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 June 1, 2000
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TABLE OF CONTENTS
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<S> <C> <C>
Page
ARTICLE I
DEFINITIONS AND USAGE 1
ARTICLE II
ORGANIZATION OF THE TRUST 2
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 11
SECTION 3.1 Initial Beneficial Ownership 11
SECTION 3.2 Capital Accounts 11
SECTION 3.3 The Certificates 12
SECTION 3.4 Authentication of Certificates 12
SECTION 3.5 Registration of Certificates; Transfer
and Exchange of Certificates 13
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Certificates 20
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 23
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 25
SECTION 4.4 Restrictions on Certificateholders'
Power 25
SECTION 4.5 Majority Control 25
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES 25
SECTION 5.1 Establishment of Certificate
Distribution Account 25
SECTION 5.2 Application of Trust Funds 26
SECTION 5.3 Method of Payment 29
SECTION 5.4 No Segregation of Monies; No Interest 29
SECTION 5.5 Accounting and Reports to Noteholders,
Certificateholders, Internal 29
SECTION 5.6 Signature on Returns; Tax Matters
Partner 30
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE 30
SECTION 6.1 General Authority 30
SECTION 6.2 General Duties 31
SECTION 6.3 Action upon Instruction 32
SECTION 6.4 No Duties Except as Specified in this Agreement
or in Instructions 33
SECTION 6.5 No Action Except Under Specified
Documents or Instructions 34
SECTION 6.6 Restrictions 34
ARTICLE VII
REGARDING THE OWNER TRUSTEE AND THE DELAWARE TRUSTEE 34
SECTION 7.1 Acceptance of Trusts and Duties 34
SECTION 7.2 Furnishing of Documents 36
SECTION 7.3 Representations and Warranties 37
SECTION 7.4 Reliance; Advice of Counsel 38
SECTION 7.5 Not Acting in Individual Capacity 39
SECTION 7.6 Owner Trustee Not Liable for
Certificates or Receivables 39
SECTION 7.7 Co-Trustees May Own Certificates
and Notes 40
ARTICLE VIII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE........................................................ 40
SECTION 8.1 Owner Trustee's Fees and Expenses 40
SECTION 8.2 Indemnification 41
SECTION 8.3 Payments to Co-Trustees 41
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ARTICLE IX
TERMINATION 42
SECTION 9.1 Termination of Trust Agreement 42
SECTION 9.2 Prepayment of Certificates 44
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES 45
SECTION 10.1 Eligibility Requirements for Owner
Trustee and Delaware Trustee 45
SECTION 10.2 Resignation or Removal of Owner
Trustee or the Delaware Trustee 46
SECTION 10.3 Successor Owner Trustee or Delaware
Trustee 47
SECTION 10.4 Merger or Consolidation of Owner
Trustee or Delaware Trustee 49
SECTION 10.6 Compliance with Business Trust
Statute 51
ARTICLE XI
MISCELLANEOUS 51
SECTION 11.1 Supplements and Amendments 51
SECTION 11.2 No Legal Title to Owner Trust Estate
in Certificateholders 54
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 56
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
EXHIBIT B
FORM OF CLASS D CERTIFICATE....................................................................... B-1
EXHIBIT C
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER..................................................................... C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR................................................................. D-1
EXHIBIT E
FORM OF RULE 144A TRANSFEROR CERTIFICATE.......................................................... E-1
EXHIBIT F
FORM OF CERTIFICATE OF TRUST...................................................................... F-1
APPENDIX A
Definitions and Usage............................................................................ AA-1
</TABLE>
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This AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 1, 2000 (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 office at One American
Road, Dearborn, Michigan 48126; 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 White Clay Center, Route 273, Newark, Delaware 19711;
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
101 Barclay Street, Floor 12E, New York, New York 10286 for the purpose of
establishing the Ford Credit Auto Owner Trust 2000-C. 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 June 1, 2000, 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:
<PAGE>
2
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are
defined in Appendix A hereto, which also contains rules as to usage that shall
be applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1 Name. The Trust created hereby shall be known as "Ford Credit Auto
Owner Trust 2000-C", 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 sue 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. 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 each Certificate
Distribution Account and the proceeds thereof) to the Indenture Trustee
pursuant to the Indenture;
(v) to enter into and perform its obligations under the Basic Documents
to which it is to be a party;
(vi) to engage in those activities, including entering into agreements, that
are necessary, 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.
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The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5 Appointment of Delaware Trustee. The Delaware Trustee is appointed
to serve as the trustee of the Trust in the State of Delaware for the sole and
limited purpose of satisfying the requirement of Section 3807 of the Delaware
Business Trust Statute that the Trust have at least one trustee with a principal
place of business in Delaware. It is understood and agreed by the parties hereto
and the Certificateholders that the Delaware Trustee shall have none of the
duties or liabilities of the Owner Trustee. The duties of the Delaware Trustee
shall be limited to (a) accepting legal process served on the Trust in the State
of Delaware and (b) the execution of any certificates required to be filed with
the Secretary of State of the State of Delaware which the Delaware Trustee is
required to execute pursuant to Section 3811 of the Business Trust Statute, and
the Delaware Trustee shall provide prompt notice to the Owner Trustee of its
performance of any such acts. The parties hereto and the Certificateholders
understand and agree that the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
liabilities, of the Owner Trustee. The Delaware Trustee shall not be liable for
the acts or omissions of the Owner Trustee, the Depositor or the Trust. To the
extent that, at law or in equity, the Delaware Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Certificateholders, it is hereby understood and agreed by 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.
