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EXHIBIT 4.2
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AMENDED AND RESTATED
TRUST AGREEMENT
among
FORD CREDIT AUTO RECEIVABLES TWO L.P.
as Depositor,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and
THE BANK OF NEW YORK,
as Owner Trustee
Dated as of January 1, 1999
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 1, 1999 (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), among FORD CREDIT AUTO RECEIVABLES TWO L.P., a Delaware
limited partnership, as Depositor, having its principal executive xxxxxx xx Xxx
Xxxxxxxx Xxxx, Xxxx xxxx, Xxxxxxxx 00000; THE BANK OF NEW YORK (DELAWARE), a
Delaware banking corporation not in its individual capacity but solely as
Delaware trustee under this Agreement (the "Delaware Trustee"), having its
principal corporate trust office at Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000; and THE BANK OF NEW YORK, a New York banking corporation (the
"Bank"), not in its individual capacity but solely as trustee under this
Agreement (in such capacity, the "Owner Trustee"), having its principal
corporate trust office at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000 for the purpose of establishing the Ford Credit Auto Owner Trust. Each of
the Delaware Trustee and the Owner Trustee are referred to individually as a
"Co-Trustee" and collectively as the "Co-Trustees".
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of January 1, 1999, among the Depositor, the Delaware
Trustee and the Owner Trustee, 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, the Delaware Trustee 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 1999-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. Offices. The Delaware office of the Trust shall be in
care of the Delaware Trustee at the Corporate Trust Office or at such other
address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Certificateholders and the Depositor. The New York 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 New York 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:
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(i) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes and the
Certificates upon the written order of the Depositor;
(ii) with the proceeds of the sale of the Notes and the Certificates,
to fund the Reserve Account, to pay the organizational, start-up and
transactional expenses of the Trust, and to pay the balance to the
Depositor pursuant to the Sale and Servicing Agreement;
(iii) to pay interest on and principal of the Notes and distributions
on the Certificates;
(iv) to Grant the Owner Trust Estate (other than the Certificate
Distribution Account and the proceeds thereof) to the Indenture Trustee
pursuant to the Indenture;
(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suit able or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the Noteholders
and the Certificateholders.
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. Appointment of Delaware Trustee. The Delaware Trustee is
appointed to serve as the trustee of the Trust in the State of Delaware for the
sole and limited purpose of satisfying the requirement of Section 3807 of the
Delaware Business Trust Statute that the Trust have at least one trustee with a
principal place of business in Delaware. It is understood and agreed by the
parties hereto and the Certificateholders that the Delaware Trustee shall have
none of the duties or liabilities of the Owner Trustee. The duties of the
Delaware Trustee shall be limited to (a) accepting legal process served on the
Trust in the State of Delaware and (b) the execution of any certificates
required to be filed with the Secretary of State of the State of Delaware which
the Delaware Trustee is required to execute pursuant to Section 3811 of the
Business Trust Statute, and the Delaware Trustee shall provide prompt notice to
the Owner Trustee of its performance of any such acts. The parties hereto and
the Certificateholders understand and agree that the Delaware Trustee shall not
be entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and liabilities, of the Owner Trustee. The Delaware Trustee shall not
be liable for the acts or omissions of the Owner Trustee, the Depositor or the
Trust. To the extent that, at law or in equity, the Delaware Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Certificateholders, it is hereby understood and agreed by
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the other parties hereto and the Certificateholders that such duties and
liabilities are replaced by the duties and liabilities of the Delaware Trustee
expressly set forth in this Trust Agreement. The Delaware Trustee shall owe no
fiduciary or other duties to the Trust or to the Depositor except as expressly
provided for herein.
SECTION 2.6. Capital Contribution of Owner Trust Estate. As of January
1,1999, the Depositor sold, assigned, transferred, conveyed and set over to
the Owner Trustee the sum of $1. The Owner Trustee hereby acknowledges receipt
intrust 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 or the Delaware Trustee, promptly reimburse the Owner Trustee or the
Delaware Trustee for any such expenses paid by the Owner Trustee or the Delaware
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 Notes and the
Certificates.
SECTION 2.7. 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 business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business 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 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 Business Trust Statute with respect to accomplishing the purposes of the
Trust. Together with the Delaware Trustee, the Owner Trustee has filed the
Certificate of Trust with the Secretary of State.
SECTION 2.8. Liability of the Depositor. (a) Notwithstanding Section
3803 of the Business Trust Statute, 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
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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.
SECTION 2.9. 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 2.10. Situs of Trust. The Trust shall be administered in the
State of New York. All bank accounts maintained by the Owner Trustee on behalf
of the Trust shall be located in the State of Delaware or the State of New York.
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, the Delaware Trustee or the Owner Trustee from having employees within or
without the State of Delaware. Payments will be received by the Trust only in
Delaware or New York, and payments will be made by the Trust only from Delaware
or New York. The principal office of the Trust shall be in care of the Delaware
Trustee in the State of Delaware. The Trust shall also have an office in care of
the Owner Trustee in the State of New York.
SECTION 2.11. 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
partnership 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 partnership 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, receiver ship, liquidation and other similar
laws and to general equitable principles.
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(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
Limited Partnership or the Limited Partnership 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, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, 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 Notes and the Certificates.
(g) The representations and warranties of the Depositor in Section 3.1
of the Purchase Agreement are true and correct.
SECTION 2.12. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent of
the Depositor and the Servicer that, for purposes of federal in come, state and
local income and franchise tax and any other income taxes, the Trust will be
treated as a partnership and the Certificateholders and the Depositor will be
treated as partners in that partnership. The Depositor hereby agrees and the
Certificateholders by acceptance of a Certificate agree to such treatment and
each agrees to take no action inconsistent with such treatment. For purposes of
federal income, State and local income and franchise tax and any other income
taxes each month:
(a) amounts paid to any Certificateholder pursuant to Section
5.2(a)(i) 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 among the Certificate- holders of each Class of Certificates as
of the Record Date occurring within such month, in proportion to their
ownership of the Aggregate Certificate Balance on such date, in an amount
up to the sum of (i) the Accrued Class C Certificate Interest or Accrued
Class D Certificate Interest, as applicable, for such Class for
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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 Certificate Balance of such class of Certificates over
the initial aggregate issue price of such Class of Certificates and (iii)
any amount expected to be distributed to the Certificateholders of such
Class pursuant to Sections 4.6(c) and (d) 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 Certificateholders of such Class (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 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, in its capacity as
"general partner," is reasonably expected to bear the economic burden of such
net losses, and any remaining net losses shall be allocated among the
Certificateholders as of the Record Date occurring within such month in
proportion to their ownership of the Aggregate Certificate Balance 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
or the Certificateholders 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. (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 and
Certificates 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
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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. The Class C Certificates and the Class
D Certificates shall each be issued in one or more registered, definitive,
physical certificates, in the form set forth in Exhibit A and Exhibit B,
respectively, in denominations of at least $20,000 and in integral multiples of
$1,000 in excess thereof. No Certificate may be sold, transferred, as signed,
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").
