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Exhibit 4.2
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 May 1, 1999
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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......................................6
SECTION 2.10. Situs of Trust...............................................6
SECTION 2.11. Representations and Warranties of the
Depositor....................................................6
SECTION 2.12. Federal Income Tax Matters...................................8
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.......................20
SECTION 3.8. Access to List of Certificateholders'
Names and Addresses.........................................20
SECTION 3.9. Maintenance of Office or Agency.............................21
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.................................23
SECTION 4.2. Action by Certificateholders with
Respect to Certain Matters.................................24
SECTION 4.3. Action by Certificateholders with
Respect to Bankruptcy......................................24
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SECTION 4.4. Restrictions on Certificateholders'
Power.........................................................25
SECTION 4.5. Majority Control..............................................25
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate
Distribution Account..........................................25
SECTION 5.2. Application of Trust Funds....................................26
SECTION 5.3. Method of Payment.............................................28
SECTION 5.4. No Segregation of Monies; No Interest.........................29
SECTION 5.5. Accounting and Reports to Noteholders,
Certificateholders, Internal Revenue
Service and Others............................................29
SECTION 5.6. Signature on Returns; Tax Matters
Partner.......................................................30
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority.............................................30
SECTION 6.2. General Duties................................................31
SECTION 6.3. Action upon Instruction.......................................31
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...............................34
SECTION 7.2. Furnishing of Documents.......................................36
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................................................40
SECTION 8.3. Payments to Co-Trustees........................................40
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ARTICLE IX TERMINATION
SECTION 9.1. Termination of Trust Agreement............................41
SECTION 9.2. Dissolution upon Insolvency or
Dissolution of Depositor or General
Partner...................................................43
SECTION 9.3. Prepayment of Certificates................................44
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES
SECTION 10.1. Eligibility Requirements for Owner
Trustee...................................................46
SECTION 10.2. Resignation or Removal of Owner Trustee
or the Delaware Trustee...................................46
SECTION 10.3. Successor Owner Trustee or Delaware
Trustee...................................................48
SECTION 10.4. Merger or Consolidation of Owner Trustee
or Delaware Trustee.......................................49
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............................54
SECTION 11.4. Notices...................................................54
SECTION 11.5. Severability..............................................55
SECTION 11.6. Separate Counterparts.....................................55
SECTION 11.7. Successors and Assigns....................................55
SECTION 11.8. No Petition...............................................55
SECTION 11.9. No Recourse...............................................55
SECTION 11.10. Headings..................................................56
SECTION 11.11. Governing Law.............................................56
SECTION 11.12. Sale and Servicing Agreement
Obligations...............................................56
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EXHIBIT A [FORM OF CLASS C CERTIFICATE]................................A-1
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EXHIBIT B [FORM OF CLASS D CERTIFICATE]................................B-1
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EXHIBIT C [FORM OF INVESTMENT LETTER -
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CLASS C CERTIFICATES]........................................C-1
EXHIBIT D [FORM OF INVESTMENT LETTER -
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CLASS D CERTIFICATES QUALIFIED
INSTITUTIONAL BUYER].........................................D-1
EXHIBIT E [FORM OF INVESTMENT LETTER -
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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
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APPENDIX A Definitions and Usage.......................................AA-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 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, Xxxxxxxx, 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 May 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.
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ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust created hereby shall be known as "Ford Credit
Auto Owner Trust 1999-B", 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:
(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;
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(v) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the Noteholders
and the Certificateholders.
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
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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 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 May 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 in trust
from the Depositor, as of such date, of the foregoing contribution, which shall
constitute the initial Owner Trust Estate and shall be deposited in the
Certificate Distribution Account. The Depositor shall pay the organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee 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 re-
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quired 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 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.
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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 and the Delaware
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
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its terms, and the Depositor has full power and authority to sell and assign the
property to be sold and assigned to, and deposited with, the Trust, and the
Depositor has duly authorized such sale and assignment and deposit to the Trust;
and the execution, delivery and performance of this Agreement has been duly
authorized by the Depositor.
(d) This Agreement constitutes a legal, valid, and binding obligation of
the Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws and to general equitable principles.