<PAGE>
SECTION 2.6 Capital Contribution of Owner Trust Estate. As of June 1, 2000, 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
required by the appropriate tax authorities, the Depositor, on behalf of the
Trust, will file or cause to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of the Trust as a
partnership for such tax purposes. Effective as of the date hereof, the Owner
Trustee shall have the rights, powers and duties set forth herein and in the
Business Trust Statute with respect to accomplishing the purposes of the Trust.
Together with the Delaware Trustee, the Owner Trustee has filed the Certificate
of Trust with the Secretary of State.
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SECTION 2.8 Liability of the Depositor. 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 2.8, shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.9 Title to Trust Property. Legal title to the entirety of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
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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 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 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
Certificateholders 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 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.
<PAGE>
If the gross ordinary income of the Trust for any month is insufficient for the
allocations described in paragraph (b) above, subsequent gross ordinary income
shall first be allocated to make up such shortfall before any allocation
pursuant to paragraph (c) above. Net losses of the Trust, if any, for any month
as determined for federal income tax purposes (and each item of income, gain,
credit, loss or deduction entering into the computation thereof) shall be
allocated to the Depositor to the extent the Depositor, in its capacity as
"general partner," is reasonably expected to bear the economic burden of such
net losses, and any remaining net losses shall be allocated among the
Certificateholders as of the Record Date occurring within such month in
proportion to their ownership of the Aggregate Certificate Balance on such
Record Date. The Depositor is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or the Certificateholders or as otherwise required by the Code.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Beneficial Ownership. Upon the formation of the Trust by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficial owner of the Owner
Trust Estate.
SECTION 3.2 Capital Accounts. (a) The Owner Trustee shall establish and maintain
a separate bookkeeping account (a "Capital Account") for the Depositor and each
Certificateholder. The initial balance of the Capital Account for (i) each
Certificateholder shall be the amount initially paid for such
Certificateholder?s Certificates and (ii) the Depositor shall be (x) the fair
market value of the Receivables minus (y) the proceeds of the sale of Notes net
of the Reserve Initial Deposit. The Capital Account of the Depositor or each
Certificateholder shall also be increased by (i) the dollar amount of any
additional cash contributions made by the Depositor or such Certificateholder,
as the case may be, (ii) the fair market value of any property (other than cash)
contributed to the Trust by the Depositor or such Certificateholder, as the case
may be (net of any liabilities to which the property is subject), and (iii)
allocations to the Depositor or such Certificateholder, as the case may be, of
income and gain (including income exempt from tax). The Capital Account of the
Depositor or each Certificateholder shall be decreased by (i) the dollar amount
of any cash distributions made to the Depositor or such Certificateholder, as
the case may be, (ii) the fair market value of any property (other than cash)
distributed to the Depositor or such Certificateholder, as the case may be (net
of any liabilities to which the property is subject), (iii) allocations to the
Depositor or such Certificateholder, as the case may be, of loss or deductions
(or items thereof), and (iv) any allocations of expenditures of the Trust
described in Section 705(a)(2)(B) of the Code.
(b) Notwithstanding any other provision of this Agreement to the contrary, the
foregoing provisions of this Section 3.2 regarding the maintenance of Capital
Accounts shall be construed so as to comply with the provisions of the Treasury
Regulations promulgated pursuant to Section 704 of the Code. The Depositor is
hereby authorized to modify these provisions to the minimum extent necessary to
comply with such regulations.
SECTION 3.3 The Certificates. (a) The Class 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").
(b) The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of an authorized officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(c) If Transfer of the Certificates is permitted pursuant to Section
3.5, a transferee of a Certificate shall become a Certificateholder, and shall
be entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee?s acceptance of a Certificate duly registered in
such transferee?s name pursuant to Section 3.5.
SECTION 3.4 Authentication of Certificates. Concurrently with the initial sale
of the Receivables to the Trust pursuant to the Sale and Servicing Agreement,
the Owner Trustee shall cause the Class C Certificates, in an aggregate
principal balance equal to the Initial Certificate Balance of such Class C
Certificates, and the Class D Certificates, in an aggregate principal balance
equal to the Initial Certificate Balance of such Class D Certificates, to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by the chairman of the board, the
president, any executive vice president, any vice president, the secretary, any
assistant secretary, the treasurer or any assistant 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.
<PAGE>
(b) Each Class C Certificate and Class D Certificate shall bear a legend to the
following effect unless determined otherwise by the Administrator (as certified
to the Owner Trustee in an Officer?s Certificate) and the Owner Trustee
consistent with applicable law:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E 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 C 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 D 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
Certificate, the prospective transferee of such Certificate shall be required to
represent in writing to the Owner Trustee, the Certificate Registrar and the
Initial Purchaser the following, unless determined otherwise by the
Administrator (as certified to the Owner Trustee in an Officer?s Certificate):
(i) It understands that no subsequent Transfer of the Certificates is
permitted unless it causes its proposed transferee to provide to the
Trust, the Certificate Registrar and the Initial Purchaser a letter
substantially in the form of Exhibit C or Exhibit D hereof (with such
changes therein as may be approved by the Depositor), as applicable, or
such other written statement as the Depositor shall prescribe.