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.
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 transferee's acceptance of a Certificate duly registered in
such transferee's 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 C Certificates, in an
aggregate principal balance equal to the Initial Certificate Balance of such
Class C Certificates, and 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
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treasurer of the General Partner, 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 or Exhibit B, as applicable,
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. The Bank 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) No Transfer of any Class C Certificate shall be permitted,
recognized or recorded unless the prospective transferee of such Class C
Certificate shall provide a letter in the form of Exhibit C hereof to the Trust,
the Owner Trustee and the Certificate Registrar, in which such prospective
transferee shall represent the following:
(i) It is not, and each account (if any) for which it is purchasing
the Class C Certificates is not, (A) an employee benefit plan, as defined
in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan
described in Section 4975(e)(1) of the Code that is subject to Section 4975
of the Code, (C) 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, (D) 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 (E)
a person in vesting "plan assets" of any such plan (including without
limitation, for purposes of this clause (E), an insurance company general
account, but excluding any entity registered under the Investment Company
Act of 1940, as amended).
(ii) It is, and each account (if any) for which it is purchasing the
Class C Certificates 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 meeting the conditions of clause (A), (B), (C) or (E)
of this paragraph (ii) 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 Class C 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
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certifications, representations, or opinions of counsel as may be requested
by the Owner Trustee or the Depositor).
(iii) It understands that any purported Transfer of any Class C
Certificate (or any interest therein) to any Person who does not meet
the conditions of paragraphs (i) and (ii) above shall be a Void Transfer,
and the purported transferee in a Void Transfer shall not be recognized by
the Trust or any other Person as a Certificateholder for any purpose.
(iv) It agrees that if it determines to Transfer any of the Class C
Certificates it will cause its proposed transferee to provide to the Trust,
the Owner Trustee and the Certificate Registrar a letter substantially in
the form of Exhibit C hereof or such other written statement as the
Depositor shall prescribe.
(c) Each Class D Certificate shall bear a legend to the following
effect unless determined other wise 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 AND WILL NOT BE 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 OTHER WISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, AND ONLY (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 144A (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 F 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 D TO THE TRUST AGREEMENT,
WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE DEPOSITOR, (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAIL ABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE
CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST AND THE INITIAL
PURCHASER 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 E 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 TRUST AND THE INITIAL
PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH
THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) 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."
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As a condition to the registration of any Transfer of a Class D
Certificate, the prospective transferee of such a Class D 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 Class D
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 D or Exhibit E 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 not, and each account (if any) for which it is
purchasing the Class D Certificates is not, (A) an employee benefit plan,
as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA,
(B) a plan described in Section 4975(e)(1) of the Code that is subject to
Section 4975 of the Code, (C) 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, (D) 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 (E) a person investing "plan assets" of any such
plan (including without limitation, for purposes of this clause (E),
subject to any exceptions approved by the Depositor, an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended).
(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, regard less 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) though (D) of this
paragraph (iii) whose ownership of the Class D Certificates is effectively
connected with such person's conduct of a trade or business within the
United States (within the meaning of the Code) and who provides the Trust
and the Depositor with an IRS Form 4224 (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 Class D
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.
(d) By acceptance of any Class D Certificate, the Certificateholder
thereof specifically agrees with and
12
represents to the Depositor, the Trust and the Certificate Registrar, that no
Transfer of such Class D Certificate shall be made unless the registration re-
quirements 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 F and (y) the transferee
executes and delivers to the Trust and the Certificate Registrar an
investment letter substantially in the form attached as Exhibit D;
(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 E.
(e) The Depositor shall make available to the prospective transferor
and transferee of a Class D 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
Class D Certificates, and any amendments or supplements thereto;
(ii) each statement delivered to Certificateholders pursuant to
Section 5.2(b) on each Distribution 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 Class D Certificate under the Securities
Act or any other securities law.
(f) Upon surrender for registration of Transfer
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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 duly authorized 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 cancel led 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 govern mental 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 Distribution 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
14
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. If three
or more Certificateholders or one or more Certificateholders of Certificates
evidencing not less than 25% of the Aggregate Certificate Balance apply in
writing to the Owner Trustee, and such application states that the applicants
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then 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,
regard less of the source from which such information was derived.
SECTION 3.9. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the State of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of Transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee initially
designates The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 12 East, New York,
New York 10286, Attention: Asset-Backed Finance Unit as its principal corpo-
rate 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
15
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 Distribution 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 Re serve 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 may not
Transfer any such rights unless it shall have received an Opinion of Counsel
that such Transfer shall not cause the Trust to be classified as an association
(or publicly traded partnership) taxable as a corporation.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificate holders 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) Certificate- holders 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
with held 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 afore mentioned claims or lawsuits for collection by the Servicer of
the Receivables);
16
(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 Business
Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interests of the
Certificateholders;
(e) the amendment, 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 Certificateholders holding not less
than a majority of the Aggregate Certificate Balance, (a) remove the Servicer
under the Sale and Servicing Agreement pursuant to Article VIII thereof, (b)
appoint a successor Servicer pursuant to Article VIII of the Sale and Servicing
Agreement, (c) remove the Administrator under the Administration Agreement
pursuant to Section 9 thereof or (d) appoint a successor Administrator pursuant
to Section 9 of the Administration Agreement.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust unless the Notes have been paid in full and
each Certificateholder (other than the Depositor) approves of such commencement
in advance and delivers to the Owner Trustee a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the other Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Certificateholders of Certificates evidencing not less than a
majority of the Aggregate Certificate Balance. Except as expressly provided
herein, any written notice of
17
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 "The Bank of New York, 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, the 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 Distribution
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 Distribution Date and make or
cause to be made distributions and payments in the following order of
priority:
(1) first, to the Certificateholders of Class C
Certificates, an amount equal to the Accrued Class C Certificate
Interest, provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class C
Certificate Interest, the amounts available shall be applied to
the payment of such interest on the Class C Certificates on a pro
rata basis;
(2) second, to the Certificateholders of Class D Certifi-
xxxxx, 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
18
payment of such interest on the Class D Certificates on a pro
rata basis; and
(3) third, 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
Distribution 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 C
Certificates in reduction of the Certificate Balance of the Class
C Certificates, until the Certificate Balance of the Class C
Certificates has been reduced to zero; provided that if there are
not sufficient funds available to reduce the Certificate Balance
of the Class C Certificates to zero, the amounts available shall
be applied to the reduction of the Certificate Balance of the
Class C Certificates on a pro rata basis;
(2) second, to the Certificateholders of the Class D
Certificates in reduction of the Certificate Balance of the Class
D Certificates, until the Certificate Balance of the Class D
Certificates has been reduced to zero; provided that if there
are not sufficient funds available to reduce the Certificate Bal-
ance of the Class D Certificates to zero, the amounts available
shall be applied to the reduction of the Certificate Balance of
the Class D Certificates on pro rata basis; and
(3) third, to the Depositor, any funds remaining on deposit
in the Certificate Principal Distribution Account.