(e) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof do not conflict with, result in any breach
of any of the terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, the Certificate of 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
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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 income, 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 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
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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.
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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 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
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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, assigned,
participated, pledged, or otherwise disposed of (any such act, a "Transfer") to
any Person except in accordance with the provisions of Section 3.5 and any
attempted Transfer in violation of Section 3.5 shall be null and void (each a
"Void Transfer").
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,
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authenticated and delivered to or upon the written order of the Depositor,
signed by the chairman of the board, the president, any executive vice
president, any vice president, the secretary, any assistant secretary, the
treasurer or any assistant treasurer of the 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 either:
(A) not, and each account (if any) for which it is purchasing the
Class C Certificates is not (1) an employee benefit plan, as defined
in Section 3(3) of ERISA, that is subject to Title I of ERISA, (2) a
plan described in Section 4975(e)(1) of the Code that is subject to
Section 4975 of the Code, (3) a governmental
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plan, as defined in Section 3(32) of ERISA, subject to any federal,
State or local law which is, to a material extent, similar to the
provisions of Section 406 of ERISA or Section 4975 of the Code, (4) an
entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under ERISA) or
(5) a person investing "plan assets" of any such plan (including
without limitation, for purposes of this clause (5), an insurance
company general account, but excluding any entity registered under the
Investment Company Act of 1940, as amended); or
(B) an insurance company acting on behalf of a general account
and (1) on the date of purchase less than 25% of the assets of such
general account (as reasonably determined by it) constitute "plan
assets" for purposes of Title I of ERISA and Section 4975 of the Code,
(2) the purchase and holding of such Class C Certificates are eligible
for exemptive relief under Sections (I) and (III) of Prohibited
Transaction Class Exemption 95-60, and (3) the purchaser agrees that
if, after the purchaser's initial acquisition of the Class C
Certificates, at any time during any calendar quarter 25% or more of
the assets of such general account (as reasonably determined by it no
less frequently than each calendar quarter) constitute "plan assets"
for purposes of Title I of ERISA or Section 4975 of the Code and no
exemption or exception from the prohibited transaction rules applies
to the continued holding of the Class C Certificates under Section
401(c) of ERISA and the final regulations thereunder or under an
exemption or regulation issued by the United States Department of
Labor under ERISA, it will dispose of all Class C Certificates then
held in its general account by the end of the next following calendar
quarter.
(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
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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
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 otherwise by the Administrator (as certified to the
Owner Trustee in an Officer's Certificate) and the Owner Trustee consistent with
applicable law:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR
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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 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
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 OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES."
As a condition to the registration of any Transfer of a Class
D Certificate, the prospective transferee of such a Class D Certificate shall be
required to
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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, 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
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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 represents to the Depositor, the Trust and
the Certificate Registrar, that no Transfer of such Class D Certificate shall be
made unless the registration requirements of the Securities Act and any
applicable State securities laws are complied with, or such Transfer is exempt
from the registration requirements under the Securities Act because the Transfer
satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A under the
Securities Act ("Rule 144A"), to a transferee who the transferor
reasonably believes is a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified
Institutional Buyer and to whom notice is given that such Transfer is
being made in reliance upon Rule 144A under the Securities Act and (x)
the transferor executes and delivers to the Trust and the Certificate
Registrar, a Rule 144A transferor certificate substantially in the
form attached as Exhibit F and (y) the transferee executes and
delivers to the Trust and the Certificate Registrar an
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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
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register any Class D Certificate under the Securities Act or any other
securities law.
(f) Upon surrender for registration of Transfer of any
Certificate at the office or agency maintained pursuant to Section 3.9 and upon
compliance with any provisions of this Agreement relating to such Transfer, the
Owner Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates in authorized
denominations of a like Class and aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the option
of a Certificateholder, Certificates may be exchanged for other Certificates of
authorized denominations of a like Class and aggregate amount upon surrender of
the Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.9.
Every Certificate presented or surrendered for registration of
Transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney 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 cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of
Transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any Transfer or
exchange of Certificates.
The preceding provisions of this Section 3.5 notwithstanding,
the Owner Trustee shall not make and the Certificate Registrar need not register
any Transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Distribution Date for any payment with respect to the
Certificates.