(ii) It is either:
(A) not, and each account (if any) for which it is purchasing
the Certificates is not (1) an employee benefit plan, as
defined in Section 3(3) of ERISA, that is subject to Title I
of ERISA, (2) a plan described in Section 4975(e)(1) of the
Code that is subject to Section 4975 of the Code, (3) a
governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, State or local law which is, to a
material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (4) an entity whose
underlying assets include plan assets by reason of a 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
Certificates are eligible for exemptive relief under Sections
(I) and (III) of Prohibited Transaction Class Exemption 95-60,
and (3) the purchaser agrees that if, after the purchaser?s
initial acquisition of the Certificates, at any time during
any calendar quarter 25% or more of the assets of such general
account (as reasonably determined by it no less frequently
than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and
no exemption or exception from the prohibited transaction
rules applies to the continued holding of the Certificates
under Section 401(c) of ERISA and the final regulations
thereunder or under an exemption or regulation issued by the
United States Department of Labor under ERISA, it will dispose
of all Certificates then held in its general account by the
end of the next following calendar quarter.
(iii) It is a person who is (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (c) an estate
the income of which is includible in gross income for United States
tax purposes, regardless of its source, (D) a trust if a U.S. court is
able to exercise primary supervision over the administration of
such trust and one or more persons described in clause (A), (B), (C)
or (E) of this paragraph (iii) has the authority to control all
substantial decisions of the trust or (E) a person not described in
clauses (A) through (D) of this paragraph (iii) whose ownership of the
Certificates is effectively connected with such 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 Certificate (or any
interest therein) in contravention of any of the restrictions and
conditions contained in this Section will be a Void Transfer, and the
purported transferee in a Void Transfer will not be recognized by the
Trust or any other person as a Certificateholder for any purpose.
(c) By acceptance of any Certificate, the Certificateholder thereof specifically
agrees with and represents to the Depositor, the Trust and the Certificate
Registrar, that no Transfer of such Certificate shall be made unless the
registration requirements of the Securities Act and any applicable State
securities laws are complied with, or such Transfer is exempt from the
registration requirements under the Securities Act because the Transfer
satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A under the Securities Act
("Rule 144A"), to a transferee who the transferor reasonably believes
is a Qualified Institutional Buyer that is purchasing for its own
account or for the account of a Qualified Institutional Buyer and to
whom notice is given that such Transfer is being made in reliance upon
Rule 144A under the Securities Act and (x) the transferor executes and
delivers to the Trust and the Certificate Registrar, a Rule 144A
transferor certificate substantially in the form attached as Exhibit E
and (y) the transferee executes and delivers to the Trust and the
Certificate Registrar an investment letter substantially in the form
attached as Exhibit C;
(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 D.
(d) The Depositor shall make available to the prospective transferor and
transferee of a Certificate information requested to satisfy the requirements of
paragraph (d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A
Information shall include any or all of the following items requested by the
prospective transferee:
(i) the private placement memorandum, if any, relating to the Certificates,
and any amendments or supplements thereto;
(ii) each statement delivered to Certificateholders pursuant to Section
5.2(b) on each Distribution Date
preceding such request; and
(iii) such other information as is reasonably available to the Owner Trustee
in order to comply with requests for information pursuant to Rule 144A
under the Securities Act.
None of the Depositor, the Certificate Registrar or the Owner
Trustee is under an obligation to register any Certificate under the Securities
Act or any other securities law.
(e) Upon surrender for registration of Transfer of any Certificate at the office
or agency maintained pursuant to Section 3.9 and upon compliance with any
provisions of this Agreement relating to such Transfer, the Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
Class and aggregate amount dated the date of authentication by the Owner Trustee
or any authenticating agent. At the option of a Certificateholder, Certificates
may be exchanged for other Certificates of authorized denominations of a like
Class and aggregate amount upon surrender of the Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.9.
Every Certificate presented or surrendered for registration of
Transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar, duly
executed by the Certificateholder or his attorney in writing, with such
signature guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company. Each Certificate surrendered for registration
of Transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of
Transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any Transfer or
exchange of Certificates.
The preceding provisions of this Section 3.5 notwithstanding,
the Owner Trustee shall not make and the Certificate Registrar need not register
any Transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Distribution Date for any payment with respect to the
Certificates.
<PAGE>
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee
shall authenticate and deliver, in exchange for, or in lieu of, any such
mutilated, destroyed, lost or stolen Certificate a new Certificate of like
Class, tenor and denomination. In connection with the issuance of any new
Certificate under this Section 3.6, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 3.6 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 3.7 Persons Deemed Owners of Certificates. Prior to due presentation of
a Certificate for registration of Transfer, the Owner Trustee, the Certificate
Registrar and any Certificate Paying Agent may treat the Person in whose name
any Certificate shall be registered in the Certificate Register as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
5.2 and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any Certificate Paying Agent shall be bound by any
notice to the contrary.
SECTION 3.8 Access to List of Certificateholders? Names and Addresses. The Owner
Trustee shall furnish or cause to be furnished to the Servicer and the
Depositor, or to the Indenture Trustee, within fifteen (15) days after receipt
by the Owner Trustee of a written request therefor from the Servicer or the
Depositor, or the Indenture Trustee, as the case may be, a list, in such form as
the requesting party may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Certificateholders of Certificates evidencing
not less than 25% of the Aggregate Certificate Balance apply in writing to the
Owner Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then the
Owner Trustee shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed not to hold any of the
Depositor, the Certificate Registrar or the Owner Trustee accountable by reason
of the disclosure of its name and address, 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, l01 Barclay Street, Floor 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 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 association (or publicly traded partnership) taxable as a
corporation.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain Matters.