(b) On each Distribution Date, the Owner Trustee shall, or shall cause
the Certificate Paying Agent to, send to each Certificateholder as of the re-
lated 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
Distribution 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 with holding tax is payable with
respect to a distribution (such as a distribution to a
19
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 Distribution 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 Distribution 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 Certificate- holder appearing in the
Certificate Register. Notwithstanding the foregoing, the final distribution in
respect of any Certificate (whether on the applicable Final Scheduled
Distribution Date or otherwise) will be payable only upon presentation and
surrender of such Certificate at the office or agency maintained for that
purpose by the 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. 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 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. 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) The
Depositor, as general partner for income tax purposes, shall prepare (or cause
to be prepared) and sign, on behalf of the Trust, the tax returns of the Trust.
20
(b) The Depositor 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 $250,000,000, (ii) Class A-2 Notes in the
aggregate principal amount of $296,000,000, (iii) Class A-3 Notes in the
aggregate principal amount of $495,000,000, (iv) Class A-4 Notes in the
aggregate principal amount of $313,767,000, (v) Class A-5 Notes in the aggregate
principal amount of $250,000,000, (vi) Class A-6 Notes in the aggregate
principle amount of $250,000,000 and (vii) Class B Notes in the aggregate
principal amount of $68,695,000. 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 super vise 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
21
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
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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 AND THE DELAWARE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. Each of the Owner
Trustee and the Delaware Trustee accept the trusts hereby created and each
agrees to perform its duties hereunder with respect to such trusts but only
upon the terms of this Agreement. Each Co-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 each
Co-Trustee is a party. Each Co-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
expressly made by either Co-Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Co-Trustees shall not be liable for any error of judgment made
by a responsible officer of either of the Co-Trustees;
(b) the Co-Trustees shall not be liable with respect to any action
taken or omitted to be taken by them in accordance with the instructions of
any Certificateholder, the Indenture Trustee, the Depositor, the
Administrator or the Servicer;
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(c) no provision of this Agreement or any other Basic Document shall
require the Co-Trustees to expend or risk funds or otherwise incur any
financial liability in the performance of any of their rights or powers
hereunder or under any other Basic Document if the Co-Trustees shall have
reason able grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to them;
(d) under no circumstances shall the Co-Trustees 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;
(e) the Co-Trustees 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 Co-Trustees
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;
(f) the Co-Trustees 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 other wise and the Co-Trustees 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
(g) the Co-Trustees shall be under no obligation to exercise any of
the rights or powers vested in them 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 Co- Trustees security or indemnity
satisfactory to them against the costs, expenses and liabilities that may
be incurred by the Co-Trustees therein or thereby. The right of the
Co-Trustees to perform any discretionary act enumerated in this Agreement
or in any other Basic Document shall not be construed as a duty, and the
Co-Trustees shall not be answerable for other than the willful misconduct,
bad faith or negligence of either of them 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. (a) The Owner Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
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(i) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of New York. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) 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.
(iii) 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.
(b) The Delaware Trustee hereby represents and warrants to the
Depositor, for the benefit of the Certificateholders, that:
(i) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) 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.
(iii) 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 Delaware 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 Co-Trustees 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 Co-Trustees 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 Co-Trustees
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
25
Co-Trustees 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 Co-Trustees (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Co-Trustees 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
Co-Trustees 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 Co-Trustees shall not be liable for anything done, suffered or omitted
in good faith by them 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, The Bank of New York
acts solely as Owner Trustee hereunder and The Bank of New York (Delaware) acts
solely as Delaware Trustee hereunder and not in their individual capacities, and
all Persons having any claim against the Co-Trustees 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 Co-Trustees make no representa-
tions 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. The Owner Trustee, the Delaware Trustee, The Bank of New York
and The Bank of New York (Delaware) shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Owner
Trust Estate or its ability to generate the payments to be distributed to
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 or the Delaware Trustee.
SECTION 7.7. Co-Trustees May Own Certificates and Notes. The Bank of
New York and The Bank of New York (Delaware), in their individual or any other
capacities, may become the owner or pledgee of Certificates or Notes and may
26
deal with the Depositor, the Servicer, the Administrator and the Indenture
Trustee in banking transactions with the same rights as they would have if
either of them were not the Owner Trustee or the Delaware Trustee.
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses. The Co-Trustees shall
receive as compensation for their services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Co-Trustees, and the Co-Trustees shall be entitled to and reimbursed by the
Depositor for their other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Co- Trustees may employ in
connection with the exercise and performance of their 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. The Depositor shall be liable as prime
obligor for, and shall indemnify the Co-Trustees, The Bank of New York and The
Bank of New York (Delaware) and their 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 Co-Trustees, The Bank of New York and The Bank of New York
(Delaware) 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 Co-Trustees 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 Co-Trustees' choice of legal counsel shall be subject to the approval
of the Depositor, which approval shall not be unreasonably withheld.
SECTION 8.3. Payments to Co-Trustees. Any amounts paid to the
Co-Trustees 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, (i) upon
the maturity or
27
other liquidation of the last remaining Receivable and the disposition of any
amounts received upon such maturity or liquidation, (ii) upon 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 or (iii) at the time provided in Section 9.2. Any Insolvency
Event, liquidation, dissolution, death or incapacity with respect to any
Certificateholder, other than the Depositor as described in Section 9.2, shall
not (x) operate to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or 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 Business Trust Statute.
(b) Except as provided in Section 9.1(a), 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
Distribution 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 Distribution Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the 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 Distribution 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 Distribution 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 Business Trust Statute.
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
28
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 Business Trust Statute.