SECTION 3.6. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate
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shall be surrendered to the Certificate Registrar, or if the Certificate
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there shall be delivered to the Certificate
Registrar and the Owner Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice that such
Certificate shall have been acquired by a protected purchaser, the Owner Trustee
on behalf of the Trust shall execute and the Owner Trustee shall authenticate
and deliver, in exchange for, or in lieu of, any such mutilated, destroyed, lost
or stolen Certificate a new Certificate of like Class, tenor and denomination.
In connection with the issuance of any new Certificate under this Section 3.6,
the Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
3.6 shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.7. Persons Deemed Owners of Certificates. Prior to due
presentation of a Certificate for registration of Transfer, the Owner Trustee,
the Certificate Registrar and any Certificate Paying Agent may treat the Person
in whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.2 and for all other purposes whatsoever, and none of the
Owner Trustee, the Certificate Registrar or any Certificate Paying Agent shall
be bound by any notice to the contrary.
SECTION 3.8. Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, or to the Indenture Trustee, within fifteen (15) days after receipt
by the Owner Trustee of a written request therefor from the Servicer or the
Depositor, or the Indenture Trustee, as the case may be, a list, in such form as
the requesting party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Certificateholders of Certificates evidencing
not less
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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, regardless 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 corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and to the Certificateholders of any change in the
location of the Certificate Registrar or any such office or agency.
SECTION 3.10. Appointment of Certificate Paying Agent. The Certificate
Paying Agent shall make distributions to Certificateholders from each
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Certificate Paying Agent
shall have the revocable power to withdraw funds from each Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate Paying
Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Certificate Paying Agent shall
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initially be the Owner Trustee, and any co-paying agent chosen by the Owner
Trustee. The Owner Trustee shall be permitted to resign as Certificate Paying
Agent upon thirty (30) days' written notice to the Owner Trustee. In the event
that the Bank shall no longer be the Certificate Paying Agent, the Owner Trustee
shall appoint a successor to act as Certificate Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Certificate
Paying Agent or any additional Certificate Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Owner Trustee that as Certificate Paying Agent, such successor
Certificate Paying Agent or additional Certificate Paying Agent will hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Certificate Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.1, 7.3, 7.4 and
8.1 shall apply to the Owner Trustee also in its role as Certificate Paying
Agent, for so long as the Owner Trustee shall act as Certificate Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Certificate Paying Agent shall include
any co-paying agent unless the context requires otherwise.
SECTION 3.11. Certain Rights of Depositor. The Depositor shall be entitled
to any amounts not needed on any 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 Reserve Account following the payment in full of the aggregate
principal amount of the Notes and the Aggregate Certificate Balance and of all
other amounts owing or to be distributed hereunder or under the Indenture or the
Sale and Servicing Agreement to Noteholders and Certificateholders and the
termination of the Trust. The Depositor 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
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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) Certificateholders
holding not less than a majority of the Aggregate Certificate Balance shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought by the Servicer in connection with the
collection of the Receivables) and the settlement of any material action,
claim or lawsuit brought by or against the Trust (except with respect to
the aforementioned claims or lawsuits for collection by the Servicer of the
Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the 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
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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.
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SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the other Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Certificateholders of Certificates evidencing not less than a
majority of the Aggregate Certificate Balance. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders of Certificates
evidencing not less than a majority of the Aggregate Certificate Balance at the
time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account. Pursuant to
Section 4.1(c) of the Sale and Servicing Agreement, there has been established
and there shall be maintained two segregated trust accounts, each in the name of
"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
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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 Certificates, an
amount equal to the Accrued Class D Certificate Interest; provided
that if there are not sufficient funds available to pay the entire
amount of the Accrued Class D Certificate Interest, the amounts
available shall be applied to the payment of such interest on the
Class D Certificates on a pro rata basis; and
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(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
Balance of the Class D Certificates to zero, the amounts
available shall be applied to the reduction of the Certificate
Balance of the Class D Certificates on pro rata basis; and
(3) third, to the Depositor, any funds remaining on deposit
in the 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
related Record Date the statement provided to the Owner
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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 withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may, in its sole discretion, withhold such
amounts in accordance with this paragraph (c). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax, the
Owner Trustee shall reasonably cooperate with such Certificateholder in making
such claim so long as such Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any 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
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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.