It is the intention of the Depositor and the Certificateholders that the powers
and duties of the Owner Trustee are ministerial and non-ministerial; provided,
however, that any non-ministerial action (including the taking of any legal
action) may only be taken by the Owner Trustee in accordance with this Section
4.1. With respect to the following matters, the Owner Trustee shall not take
action unless, (I) at least thirty (30) days before the taking of such action,
the Owner Trustee shall have notified the Certificateholders and the Rating
Agencies in writing of the proposed action and (II) Certificateholders holding
not less than a majority of the Aggregate Certificate Balance shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice is
given that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any material claim or lawsuit by the Trust (except claims
or lawsuits brought by the Servicer in connection with the collection of the
Receivables) and the settlement of any material action, claim or lawsuit brought
by or against the Trust (except with respect to the aforementioned claims or
lawsuits for collection by the Servicer of the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of Trust
(unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in circumstances
where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in circumstances
where the consent of any Noteholder is not required and such amendment
materially adversely affects the interests of any of the Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing Agreement or
the Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or to add any provision that would not
materially adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a successor Note Registrar,
Note Paying Agent or Indenture Trustee, or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Note Paying Agent or Indenture Trustee or Certificate Registrar of
its obligations under the Indenture or this Agreement, as applicable.
<PAGE>
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters. The
Owner Trustee may not, except upon the occurrence of an Event of Servicing
Termination subsequent to the payment in full of the Notes and in accordance
with the written direction of Certificateholders holding not less than a
majority of the Aggregate Certificate Balance, (a) remove the Servicer under the
Sale and Servicing Agreement pursuant to Article VIII thereof, (b) appoint a
successor Servicer pursuant to Article VIII of the Sale and Servicing Agreement,
(c) remove the Administrator under the Administration Agreement pursuant to
Section 9 thereof or (d) appoint a successor Administrator pursuant to Section 9
of the Administration Agreement.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy. The Owner
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust unless the Notes have been paid in full and
each Certificateholder (other than the Depositor) approves of such commencement
in advance and delivers to the Owner Trustee a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The Certificateholders
shall not direct the Owner Trustee to take or refrain from taking any action if
such action or inaction would be contrary to any obligation of the Trust or the
Owner Trustee under this Agreement or any of the other Basic Documents or would
be contrary to Section 2.3, nor shall the Owner Trustee be obligated to follow
any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any action
that may be taken by the Certificateholders under this Agreement may be taken by
the Certificateholders of Certificates evidencing not less than a majority of
the Aggregate Certificate Balance. Except as expressly provided herein, any
written notice of 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.
<PAGE>
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, each Certificate Distribution Account shall
be under the sole dominion and control of the Owner Trustee. All monies
deposited from time to time in each Certificate Distribution Account pursuant to
the Sale and Servicing Agreement shall be applied as provided in the Basic
Documents. In the event that either Certificate Distribution Account is no
longer to be maintained at the corporate trust department of the Bank, the
Servicer shall, with the Owner Trustee?s assistance as necessary, cause such
Certificate Distribution Account to be moved to a Qualified institution or a
Qualified Trust Institution within ten (10) Business Days (or such longer period
not to exceed thirty (30) calendar days as to which each Rating Agency may
consent). Each Certificate Distribution Account will be established and
maintained pursuant to an account agreement which specifies New York law as the
governing law.
SECTION 5.2 Application of Trust Funds. (a) On each 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:
<PAGE>
(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
(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 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
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the foregoing, the final distribution in
respect of any Certificate (whether on the applicable Final Scheduled
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.
<PAGE>
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 $197,000,000, (ii) Class A-2 Notes in the
aggregate principal amount of $330,500,000, (iii) Class A-3 Notes in the
aggregate principal amount of $995,000,000, (iv) Class A-4 Notes in the
aggregate principal amount of $990,000,000, (v) Class A-5 Notes in the aggregate
principal amount of $162,107,000 and (vi) Class B Notes in the aggregate
principal amount of $99,059,000. 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.
<PAGE>
SECTION 6.2 General Duties. Subject to Section 4.1 hereof, it shall be the duty
of the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Basic
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, subject to the lien of the Indenture and in
accordance with the provisions of this Agreement and the other Basic Documents.
Notwithstanding anything else to the contrary in this Agreement, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator is
required in the Administration Agreement to perform any act or to discharge such
duty of the Owner Trustee or the Trust hereunder or under any other Basic
Document, and the Owner Trustee shall not be held liable for the default or
failure of the Administrator to carry out its obligations under the
Administration Agreement. Except as expressly provided in the Basic Documents,
the Owner Trustee shall have no obligation to administer, service or collect the
Receivables or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Receivables.
SECTION 6.3 Action upon Instruction. (a) Subject to Article IV, and in
accordance with the terms of the Basic Documents, the Certificateholders may, by
written instruction, direct the Owner Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action hereunder or
under any Basic Document if the Owner Trustee shall have reasonably determined,
or shall have been advised by counsel, that such action is likely to result in
liability on the part of the Owner Trustee or is contrary to the terms hereof or
of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of this Agreement or any other
Basic Document, the Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any Person
for such action or inaction.
(d) In the event the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee or the Trust is a party, except as expressly provided
by the terms of this Agreement or in any document or written instruction
received by the Owner Trustee pursuant to Section 6.3; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any lien (other than the lien of the
Indenture) on any part of the Owner Trust Estate that results from actions by,
or claims against, the Owner Trustee that are not related to the ownership or
the administration of the Owner Trust Estate.
SECTION 6.5 No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the other Basic Documents to which the
Trust or the Owner Trust is a party and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 6.3. Neither the
Depositor nor the Certificateholders shall direct the Trustee to take any action
that would violate the provisions of this Section 6.5.