SECTION 9.2. Dissolution upon Insolvency or Dissolution of Depositor
or General Partner. Notwithstanding the provisions of Section 3808 of the
Business Trust Statute, in the event that an Insolvency Event or a dissolution
shall occur with respect to the Depositor or the General Partner, the
Receivables shall be sold and this Agreement and the Trust shall be terminated
in accordance with Section 9.1 ninety (90) days after the date of such
Insolvency Event or the event giving rise to such dissolution, unless, before
the end of such 90-day period, the Owner Trustee shall have received written
instructions from (a) the Certificateholders (other than the Depositor) of each
Class of Certificates evidencing not less than a majority of the Certificate
Balance of such Class and a majority of the right to receive distributions in
respect of interest on the Certificate Balance of such Class (including in each
case the Certificate Balance of Certificates owned by the Servicer and any of
its Affiliates other than the Depositor), (b) the Noteholders (other than the
Depositor) of each Class of Notes evidencing not less than a majority of the
principal amount of the outstanding Notes of such Class and a majority of the
right to receive interest on the out standing Notes of such Class (including in
each case the Notes owned by the Servicer and any of its Affiliates other than
the Depositor), with each of the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes and the
Class B Notes treated as a separate Class of Notes for this purpose, and (c)
holders of other interests, if any (the existence of which interests the Admin-
istrator will have advised the Owner Trustee in writing), in the Reserve Account
(other than the Depositor) having interests with a value not less than a
majority of the value of all interests in the Reserve Account (other than any
such interests held by the Depositor), to the effect that each such party
disapproves of the liquidation of the Receivables and termination of the Trust
and in connection therewith the Indenture Trustee (i) appoints an entity
acceptable to Ford Credit to acquire an interest in the Trust and to act as
substitute "general partner" of the Trust for federal income tax purposes and
(ii) obtains an Opinion of Counsel that the Trust will not thereafter be
classified as an association (or publicly traded partnership) taxable as a
corporation for federal income tax and Applicable Tax State purposes. Promptly
after the occurrence of any Insolvency Event or dissolution with respect to the
Depositor or the General Partner, (A) the Depositor shall give the Indenture
Trustee and the Owner Trustee written notice of such Insolvency Event, (B) the
Owner Trustee shall, upon the receipt of such written notice from the Depositor,
give prompt written notice to the Certificateholders, holders of interests, if
any, in the Reserve Account and the Indenture Trustee, of the occurrence of such
event, (C) the Indenture Trustee shall, upon receipt of written notice of such
Insolvency Event or dissolution from the Owner Trustee or the Depositor, give
prompt written notice to the Noteholders of the occurrence of such event,
29
and (D) the Owner Trustee shall, upon receipt of written instructions from the
applicable percentages of Noteholders, Certificateholders and holders of
interests, if any, in the Reserve Account disapproving of liquidation and
termination, give prompt written notice thereof to the Indenture Trustee;
provided, however, that any failure to give a notice required by this sentence
shall not prevent or delay, in any manner, a termination of the Trust pursuant
to the first sentence of this
Section 9.2. Upon a termination pursuant to this Section 9.2, the Owner Trustee
shall direct the Indenture Trustee promptly to sell the assets of the Trust
(other than the Trust Accounts and the Certificate Distribution Account) in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds of such a sale of the assets of the Trust shall be treated as
collections of Receivables under the Sale and Servicing Agreement and
deposited in the Collection Account and the Notes and Certifi xxxxx shall be
paid in accordance with Section 4.6 of the Sale and Servicing Agreement.
SECTION 9.3. 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 Distribution 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 Notes and the Aggregate Certificate Balance 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 9.3(a), the Servicer
shall furnish notice of such election to the Owner Trustee not later than twenty
(20) days prior to the Prepayment Date and the Trust shall deposit by 10:00 A.M.
(New York City time) on the Prepayment Date in the Certificate Distribution
Account the Prepayment Price of the Certificates to be redeemed, whereupon all
such Certificates shall be due and payable on the Prepayment Date.
(b) Notice of prepayment under Section 9.3(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 9.3(a), but not later than ten (10) days prior to
the applicable Prepayment Date, to each Certificateholder as of the close of
business on the Record Date preceding the applicable Prepayment Date, at such
Certificateholder's address or facsimile number appearing in the Certificate
Register.
All notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price; and
(iii) the place where such Certificates are to be
surrendered for payment of the Prepayment Price (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 9.3(b), the
Certificates shall on the Prepayment Date be paid by the Trust at the
Prepayment Price and (unless the Trust shall default in the payment of the
Prepayment Price) no interest shall accrue on the Prepayment Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Prepayment Price. Following payment in full of the Prepayment
Price, this Agreement and the Trust shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee and Delaware
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
30
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 Delaware Trustee shall at all times (i) be a corporation
satisfying the provisions of Section 3807(a) of the Business Trust Statute.
SECTION 10.2. Resignation or Removal of Owner Trustee or the Delaware
Trustee. The Owner Trustee or the Delaware 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 or Delaware Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee or Delaware Trustee and one copy to the successor Owner
Trustee or Delaware Trustee. If no successor Owner Trustee or Delaware Trustee
shall have been so appointed and have accepted appointment within thirty (30)
days after the giving of such notice of resignation, the resigning Owner Trustee
or Delaware Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee or Delaware 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 or Delaware
Trustee from any obligations otherwise imposed on it under the Basic Documents
until such successor has in fact assumed such appointment.
If at any time the Owner Trustee or Delaware Trustee shall cease to be
eligible in accordance with the provisions of Section 10.1 or a Co-Trustee
resigns pursuant to Section 10.2 of this Agreement and the ineligible or
non-resigning Co-Trustee or either Co-Trustees shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee or Delaware Trustee shall be legally unable to act, or if at any time an
Insolvency Event with respect to the Owner Trustee or Delaware Trustee shall
have occurred and be continuing, then the Administrator may remove the Co-
Trustee that is insolvent or legally unable to act or may remove both
Co-Trustees. If the Administrator shall remove one or both of the Co-Trustees
under the authority of the immediately preceding sentence, the Administrator
shall promptly appoint a successor Co-Trustee or Co- Trustees, as applicable, by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Co-Trustee or Co-Trustees, as applicable, so removed
and one copy to the successor Co-Trustee or Co- Trustees, as applicable, and
shall pay all fees owed to the outgoing Co-Trustee or Co-Trustees, as
applicable.
