 406 of ERISA or Section
4975 of the Code, (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 Sections (I) and (III) 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) 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 meeting the conditions
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) above 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 Owner Trustee and the Depositor with an IRS Form
4224 (and such other certifications, representations, or opinions of counsel as
may be requested by the Owner Trustee 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, the Swap Counterparties and the Certificateholders of all
amounts required to be paid to them pursuant to the Indenture, the Trust
Agreement, the Sale and Servicing Agreement and the Interest Rate Swap
Agreements, 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 2003-A,
as Issuer
Wachovia Bank of Delaware,
National Association,
as Owner Trustee and
Certificate Registrar
One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxx Xxxxxx
Re: Ford Credit Auto Owner Trust 2003-A
Class D 5.00% Asset Backed Certificates
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 5.00% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 2003-A
(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")) that is 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")
that is subject to Section 4975 of the Code, (iii) a
governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a
material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (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 Sections
(I) and (III) 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 (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is includible in gross income for United States tax purposes,
regardless of its source, (iv) 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 clauses (i) to (iii) above or clause (v) below has the
authority to control all substantial decisions of the trust or (v) a person not
described in clauses (i) to (iv) above 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 Issuer
and the Depositor with a Form 4224 (and such other certifications,
representations, or opinions of counsel as may be requested by the Issuer 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 2003-A
as Issuer
Wachovia Bank of Delaware,
National Association,
as Owner Trustee and
Certificate Registrar
One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxx Xxxxxx
Re: Ford Credit Auto Owner Trust 2003-A
Class D 5.00% Asset Backed Certificates
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 5.00% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 2003-A
(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")) that is 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") that is subject to Section 4975 of the Code,
(iii) a governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section
4975 of the Code, (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 Sections (I) and (III) 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 (i) a citizen or resident of the
United States, (ii) a corporation or partnership organized in or under
the laws of the United States or any political subdivision thereof,
(iii) an estate the income of which is includible in gross income for
United States tax purposes, regardless of its source, (iv) 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
clauses (i) to (iii) above or clause (v) below has the authority to
control all substantial decisions of the trust or (v) a person not
described in clauses (i) to (iv) above 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 Issuer and the Depositor with a Form 4224
(and such other certifications, representations, or opinions of counsel
as may be requested by the Issuer 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
One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration, Xxx Xxxxxx
Re: Ford Credit Auto Owner Trust 2003-A
Class D 5.00% Asset Backed Certificates
Ladies and Gentlemen:
This is to notify you as to the transfer of $* in denomination of Class
D 5.00% Asset Backed Certificates (the "Certificates") of Ford Credit Auto Owner
Trust 2003-A (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 January 1,
2003 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 2003-A
This Certificate of Trust of Ford Credit Auto Owner Trust
2003-A (the "Trust"), dated as of September 1, 2002, 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 2003-A
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 January 1, 2003
By:
Name:
Title:
APPENDIX A
Definitions and Usage