SECTION 6.6 Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section 2.3
or (b) that, to the actual knowledge of the Owner Trustee, would (i) affect the
treatment of the Notes as indebtedness for federal income or Applicable Tax
State income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for federal income or Applicable Tax State income or
franchise tax purposes or (iii) cause the Trust or any portion thereof to be
taxable as an association (or publicly traded partnership) taxable as a
corporation for federal income or Applicable Tax State income or franchise tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.6.
<PAGE>
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
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;
<PAGE>
(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 discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Co-Trustees shall not be answerable for other than
the willful misconduct, bad faith or negligence of either of them in the
performance of any such act.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
<PAGE>
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.
(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.
<PAGE>
(iii) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware State law, governmental rule or
regulation governing the banking or trust powers of the Delaware
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
SECTION 7.4 Reliance; Advice of Counsel. (a) The Co-Trustees may rely
upon, shall be protected in relying upon, and shall incur no liability to anyone
in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Co-Trustees may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Co-Trustees
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the 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 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.
<PAGE>
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
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Co-Trustees may employ in connection
with the exercise and performance of their rights and its duties hereunder. Such
amounts shall be treated for tax purposes as having been contributed to the
Trust by the Depositor and the tax deduction for such amounts shall be allocated
to the Depositor.
SECTION 8.2 Indemnification. The Depositor shall be liable as prime
obligor for, and shall indemnify the Co-Trustees, The Bank of New York and The
Bank of New York (Delaware) and their respective successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Co-Trustees, The Bank of New York and The Bank of New York
(Delaware) or any Indemnified Party in any way relating to or arising out of
this Agreement, the other Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee hereunder; provided that the Depositor shall not be liable for or
required to indemnify an Indemnified Party from and against Expenses arising or
resulting from (i) the Indemnified Party's own willful misconduct, bad faith or
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 7.3 expressly made by the Indemnified Party. The indemnities
contained in this Section 8.2 shall survive the resignation or termination of
the Co-Trustees or the termination of this Agreement. In the event of any claim,
action or proceeding for which indemnity will be sought pursuant to this Section
8.2, the Co-Trustees' choice of legal counsel shall be subject to the approval
of the Depositor, which approval shall not be unreasonably withheld.
SECTION 8.3 Payments to Co-Trustees. Any amounts paid to the
Co-Trustees pursuant to this Article VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION
SECTION 9.1 Termination of Trust Agreement. (a) This Agreement (other
than the provisions of Article VIII) shall terminate and be of no further force
or effect and the Trust shall wind up and dissolve, upon the earlier of (i) the
maturity or other liquidation of the last remaining Receivable and the
disposition of any amounts received upon such maturity or liquidation and (ii)
the payment to the Noteholders and the Certificateholders of all amounts
required to be paid to them pursuant to the terms of the Indenture, the Sale and
Servicing Agreement and Article V. Any Insolvency Event, liquidation,
dissolution, death or incapacity with respect to any Certificateholder, shall
neither (x) operate to terminate this Agreement or the Trust, nor (y) entitle
such Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Owner Trust Estate nor (z) otherwise affect
the rights, obligations and liabilities of the parties hereto. Upon dissolution
of the Trust, the Owner Trustee shall wind up the business and affairs of the
Trust as required by Section 3808 of the Business Trust Statute.
(b) Neither the Depositor nor any Certificateholder shall be entitled to
revoke or terminate the Trust.
<PAGE>
(c) Notice of any termination of the Trust, specifying the Distribution Date
upon which the Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and cancellation,
shall be given by the Owner Trustee by letter to Certificateholders mailed
within five (5) Business Days of receipt of notice of such termination from the
Servicer, stating (i) the Distribution Date upon or with respect to which final
payment of the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein designated,
(ii) the amount of any such final payment (after reservation of sums sufficient
to pay all claims and obligations, if any, known to the Owner Trustee and
payable by the Trust) and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Certificate
Paying Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Certificate
Paying Agent at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Certificate Paying Agent
shall cause to be distributed to Certificateholders amounts distributable on
such Distribution Date pursuant to Section 5.2. Upon the satisfaction and
discharge of the Indenture, and receipt of a certificate from the Indenture
Trustee stating that all Noteholders have been paid in full and that the
Indenture Trustee is aware of no claims remaining against the Trust in respect
of the Indenture and the Notes, the Owner Trustee, in the absence of actual
knowledge of any other claim against the Trust, shall be deemed to have made
reasonable provision to pay all claims and obligations (including conditional,
contingent or unmatured obligations) for purposes of Section 3808(e) of the
Business Trust Statute.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six (6) months after the
date specified in the above mentioned written notice, the Owner Trustee shall
give a second written notice to the remaining Certificateholders to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Subject to applicable escheat laws, any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(c) of the Business Trust Statute.
SECTION 9.2 Prepayment of Certificates. (a) The Certificates shall be
prepaid in whole, but not in part, at the direction of the Servicer pursuant to
Section 9.1 of the Sale and Servicing Agreement, on any Distribution Date on
which the Servicer exercises its option to purchase the assets of the Trust
pursuant to said Section 9.1, and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay the unpaid principal
amount of the Notes and the Aggregate Certificate Balance plus accrued and
unpaid interest (including any overdue interest) thereon. The Servicer shall
furnish the Rating Agencies and the Owner Trustee notice of such prepayment. If
the Certificates are to be prepaid pursuant to this Section 9.2(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 9.2(a) shall be given by the Owner
Trustee by first-class mail, postage prepaid, or by facsimile mailed or
transmitted immediately following receipt of notice from the Trust or Servicer
pursuant to Section 9.2(a), but not later than ten (10) days prior to the
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
<PAGE>
(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 9.2(b), the
Certificates shall on the Prepayment Date be paid by the Trust at the Prepayment
Price and (unless the Trust shall default in the payment of the Prepayment
Price) no interest shall accrue on the Prepayment Price for any period after the
date to which accrued interest is calculated for purposes of calculating the
Prepayment Price. Following payment in full of the Prepayment Price, this
Agreement and the Trust shall terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee and Delaware
Trustee. (a) The Owner Trustee shall at all times (i) be authorized to exercise
corporate trust powers; (ii) have a combined capital and surplus of at least
$50,000,000 and shall be subject to supervision or examination by federal or
state authorities; and (iii) shall have (or shall have a parent that has) a
long-term debt rating of investment grade by each of the Rating Agencies or be
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the 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.