Any resignation or removal of a Co-Trustee and appointment of a
successor Co-Trustee or Co-Trustees pursuant to any of the provisions of this
Section 10.2 shall not become effective until acceptance of appointment by the
successor Co-Trustee or Co-Trustees pursuant to Section 10.3, payment of all
fees and expenses owed to the outgoing Co-Trustee or Co-Trustees and the filing
of a certificate of amendment to the Certificate of Trust if required by the
Business Trust Statute. The Administrator shall provide notice of such
resignation or removal of the Co-Trustee or Co-Trustees to the
Certificateholders, the Indenture Trustee, the Noteholders, any remaining
Co-Trustee and each
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of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee or Delaware Trustee. Any
successor Owner Trustee or Delaware Trustee appointed pursuant to Section 10.2
shall execute, acknowledge and deliver to the Administrator and to its
predecessor Owner Trustee or Delaware Trustee an instrument accepting such
appointment under this Agreement. Upon the resignation or removal of the
predecessor Owner Trustee or Delaware Trustee becoming effective pursuant to
Section 10.2, such successor Owner Trustee or Delaware 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 or Delaware Trustee. The
predecessor Owner Trustee or Delaware Trustee shall, upon payment of its fees
and expenses, deliver to the successor Owner Trustee or Delaware Trustee all
documents and statements and monies held by it under this Agreement, and the
Administrator and the predecessor Owner Trustee or Delaware 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 or Delaware Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee or Delaware Trustee shall accept
appointment as provided in this Section 10.3 unless, at the time of such
acceptance, such successor Owner Trustee or Delaware Trustee shall be eligible
pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee or
Delaware Trustee pursuant to this Section 10.3, the Administrator shall mail
notice of the successor of such Owner Trustee or Delaware Trustee to all
Certificateholders, the Indenture Trustee, the Noteholders, any remaining
Co-Trustee 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 or Delaware Trustee, the successor Owner Trustee or Delaware
Trustee shall cause such notice to be mailed at the expense of the
Administrator.
Any successor Delaware Trustee appointed here under 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 Delaware Trustee in
the State of Delaware.
SECTION 10.4. Merger or Consolidation of Owner Trustee or Delaware
Trustee. Any corporation into which the Owner Trustee or Delaware 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 or Delaware Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Owner Trustee
or Delaware 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 or Delaware
Trustee here under; provided that such corporation shall be eligible pursuant to
Section 10.1; and provided further, that (i) the Owner Trustee or Delaware
Trustee shall 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) the
Delaware Trustee shall file an amendment to the Certificate of Trust as required
by Section 10.3.
32
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
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.
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.
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.
33
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 Business Trust Statute. 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 Business Trust
Statute.
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, 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
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 and (B) will not cause the Trust to be taxable as a
corporation for federal or any Applicable Tax State income or franchise tax
purposes.
(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 Noteholders of Notes evidencing not less
than a majority of the principal amount of the Notes Outstanding and (ii) the
Certificateholders of Certificates evidencing not less than a majority of the
Aggregate Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of, or
change the allocation or priority of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Noteholders
or the Certificateholders, or (ii) reduce the aforesaid percentage of the
principal amount of the Notes Outstanding and the Aggregate Certificate Balance
required to consent to any such amendment, without the consent of all the
Noteholders and Certificateholders affected thereby; 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
34
income or franchise taxation of any outstanding Note or Certificate, or any
Noteholder or Certificateholder and (B) will not cause the Trust to be taxable
as a corporation for federal or any Applicable Tax State income or franchise
tax purposes.
(c) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or the Indenture Trustee pursuant to this Section 11.1 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this
Agreement or any amendment to any other agreement to which the Trust is a party,
the Owner Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel to the effect that such amendment is authorized or permitted
by the Basic Documents and that all conditions precedent in the Basic Documents
for the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
SECTION 11.2. 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 account-
ing 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 2.7
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 2.7), 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
35
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 the Corporate Trust Office; if
to the Depositor, addressed to Ford Credit Auto Receivables Two L.P. 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 as signs, 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, the General Partner or the Trust, or join in any institution against
the Depositor, the General Partner 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 General Partner, 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,
36
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.
37
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 L.P., as Depositor
By: FORD CREDIT AUTO RECEIVABLES
TWO, INC.,
as General Partner
By: /s/ X.X. Xxxxxx
--------------------------------
Name: X.X. Xxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK(DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxx X. Laser
--------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
THE BANK OF NEW YORK,
as Owner Trustee
By: /s/ Xxxxxx X. Laser
--------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
38
EXHIBIT A
[FORM OF CLASS C CERTIFICATE]
NUMBER $39,254,000
R-______ CUSIP NO. 00000XXX0
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 1999-A
CLASS C 6.52% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of motor vehicle retail installment sale
contracts, secured by security interests in the motor vehicles financed thereby,
conveyed to Ford Credit Auto Receivables Two L.P. by Ford Motor Credit Company
and conveyed by Ford Credit Auto Receivables Two L.P. to the Trust. The property
of the Trust has been pledged to the Indenture Trustee pursuant to the
Indenture to secure the payment of the Notes issued thereunder.
(This Certificate does not represent an interest in or obligation of Ford Motor
Credit Company, Ford Credit Auto Receivables Two L.P. or any of their respective
Affiliates, except to the extent described below.)
THIS CERTIFIES THAT ________________is the registered owner of
________DOLLARS nonassessable, fully-paid, beneficial interest in Class C
Certificates of Ford Credit Auto Owner Trust 1999-A (the "Trust") formed by Ford
Credit Auto Receivables Two L.P., a Delaware limited partnership (the
"Depositor"). The Class C Certificates have an aggregate Initial Certificate
Balance of $39,254,000 and bear interest at a rate of 6.52% per annum (the
"Class C Rate").
39
The Trust was created pursuant to an Amended and Restated Trust
Agreement, dated as of January 1, 1999 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"), among
the Depositor, The Bank of New York (Delaware), not in its individual capacity
but solely as Delaware trustee (the "Delaware Trustee") and The Bank of New
York, 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 C 6.52% Asset Backed Certificates" (herein called the "Class C
Certificates") which, together with the Certificates designated as "Class D
8.00% Asset Backed Certificates" (the "Class D Certificates" and, together with
the Class C Certificates, 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, 1999 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Trust and The Chase Manhattan Bank, as indenture trustee (in such capacity, the
"Indenture Trustee"), are the Notes designated as "Class A-1 5.010% Asset Backed
Notes", "Class A-2 5.089% Asset Backed Notes", "Class A-3 5.31% Asset Backed
Notes", "Class A-4 5.31% Asset Backed Notes", "Class A-5 5.38% Asset Backed
Notes", "Class A-6 5.41% Asset Backed Notes" and "Class B 5.79% Asset Backed
Notes" (collectively, the "Notes"). The property of the Trust includes (i) a
pool of motor vehicle retail installment sale contracts for new and used
automobiles and light trucks and certain rights and obligations thereunder (the
"Receivables"); (ii) with respect to Precomputed 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) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Trust in the Financed
Vehicles; (iv) rights to proceeds from claims on certain physical damage, credit
life, credit disability or other insurance policies, if any, covering Financed
Vehicles or Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to
the Receivable Files; (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, 1999 (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) payments and proceeds with
respect to the Receivables held by the Servicer; (xi) all property (including
the right to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable repurchased by the Servicer or purchased by the Seller); (xii)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cutoff Date; and
(xiii) 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.