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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.
(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 $476,000,000, (ii) Class
A-2 Notes in the aggregate principal amount of $350,000,000, (iii) Class A-3
Notes in the aggregate principal amount of $1,039,000,000, (iv) Class A-4 Notes
in the aggregate principal amount of $610,650,000, (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 $110,200,000. 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.
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SECTION 6.2. General Duties. Subject to Section 4.1 hereof,
it shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all of its responsibilities pursuant to the terms of this Agreement
and the other Basic Documents to which the Trust is a party and to administer
the Trust in the interest of the Certificateholders, subject to the lien of the
Indenture and in accordance with the provisions of this Agreement and the other
Basic Documents. Notwithstanding anything else to the contrary in this
Agreement, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement to perform any act or
to discharge such duty of the Owner Trustee or the Trust hereunder or under any
other Basic Document, and the Owner Trustee shall not be held liable for the
default or failure of the Administrator to carry out its obligations under the
Administration Agreement. Except as expressly provided in the Basic Documents,
the Owner Trustee shall have no obligation to administer, service or collect the
Receivables or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article
IV, and in accordance with the terms of the Basic Documents, the
Certificateholders may, by written instruction, direct the Owner Trustee in the
management of the Trust.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in
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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,
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or in connection with, any document contemplated hereby to which the Owner
Trustee or the Trust is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.3; and no implied duties or obligations shall be
read into this Agreement or any other Basic Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for the Trust or to record
this Agreement or any other Basic Document. The Owner Trustee nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any lien (other than the lien of the Indenture) on
any part of the Owner Trust Estate that results from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.5. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the other Basic
Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders shall
direct the Trustee to take any action that would violate the provisions of this
Section 6.5.
SECTION 6.6. Restrictions. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Owner Trustee, would (i)
affect the treatment of the Notes as indebtedness for federal income or
Applicable Tax State income or franchise tax purposes, (ii) be deemed to cause a
taxable exchange of the Notes for federal income or Applicable Tax State income
or franchise tax purposes or (iii) cause the Trust or any portion thereof to be
taxable as an association (or publicly traded partnership) taxable as a
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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;
(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 reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
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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 otherwise 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 discre-
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tionary 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:
(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.
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(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
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cers of the relevant party, as to such fact or matter and such certificate shall
constitute full protection to the 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
representations as to the validity or sufficiency of this Agreement, of any
other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or the Notes, or of
any Receivable or related documents. The Owner Trustee, the Delaware Trustee,
The Bank of New York and The Bank
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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 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
rea-
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sonable 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.
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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 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
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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
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 certifi-
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cate 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 outstanding 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 Administrator 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
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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, 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 Certificates 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
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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
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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 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 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, as applicable, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning
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Owner Trustee or Delaware Trustee and one copy to the applicable 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 Administra-
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tor 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 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
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cause such notice to be mailed at the expense of the Administrator.
Any successor Delaware Trustee appointed hereunder shall file
the amendments to the Certificate of Trust with the Secretary of State
identifying the name and principal place of business of such successor 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 hereunder; 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.
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
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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
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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.
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
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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 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
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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
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interests therein only in accordance with Articles V and IX. No transfer, by
operation of law or otherwise, of any right, title, or interest of the
Certificateholders to and in their beneficial interest in the Owner Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Owner Trust Estate.
SECTION 11.3. Limitation on Rights of Others. Except for
Sections 2.7 and 11.1, the provisions of this Agreement are solely for the
benefit of the Owner Trustee, the Delaware 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
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 and the Delaware Trustee shall be deemed given
only upon actual receipt by the Owner Trustee and the Delaware Trustee,
respectively), if to the Owner Trustee or the Delaware Trustee, addressed to the
respective 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.
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SECTION 11.5. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Depositor, the Owner Trustee and its successors and each Certificateholder
and its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. No Petition. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), by entering into this
Agreement, and each Certificateholder, by accepting a Certificate, hereby
covenants and agrees that it will not, until after the Notes have been paid in
full, institute against the Depositor, 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,
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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, 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.