<PAGE>
(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. (a) 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 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.
(b) 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.
(c) Any resignation or removal of a Co-Trustee and appointment of a successor
Co-Trustee or Co-Trustees pursuant to any of the provisions of this Section 10.2
shall not become effective until acceptance of appointment by the successor
Co-Trustee or Co-Trustees pursuant to Section 10.3, payment of all fees and
expenses owed to the outgoing Co-Trustee or Co-Trustees and the filing of a
certificate of amendment to the Certificate of Trust if required by the Business
Trust Statute. The Administrator shall provide notice of such resignation or
removal of the Co-Trustee or Co-Trustees to the Certificateholders, the
Indenture Trustee, the Noteholders, any remaining Co-Trustee and each of the
Rating Agencies.
SECTION 10.3 Successor Owner Trustee or Delaware Trustee. (a) 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.
(b) 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.
<PAGE>
(c) 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 De1aware Trustee, the successor Owner Trustee or Delaware
Trustee shall cause such notice to be mailed at the expense of the
Administrator.
(d) 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. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person, in such capacity, such title to the Owner
Trust Estate, or any part thereof, and, subject to the other provisions of this
Section 10.5, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. No co-trustee or separate trustee under
this Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article X. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a
copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the Owner Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 10.6 Compliance with Business Trust Statute. Notwithstanding
anything herein to the contrary, the Trust shall at all times have at least one
trustee which meets the requirements of Section 3807(a) of the Business Trust
Statute.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement inconsistent with any other provision of this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement; provided,
however, that such action shall not, as evidenced by an opinion of Counsel
satisfactory to the Owner Trustee and the Indenture Trustee, adversely affect in
any material respect the interests of any Noteholder or Certificateholder; and
provided further that an Opinion of Counsel shall be furnished to the Indenture
Trustee and the Owner Trustee to the effect that such amendment (A) will not
materially adversely affect the federal or any Applicable Tax State income or
franchise taxation of any outstanding Note or Certificate, or any Noteholder or
Certificateholder and (B) will not cause the Trust to be taxable as a
corporation for federal or any Applicable Tax State income or franchise tax
purposes. In addition, this Agreement may be amended by the Depositor and the
Owner Trustee, with prior notice to the Rating Agencies, without the consent of
any of the Noteholders or the Certificateholders, in connection with the Class C
Certificates under the Securities Act, in order to facilitate such registration,
including with respect to the modification of the restrictions applicable to the
transfer of the Class C Certificates and modification of the legend set forth on
the form of the Class C Certificates.
(b) This Agreement may also be amended from time to time by the Depositor, the
Owner Trustee and the Trust, with prior written notice to the Rating Agencies,
with the consent of (i) the Indenture Trustee, to the extent that its rights or
obligations would be affected by such amendment, (ii) the Noteholders of Notes
evidencing not less than a majority of the principal amount of the Notes
Outstanding and (iii) the Certificateholders of Certificates evidencing not less
than a majority of the Aggregate Certificate Balance, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments on
Receivables or distributions that are required to be made for the benefit of the
Noteholders or the Certificateholders, or (ii) reduce the aforesaid percentage
of the principal amount of the Notes Outstanding and the Aggregate Certificate
Balance required to consent to any such amendment, without the consent of all
the Noteholders and Certificateholders affected thereby; 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 written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
<PAGE>
(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 Trustees shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Trust is a party, the Owner
Trustee shall be entitled to receive and conclusively rely upon an opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Basic Documents and that all conditions precedent in the Basic Documents for the
execution and delivery thereof by the Trust or the Owner Trustee, as the case
may be, have been satisfied.
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their beneficial interests therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their beneficial interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
<PAGE>
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.
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, 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.
<PAGE>
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:
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Name:
Title:
THE BANK OF NEW YORK
as Owner Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF CLASS C CERTIFICATE
NUMBER $56,605,000
R-[ ] CUSIP No. 34527R EB 5
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF
ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (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 E 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 C 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 D TO THE
TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE
CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST AND THE
INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR
(4) TO THE DEPOSITOR, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE
UNITED STATES.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST
AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS C 7.89% 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 2000-C (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 $56,605,000 and bear interest at a rate of 7.89% per annum (the
"Class C Rate").
The Trust was created pursuant to an Amended and Restated
Trust Agreement, dated as of June 1, 2000 (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 7.89% Asset Backed Certificates" (herein called the
"Class C Certificates") which, together with the Certificates designated as
"Class D 9.00% 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 June 1, 2000 (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
6.621% Asset Backed Notes", "Class A-2 6.822% Asset Backed Notes", "Class A-3
7.13% Asset Backed Notes", "Class A-4 7.24% Asset Backed Notes", "Class A-5
7.26% Asset Backed Notes" and "Class B 7.50% 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 Actuarial Receivables, all monies due thereunder on or after the
Cutoff Date and, with respect to Simple Interest Receivables, all monies due or
received thereunder on or after the Cutoff Date; (iii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Trust in the Financed Vehicles; (iv) rights to proceeds
from claims on certain physical damage, credit life, credit disability or other
insurance policies, if any, covering Financed Vehicles or Obligors; (v) Dealer
Recourse; (vi) all of the Seller's rights to the Receivable Files; (vii) such
amounts as from time to time may be held in one or more accounts maintained
pursuant to the Sale and Servicing Agreement, dated as of June 1, 2000 (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 in July 2000, 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, no distributions of principal or interest will
be made on the Certificates until all principal and interest on the Notes has
been paid in full.
The holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take no
action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not, until after the Notes
have been paid in full, institute against the Depositor, the General Partner or
the Trust, or join in any institution against the Depositor, the General Partner
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made as provided in
the Trust Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for the purpose by the Owner Trustee in New York, New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
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.
<PAGE>
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 2000-C
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as
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: June 22, 2000
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Owner Trustee
By:_______________
Authorized Officer
<PAGE>
[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.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Owner Trustee with the
consent of the Noteholders and the Certificateholders evidencing not less than a
majority of the principal amount of the Notes Outstanding and the Aggregate
Certificate Balance, respectively. Any such consent by the Certificateholder of
this Certificate shall be conclusive and binding on such Certificateholder and
on all future Certificateholders of this Certificate and of any Certificate
issued upon the registration of Transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of any of the Noteholders or the
Certificateholders.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the Transfer of the Certificates are registrable
in the Certificate Register upon surrender of this Certificate for registration
of Transfer at the offices or agencies maintained by The Bank of New York in its
capacity as Certificate Registrar, or by any successor Certificate Registrar, in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
<PAGE>
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 (including without limitation,
for purposes of this clause (v), an insurance company general account, but
excluding any entity registered under the Investment Company Act of 1940, as
amended); or (b) an insurance company acting on behalf of a general account and
(i) on the date of purchase less than 25% 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).
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.
<PAGE>
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.
<PAGE>
EXHIBIT B
FORM OF CLASS D CERTIFICATE
NUMBER $56,605,000
R-[ ] CUSIP No. 34527R EC 3
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 E 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 C 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 D TO THE
TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE
CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST AND THE
INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR
(4) TO THE DEPOSITOR, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE
UNITED STATES.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST
AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS D 9.00% 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 2000-C (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 $56,605,000 and bear interest at a rate of 9.00% per annum (the
"Class D Rate").
The Trust was created pursuant to an Amended and Restated
Trust Agreement, dated as of June 1, 2000 (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 9. 00% Asset Backed Certificates" (herein called the
"Class D Certificates") which, together with the Certificates designated as
"Class C 7.89% 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 June 1, 2000 (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
6.621% Asset Backed Notes", "Class A-2 6.822% Asset Backed Notes", "Class A-3
7.13% Asset Backed Notes", "Class A-4 7.24% Asset Backed Notes", "Class A-5
7.26% Asset Backed Notes" and "Class B 7.50% 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 Actuarial Receivables, all monies due thereunder on or after the
Cutoff Date and, with respect to Simple Interest Receivables, all monies due or
received thereunder on or after the Cutoff Date; (iii) the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of the Trust in the Financed Vehicles; (iv) rights to proceeds
from claims on certain physical damage, credit life, credit disability or other
insurance policies, if any, covering Financed Vehicles or Obligors; (v) Dealer
Recourse; (vi) all of the Seller's rights to the Receivable Files; (vii) such
amounts as from time to time may be held in one or more accounts maintained
pursuant to the Sale and Servicing Agreement, dated as of June 1, 2000 (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 in July 2000, 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, no distributions of principal or interest will be
made on the Certificates until all principal and interest on the Notes has been
paid in full.
The holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders and the Class C Certificateholders
as described in the Sale and Servicing Agreement, the Indenture and the Trust
Agreement.
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be treated
as a partnership and the Certificateholders (including the Depositor) will be
treated as partners in that partnership. The Depositor and the other
Certificateholders by acceptance of a Certificate agree to treat, and to take no
action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate,
covenants and agrees that such Certificateholder will not, until after the Notes
have been paid in full, institute against the Depositor, the General Partner or
the Trust, or join in any institution against the Depositor, the General Partner
or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made as provided in
the Trust Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for the purpose by the Owner Trustee in New York, New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
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.