40
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 "Distribution Date"), commencing February 16, 1999, 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 C
Certificateholders on such Distribution Date; provided, however, that principal
will be distributed to the Class C Certificateholders on each Distribution Date
on (to the extent of funds remaining after all classes of the Notes have been
paid in full) 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 or following certain events of
insolvency or a dissolution with respect to the Depositor or the General
Partner, no distributions of principal or interest will be made on the
Certificates until all principal and interest on the Notes has been paid in
full.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS
TO RECEIVE DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARe SUBORDINATED TO THE
RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE
INDENTURE AND THE TRUST AGREEMENT.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and 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, the General Partner or the Trust,
or join in any institution against the Depositor, the General Partner 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 Notes, the Certificates, 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 New York, New York.
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.
41
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.
42
In WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Class C Certificate to be duly
executed.
FORD CREDIT AUTO OWNER
TRUST 1999-A
By: THE BANK OF NEW YORK,
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 C Certificates referred to in the within-mentioned
Trust Agreement.
Dated: January 21, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity
but solely as Owner Trustee
By:
-----------------------------------
Authorized Officer
43
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the General Partner, 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 the Trust Agreement as an exhibit thereto, has been filed with the
Securities and Exchange Commission with respect to the Notes and the Class C
Certificates.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the
Noteholders and the Certificateholders evidencing not less than a majority of
the principal amount of the Notes Outstanding and the Aggregate Certificate
Balance, respectively. Any such consent by the Certificateholder of this
Certificate shall be conclusive and binding on such Certificateholder and on all
future Certificateholders of this Certificate and of any Certificate issued upon
the registration of Transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of any of the 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 The Bank of New York
(Delaware) in its capacity as Certificate Registrar, or by any successor
Certificate Registrar, in New York, New York, accompanied by a writ ten
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.
44
The Certificates may not be acquired by or on behalf of (A) an
employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to
Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code that is
subject to Section 4975 of the Code, (C) 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, (D) 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 (E) a
person investing "plan assets" of any such plan (including without limitation,
for purposes of this clause (E), an insurance company general account, but
excluding any entity registered under the Investment Company Act of 1940, as
amended).
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 and the Certificateholders of all amounts required to be paid to
them pursuant to the Indenture, the Trust Agreement and the Sale and Servicing
Agreement, and upon such termination any remaining assets of the Trust shall be
distributed to the Depositor. The Servicer of the Receivables may at its option
purchase the assets of the Trust at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
45
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.
46
EXHIBIT B
[FORM OF CLASS D CERTIFICATE]
NUMBER $39,254,000
R-_______ Private Placement
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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 (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
TO A PERSON THAT THE HOLDER REASON ABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER, WITHIN THE MEANING OF RULE 144A (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 F 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 D TO THE TRUST AGREEMENT,
(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 SUCH EVIDENCE ACCEPTABLE TO THE TRUST
AND THE INITIAL PURCHASER 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 E 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 TRUST AND THE
INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR
(4) TO THE DEPOSITOR, 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 1999-A
CLASS D 8.00% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the property of the Trust, as defined below,
which property includes a pool of motor vehicle retail installment sale
contracts, secured by security interests in the motor vehicles financed thereby,
conveyed to Ford Credit Auto Receivables Two L.P. by Ford Motor Credit Company
and conveyed by Ford Credit Auto Receivables Two L.P. 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
47
thereunder.
(This Certificate does not represent an interest in or obligation of Ford Motor
Credit Company, Ford Credit Auto Receivables Two L.P. or any of their respective
Affiliates, except to the extent described below.)
THIS CERTIFIES THAT _______is the registered owner of _______ DOLLARS
nonassessable, fully-paid, beneficial interest in Class D Certificates of Ford
Credit Auto Owner Trust 1999-A (the "Trust") formed by Ford Credit Auto
Receivables Two L.P., a Delaware limited partnership (the "Depositor"). The
Class D Certificates have an aggregate Initial Certificate Balance of
$39,254,000 and bear interest at a rate of 8.00% per annum (the "Class D Rate").
48
The Trust was created pursuant to an Amended and Restated Trust
Agreement, dated as of January 1, 1999 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"), among
the Depositor, The Bank of New York (Delaware), not in its individual capacity
but solely as Delaware trustee (the "Delaware Trustee") and The Bank of New
York, 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 8.00% Asset Backed Certificates" (herein called the "Class D
Certificates") which, together with the Certificates designated as "Class C
6.52% Asset Backed Certificates" (the "Class C Certificates" and, together with
the Class D Certificates, 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, 1999 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Trust and The Chase Manhattan Bank, as indenture trustee (in such capacity, the
"Indenture Trustee"), are the Notes designated as "Class A-1 5.010% Asset
Backed Notes", "Class A-2 5.089% Asset Backed Notes", "Class A-3 5.31% Asset
Backed Notes", "Class A-4 5.31% Asset Backed Notes", "Class A-5 5.38% Asset
Backed Notes", "Class A-6 5.41% Asset Backed Notes" and "Class B 5.79% Asset
Backed Notes" (collectively, the "Notes"). The property of the Trust includes
(i) a pool of motor vehicle retail installment sale contracts for new and used
automobiles and light trucks and certain rights and obligations thereunder (the
"Receivables"); (ii) with respect to Precomputed 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) the security interests in the Financed Vehicles granted by Obligors
pursuant to the Receivables and any other interest of the Trust in the Financed
Vehicles; (iv) rights to proceeds from claims on certain physical damage, credit
life, credit disability or other insurance policies, if any, covering Financed
Vehicles or Obligors; (v) Dealer Recourse; (vi) all of the Seller's rights to
the Receivable Files; (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, 1999 (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) payments and proceeds with
respect to the Receivables held by the Servicer; (xi) all property (including
the right to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable repurchased by the Servicer or purchased by the Seller); (xii)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cutoff Date; and (xiii)
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.