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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/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
63
EXHIBIT A
[FORM OF CLASS C CERTIFICATE]
NUMBER $62,975,000
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-B
CLASS C 6.65% 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-B (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
$62,975,000 and bear interest at a rate of 6.65% per annum (the "Class C Rate").
A-1
64
The Trust was created pursuant to an Amended and Restated
Trust Agreement, dated as of May 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 6.65% 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 May 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
4.978% Asset Backed Notes", "Class A-2 5.114% Asset Backed Notes", "Class A-3
5.47% Asset Backed Notes", "Class A-4 5.80% Asset Backed Notes", "Class A-5
5.91% Asset Backed Notes", "Class A-6 5.99% Asset Backed Notes" and "Class B
6.16% 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
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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 May 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.
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 June 15, 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
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66
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
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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.
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.
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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-B
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: May 26, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity
but solely as Owner Trustee
By:
-----------------------------------
Authorized Officer
69
[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-
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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.
The Class C Certificates may be acquired only by an entity
that is either: (a) not, and each account (if any) for which it is purchasing
the Class C Certificates is not (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code") that is
subject to Section 4975 of the Code, (iii) a governmental plan, as defined in
Section 3(32) of ERISA, subject to any federal, State or local law which is, to
a material extent, similar to the provisions of Section 406 of ERISA or Section
4975 of the Code, (iv) an entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under ERISA) or (v) a
person investing "plan assets" of any such plan (includ-
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71
ing without limitation, for purposes of this clause (v), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended); or (b) an insurance company acting on behalf
of a general account and (i) on the date of purchase less than 25% of the assets
of such general account (as reasonably determined by it) constitute "plan
assets" for purposes of Title I of ERISA and Section 4975 of the Code, (ii) the
purchase and holding of such Class C Certificates are eligible for exemptive
relief under Sections (I) and (III) of Prohibited Transaction Class Exemption
95-60, and (iii) the purchaser agrees that if, after the purchaser's initial
acquisition of the Class C Certificates, at any time during any calendar quarter
25% or more of the assets of such general account (as reasonably determined by
it no less frequently than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and no exemption or
exception from the prohibited transaction rules applies to the continued holding
of the Class C Certificates under Section 401(c) of ERISA and the final
regulations thereunder or under an exemption or regulation issued by the United
States Department of Labor under ERISA, it will dispose of all Class C
Certificates then held in its general account by the end of the next following
calendar quarter.
In addition, the Certificates may not be acquired by or on
behalf of a Person other than (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the United
States or any political subdivision thereof, (C) an estate the income of which
is includible in gross income for United States tax purposes, regardless of its
source, (D) a trust if a U.S. court is able to exercise primary supervision over
the administration of such trust and one or more Persons meeting the conditions
of this paragraph has the authority to control all substantial decisions of the
trust or (E) a Person not described in clauses (A) through (D) above whose
ownership of the Certificates is effectively connected with such Person's
conduct of a trade or business within the United States (within the meaning of
the Code) and who provides the Owner Trustee and the Depositor with an IRS Form
4224 (and such other certifications, representations, or opinions of counsel as
may be requested by the Owner Trustee or the Depositor).
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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.
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73
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.
X-00
00
XXXXXXX X
[FORM OF CLASS D CERTIFICATE]
NUMBER $62,975,000
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 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,
(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
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75
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-B
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 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-B (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 $62,975,000 and bear interest at a rate of 8.00% per annum (the
"Class D Rate").
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76
The Trust was created pursuant to an Amended and Restated
Trust Agreement, dated as of May 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 6.65% 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 May 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 X- 0
4.978% Asset Backed Notes", "Class A-2 5.114% Asset Backed Notes", "Class A-3
5.47% Asset Backed Notes", "Class A-4 5.80% Asset Backed Notes", "Class A-5
5.91% Asset Backed Notes", "Class A-6 5.99% Asset Backed Notes" and "Class B
6.16% 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
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77
as from time to time may be held in one or more accounts maintained pursuant to
the Sale and Servicing Agreement, dated as of May 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.
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 June 15, 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.
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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 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,
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79
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Certificateholder hereof to
any benefit under the Trust Agreement or the Sale and Servicing Agreement or be
valid for any purpose.