49
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 "Distribution Date"), commencing February 16, 1999, 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 Distribution Date; provided, however, that principal
will be distributed to the Class D Certificateholders on each Distribution Date
on (to the extent of funds remaining after all classes of the Notes and the
Class C Certificates have been paid in full) and after the date on which all
classes of the Notes and the Class C Certificates 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 or following certain events of insolvency or a
dissolution with respect to the Depositor or the General Partner, 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 CLASS C CERTIFICATEHOLDERS 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
as a partner ship and 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, the General Partner or the Trust,
or join in any institution against the Depositor, the General Partner 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
Notes, the Certificates, 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 New York, New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which
50
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.
51
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 1999-A
By: THE BANK OF NEW YORK,
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 21, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity
but solely as Owner Trustee
By:
------------------------
Authorized Officer
52
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the General Partner, 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 the Trust Agreement as an exhibit thereto, has been filed with the
Securities and Exchange Commission with respect to the Notes and the Class C
Certificates.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of the
Noteholders and the Certificateholders evidencing not less than a majority of
the principal amount of the Notes Outstanding and the Aggregate Certificate
Balance, respectively. Any such consent by the Certificateholder of this
Certificate shall be conclusive and binding on such Certificateholder and on all
future Certificateholders of this Certificate and of any Certificate issued upon
the registration of Transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of any of the 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 The Bank of New York
(Delaware) in its capacity as Certificate Registrar, or by any successor
Certificate Registrar, in New York, New York, 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.
53
The Certificates may not be acquired by or on behalf of (A) an
employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to
Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code that is
subject to Section 4975 of the Code, (C) 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, (D) 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 (E) a
person investing "plan assets" of any such plan (including without limitation,
for purposes of this clause (E), an insurance company general account, but
excluding any entity registered under the Investment Company Act of 1940, as
amended).
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 and the Certificateholders of all amounts required to be paid to
them pursuant to the Indenture, the Trust Agreement and the Sale and Servicing
Agreement, and upon such termination any remaining assets of the Trust shall be
distributed to the Depositor. The Servicer of the Receivables may at its option
purchase the assets of the Trust at a price specified in the Sale and Servicing
Agreement, and such purchase of the Receivables and other property of the Trust
will effect early retirement of the Notes and the Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to 10% of the Initial
Pool Balance.
54
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.
55
EXHIBIT C
[FORM OF INVESTMENT LETTER - CLASS C CERTIFICATES]
[Date]
Ford Credit Auto Owner Trust 1999-A,
as Issuer
The Bank of New York,
as Owner Trustee and
as Certificate Registrar
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of the Class C 6.52% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 1999-A
(the "Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (the
"Depositor" or "Seller"), we confirm that:
1. We are not, and each account (if any) for which we are purchasing the
Certificates is not, (A) 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, (B) 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, (C) 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, (D) 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. Sections 2510.3-101 or otherwise under ERISA) or (E) a
person investing "plan assets" of any such plan (including without limitation,
for purposes of this clause (E), an insurance company general account, but
excluding any entity registered under the Investment Company Act of 1940, as
amended).
2. We are, and each account (if any) for which we are purchasing
the Certificates 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
meeting the conditions of clause (A), (B), (C) or (E) of this paragraph 2 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 Issuer and the Depositor with an IRS Form 4224 (and such other
certifications, representations, or opinions of counsel as may be requested by
the Issuer or the Depositor).
3. We understand that any purported resale, transfer, assignment,
participation, pledge, or other disposal of (any such act, a "Transfer") of any
Certificate (or any interest therein) to any person who does not meet the
conditions of paragraphs 1 and 2 above shall be null and void (each, a "Void
Transfer"), and the purported transferee in a Void Transfer shall not be
recognized by the Issuer or any other person as a Certificateholder for any
purpose.
56
4. We agree that if we determine to Transfer any of the
Certificates we will cause our proposed transferee to provide to the Issuer and
the Certificate Registrar a letter substantially in the form of this letter.
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 balance of Certificates
Annex A attached hereto lists the name of the account and principal balance of
Certificates purchased for each account (if any) for which we are purchasing
Certificates.
57
EXHIBIT D
[FORM OF INVESTMENT LETTER - CLASS D CERTIFICATES
QUALIFIED INSTITUTIONAL BUYER]
[Date]
Ford Credit Auto Owner Trust 1999-A
as Issuer
The Bank of New York
as Owner Trustee and
Certificate Registrar
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Ford Credit Auto Owner Trust 1999-A
Class D 8.00% Asset Backed Certificates
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 8.00% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 1999-A
(the "Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (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 E 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 not, and each account (if any) for which we are purchasing
the Certificates is not, (A) 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, (B) 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, (C) 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, (D) 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 (E) a
person investing "plan assets" of any such plan (including without
limitation, for purposes of this clause (E), an insurance company general
account, but excluding any
58
entity registered under the Investment Company Act of 1940, as amended).
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
59
EXHIBIT E
[FORM OF INVESTMENT LETTER - CLASS D CERTIFICATES
INSTITUTIONAL ACCREDITED INVESTOR]
[Date]
Ford Credit Auto Owner Trust 1999-A
as Issuer
The Bank of New York
as Owner Trustee and
Certificate Registrar
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Ford Credit Auto Owner Trust 1999-A
Class D 8.00% Asset Backed Certificates
Ladies and Gentlemen:
In connection with our proposed purchase of the Class D 8.00% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 1999-A
(the "Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (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 D 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 not, and each account (if any) for which we are purchasing
the Certificates is not, (A) 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, (B) 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, (C) 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, (D) 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 (E) a
person investing "plan assets" of any such plan (including
60
without limitation, for purposes of this clause (E), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended).
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, regard less 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
61
EXHIBIT F
FORM OF RULE 144A TRANSFEROR CERTIFICATE -
CLASS D CERTIFICATES
[Date]
The Bank of New York
as Owner Trustee and
Certificate Registrar
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Ford Credit Auto Owner Trust 1999-A
Class D 8.00% Asset Backed Certificates
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in denomination of
Class D 8.00% Asset Backed Certificates (the "Certificates") of Ford Credit Auto
Owner Trust 1999-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 , 199
[ ], as specified in the Trust Agreement dated as of January 1, 1999 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
62
EXHIBIT G
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
FORD CREDIT AUTO OWNER TRUST 1999-A
This Certificate of Trust of FORD CREDIT AUTO OWNER TRUST 1999-A (the
"Trust"), dated as of January 1, 1999, is being duly executed and filed by The
Bank of New York (Delaware), a Delaware banking corporation, as Delaware trustee
(the "Delaware Trustee") and The Bank of New York, a New York banking
corporation, as owner trustee (the "Owner Trustee"), to form a business trust
under the Delaware Business Trust Act (12 Delaware Code, Sections 3801 et seq.)
(the"Act").
1. Name. The name of the business trust formed hereby is FORD CREDIT
AUTO OWNER TRUST 1999-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, 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.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Owner Trustee under a Trust
Agreement dated as of January 1,
1999
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely as Delaware Trustee under a
Trust Agreement dated as of January
1, 1999
By:
-------------------------------
Name:
Title:
63
APPENDIX A
Definitions and Usage
SEE TAB NO. 11
64
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE
ARTICLE II ORGANIZATION OF THE TRUST
SECTION 2.1. Name.......................................................2
SECTION 2.2. Offices....................................................2
SECTION 2.3. Purposes and Powers........................................2
SECTION 2.4. Appointment of Owner Trustee...............................3
SECTION 2.5. Appointment of Delaware Trustee............................3
SECTION 2.6. Capital Contribution of Owner Trust Estate.................4
SECTION 2.7. Declaration of Trust.......................................4
SECTION 2.8. Liability of the Depositor.................................5
SECTION 2.9. Title to Trust Property....................................5
SECTION 2.10. Situs of Trust.............................................5
SECTION 2.11. Representations and Warranties of the Depositor............5
SECTION 2.12. Federal Income Tax Matters.................................7
ARTICLE III TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership..............................10
SECTION 3.2. Capital Accounts..........................................10
SECTION 3.3. The Certificates..........................................11
SECTION 3.4. Authentication of Certificates............................11
SECTION 3.5. Registration of Certificates; Transfer
and Exchange of Certificates..............................12
SECTION 3.6. Mutilated, Destroyed, Lost or Stolen Certificates.........19
SECTION 3.7. Persons Deemed Owners of Certificates.....................19
SECTION 3.8. Access to List of Certificateholders'
Names and Addresses...................................... 20
SECTION 3.9. Maintenance of Office or Agency...........................20
SECTION 3.10. Appointment of Certificate Paying Agent...................21
SECTION 3.11. Certain Rights of Depositor...............................22
ARTICLE IV ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with
Respect to Certain Matters................................22
SECTION 4.2. Action by Certificateholders with
Respect to Certain Matters................................23
SECTION 4.3. Action by Certificateholders with
Respect to Bankruptcy.....................................24
SECTION 4.4. Restrictions on Certificateholders' Power.................24
SECTION 4.5. Majority Control..........................................24
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate
Distribution Account......................................25
SECTION 5.2. Application of Trust Funds................................25
SECTION 5.3. Method of Payment.........................................28
SECTION 5.4. No Segregation of Monies; No Interest.....................28
SECTION 5.5. Accounting and Reports to Noteholders,
Certificateholders, Internal Revenue
Service and Others........................................29
SECTION 5.6. Signature on Returns; Tax Matters Partner.................29
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.........................................30
SECTION 6.2. General Duties............................................30
SECTION 6.3. Action upon Instruction...................................31
65
SECTION 6.4. No Duties Except as Specified in this
Agreement or in Instructions..............................32
SECTION 6.5. No Action Except Under Specified
Documents or Instructions.................................33
SECTION 6.6. Restrictions..............................................33
ARTICLE VII REGARDING THE OWNER TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties...........................33
SECTION 7.2. Furnishing of Documents...................................35
SECTION 7.3. Representations and Warranties............................36
SECTION 7.4. Reliance; Advice of Counsel...............................37
SECTION 7.5. Not Acting in Individual Capacity.........................38
SECTION 7.6. Owner Trustee Not Liable for
Certificates or Receivables...............................38
SECTION 7.7. Co-Trustees May Own Certificates and Notes................39
ARTICLE VIII COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 8.1. Owner Trustee's Fees and Expenses.........................39
SECTION 8.2. Indemnification...........................................39
SECTION 8.3. Payments to Co-Trustees...................................40
ARTICLE IX TERMINATION
SECTION 9.1. Termination of Trust Agreement............................40
SECTION 9.2. Dissolution upon Insolvency or
Dissolution of Depositor or General Partner...............42
SECTION 9.3. Prepayment of Certificates................................44
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner Trustee................45
SECTION 10.2. Resignation or Removal of Owner Trustee
or the Delaware Trustee...................................46
SECTION 10.3. Successor Owner Trustee or Delaware Trustee...............47
SECTION 10.4. Merger or Consolidation of Owner Trustee
or Delaware Trustee.......................................48
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.............49
SECTION 10.6. Compliance with Business Trust Statute....................51
ARTICLE XI MISCELLANEOUS
SECTION 11.1. Supplements and Amendments................................51
SECTION 11.2. No Legal Title to Owner Trust Estate
in Certificateholders.....................................53
SECTION 11.3. Limitation on Rights of Others............................53
SECTION 11.4. Notices...................................................54
SECTION 11.5. Severability..............................................54
SECTION 11.6. Separate Counterparts.....................................54
SECTION 11.7. Successors and Assigns....................................55
SECTION 11.8. No Petition...............................................55
SECTION 11.9. No Recourse...............................................55
SECTION 11.10. Headings..................................................55
SECTION 11.11. Governing Law.............................................55
SECTION 11.12. Sale and Servicing Agreement Obligations..................56
66
EXHIBIT A [FORM OF CLASS C CERTIFICATE]...........................A-1
EXHIBIT B [FORM OF CLASS D CERTIFICATE]...........................B-1
EXHIBIT C [FORM OF INVESTMENT LETTER -
CLASS C CERTIFICATES]...................................C-1
EXHIBIT D [FORM OF INVESTMENT LETTER -
CLASS D CERTIFICATES QUALIFIED
INSTITUTIONAL BUYER]....................................D-1
EXHIBIT E [FORM OF INVESTMENT LETTER -
CLASS D CERTIFICATES INSTITUTIONAL
ACCREDITED INVESTOR]....................................E-1
EXHIBIT F FORM OF RULE 144A TRANSFEROR
CERTIFICATE - CLASS D CERTIFICATES......................F-1
EXHIBIT G [FORM OF CERTIFICATE OF TRUST]..........................G-1
APPENDIX A Definitions and Usage..................................AA-1