This Certificate shall be construed in accordance with the
laws of the State of Delaware and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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80
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-B
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: May 26, 0000
XXX XXXX XX XXX XXXX,
not in its individual capacity
but solely as Owner Trustee
By:
-----------------------------------
Authorized Officer
81
[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
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82
such holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee.
The Certificates are issuable as registered Certificates
without coupons in denominations of at least $20,000 and in integral multiples
of $1,000 in excess thereof. Certificates are exchangeable for new Certificates
of like Class and authorized denominations evidencing the same aggregate
denomination, as requested by the Certificateholder surrendering the same. No
service charge will be made for any such registration of Transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Class D Certificates may 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)
B-9
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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.
B-10
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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.
B-11
85
EXHIBIT C
[FORM OF INVESTMENT LETTER - CLASS C CERTIFICATES]
[Date]
Ford Credit Auto Owner Trust 1999-B,
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 6.65% Asset
Backed Certificates (the "Certificates") of Ford Credit Auto Owner Trust 1999-B
(the "Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (the
"Depositor" or "Seller"), we confirm that:
1. We are either:
(a) not, and each account (if any) for which we are purchasing
the Certificates is not (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to
Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended (the "Code")
that is subject to Section 4975 of the Code, (iii) a
governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a
material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (iv) an entity whose
underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. Section 2510.3-101 or otherwise
under ERISA) or (v) a person investing "plan assets" of any
such plan (including without limitation, for purposes of this
clause (v), an insurance company general account, but
excluding an entity registered under the Investment Company
Act of 1940, as amended), or
(b) an insurance company acting on behalf of a general account
and (i) on the date hereof less than 25% of the assets of such
general account
C-1
86
(as reasonably determined by us) constitute "plan assets" for
purposes of Title I of ERISA and Section 4975 of the Code,
(ii) the purchase and holding of such Certificates are
eligible for exemptive relief under Sections (I) and (III) of
Prohibited Transaction Class Exemption 95-60, and (iii) the
undersigned agrees that if, after the undersigned's initial
acquisition of the Certificates, at any time during any
calendar quarter 25% or more of the assets of such general
account (as reasonably determined by us no less frequently
than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and
no exemption or exception from the prohibited transaction
rules applies to the continued holding of the Certificates
under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the
DOL under ERISA, we will dispose of all Certificates then held
in our general account by the end of the next following
calendar quarter.
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
C-2
87
the Issuer or any other person as a Certificateholder for any purpose.
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.
C-3
88
EXHIBIT D
[FORM OF INVESTMENT LETTER - CLASS D CERTIFICATES
QUALIFIED INSTITUTIONAL BUYER]
[Date]
Ford Credit Auto Owner Trust 1999-B
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-B
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-B (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.
D-1
89
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 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
D-2
90
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
D-3
91
EXHIBIT E
[FORM OF INVESTMENT LETTER - CLASS D CERTIFICATES
INSTITUTIONAL ACCREDITED INVESTOR]
[Date]
Ford Credit Auto Owner Trust 1999-B
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-B
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-B
(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
E-1
92
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 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
E-2
93
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
X-0
00
XXXXXXX X
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-B
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-B (the "Issuer").
The undersigned is the holder of the Certificates and with this notice
hereby deposits with the Owner Trustee $ [*] in denomination of Certificates and
requests that Certificates of the same class in the same aggregate denomination
be issued, executed and authenticated and registered to the purchaser on ,
199[ ], as specified in the Trust Agreement dated as of May 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
F-1
95
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
F-2
96
EXHIBIT G
[FORM OF CERTIFICATE OF TRUST]
CERTIFICATE OF TRUST OF
FORD CREDIT AUTO OWNER TRUST 1999-B
This Certificate of Trust of FORD CREDIT AUTO OWNER TRUST
1999-B (the "Trust"), dated as of May 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, ss. 3801 et seq.) (the
"Act").
1. Name. The name of the business trust formed hereby is FORD
CREDIT AUTO OWNER TRUST 1999-B.
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 on May 1, 1999.
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 May 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 May 1,
1999
By:
---------------------------
Name:
Title:
G-1
97
APPENDIX A
Definitions and Usage
SEE TAB NO. 11