<PAGE>
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 2000-C
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: June 22, 2000
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Owner Trustee
By:___________________
Authorized Officer
<PAGE>
[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 a form of the Trust
Agreement as an exhibit thereto, has been filed with the Securities and Exchange
Commission with respect to the Class A-3 Notes, the Class A-4 Notes, the Class
A-5 Notes and the Class B Notes.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor and the Owner Trustee with the
consent of the Noteholders and the Certificateholders evidencing not less than a
majority of the principal amount of the Notes Outstanding and the Aggregate
Certificate Balance, respectively. Any such consent by the Certificateholder of
this Certificate shall be conclusive and binding on such Certificateholder and
on all future Certificateholders of this Certificate and of any Certificate
issued upon the registration of Transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Trust Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of any of the Noteholders or the
Certificateholders.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the Transfer of the Certificates are registrable
in the Certificate Register upon surrender of this Certificate for registration
of Transfer at the offices or agencies maintained by The Bank of New York in its
capacity as Certificate Registrar, or by any successor Certificate Registrar, in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
The Certificates are issuable as registered Certificates
without coupons in denominations of at least $20,000 and in integral multiples
of $1,000 in excess thereof. Certificates are exchangeable for new Certificates
of like Class and authorized denominations evidencing the same aggregate
denomination, as requested by the Certificateholder surrendering the same. No
service charge will be made for any such registration of Transfer or exchange,
but the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any agent of
the Owner Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Class D Certificates may be acquired only by an entity
that is either: (a) not, and each account (if any) for which it is purchasing
the Class D Certificates is not (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code") that is
subject to Section 4975 of the Code, (iii) a governmental plan, as defined in
Section 3(32) of ERISA, subject to any federal, State or local law which is, to
a material extent, similar to the provisions of Section 406 of ERISA or Section
4975 of the Code, (iv) an entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under ERISA) or (v) a
person investing "plan assets" of any such plan (including without limitation,
for purposes of this clause (v), an insurance company general account, but
excluding any entity registered under the Investment Company Act of 1940, as
amended); or (b) an insurance company acting on behalf of a general account and
(i) on the date of purchase less than 25% of the assets of such general account
(as reasonably determined by it) constitute "plan assets" for purposes of Title
I of ERISA and Section 4975 of the Code, (ii) the purchase and holding of such
Class D Certificates are eligible for exemptive relief under Sections (I) and
(III) of Prohibited Transaction Class Exemption 95-60, and (iii) the purchaser
agrees that if, after the purchaser's initial acquisition of the Class D
Certificates, at any time during any calendar quarter 25% or more of the assets
of such general account (as reasonably determined by it no less frequently than
each calendar quarter) constitute "plan assets" for purposes of Title I of ERISA
or Section 4975 of the Code and no exemption or exception from the prohibited
transaction rules applies to the continued holding of the Class D Certificates
under Section 401(c) of ERISA and the final regulations thereunder or under an
exemption or regulation issued by the United States Department of Labor under
ERISA, it will dispose of all Class D Certificates then held in its general
account by the end of the next following calendar quarter.
In addition, the Certificates may not be acquired by or on
behalf of a Person other than (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the United
States or any political subdivision thereof, (C) an estate the income of which
is includible in gross income for United States tax purposes, regardless of its
source, (D) a trust if a U.S. court is able to exercise primary supervision over
the administration of such trust and one or more Persons meeting the conditions
of this paragraph has the authority to control all substantial decisions of the
trust or (E) a Person not described in clauses (A) through (D) above whose
ownership of the Certificates is effectively connected with such Person's
conduct of a trade or business within the United States (within the meaning of
the Code) and who provides the Owner Trustee and the Depositor with an IRS Form
4224 (and such other certifications, representations, or opinions of counsel as
may be requested by the Owner Trustee or the Depositor).
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate (i) upon the maturity or
other liquidation of the last remaining Receivable and the disposition of any
amounts received upon such maturity or liquidation or (ii) upon the payment to
the Noteholders 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.
<PAGE>
B-4
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
appears upon the face of the within Certificate in every particular, without it
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.
<PAGE>
EXHIBIT C
FORM OF INVESTMENT LETTERQUALIFIED INSTITUTIONAL BUYER
[Date]
Ford Credit Auto Owner Trust 2000-C
as Issuer
The Bank of New York
as Owner Trustee and
Certificate Registrar
101 Barclay Street
New York, New York 10286
Re: Ford Credit Auto Owner Trust 2000-C
[Class C 7.89% Asset Backed Certificates]
[Class D 9.00% Asset Backed Certificates]
Ladies and Gentlemen:
In connection with our proposed purchase of the [Class C 7.89% Asset
Backed Certificates] [Class D 9.00% Asset Backed Certificates] (the
"Certificates") of Ford Credit Auto Owner Trust 2000-C (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 Certificates and under the Securities Act
of 1933, as amended (the "Securities Act").
2. We understand that no subsequent Transfer of the Certificates is
permitted unless we cause our proposed transferee to provide to the Issuer, the
Certificate Registrar and the Initial Purchaser a letter substantially in the
form of this letter or Exhibit D to the Trust Agreement, as applicable, or such
other written statement as the Depositor shall prescribe.
3. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the Certificates
for our own account or for a single account (which is a QIB) as to which we
exercise sole investment discretion.
4. We are either:
(a) not, and each account (if any) for which we are purchasing
the Certificates is not (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to
Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended (the "Code")
that is subject to Section 4975 of the Code, (iii) a
governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a
material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (iv) an entity whose
underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. Section 2510.3-101 or otherwise
under ERISA) or (v) a person investing "plan assets" of any
such plan (including without limitation, for purposes of this
clause (v), an insurance company general account, but
excluding an entity registered under the Investment Company
Act of 1940, as amended), or
(b) an insurance company acting on behalf of a general account
and (i) on the date hereof less than 25% of the assets of such
general account (as reasonably determined by us) constitute
"plan assets" for purposes of Title I of ERISA and Section
4975 of the Code, (ii) the purchase and holding of such
Certificates are eligible for exemptive relief under Sections
(I) and (III) of Prohibited Transaction Class Exemption 95-60,
and (iii) the undersigned agrees that if, after the
undersigned's initial acquisition of the Certificates, at any
time during any calendar quarter 25% or more of the assets of
such general account (as reasonably determined by us no less
frequently than each calendar quarter) constitute "plan
assets" for purposes of Title I of ERISA or Section 4975 of
the Code and no exemption or exception from the prohibited
transaction rules applies to the continued holding of the
Certificates under Section 401(c) of ERISA and the final
regulations thereunder or under an exemption or regulation
issued by the DOL under ERISA, we will dispose of all
Certificates then held in our general account by the end of
the next following calendar quarter.
5. We are a person who is (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is includible in gross income for United States tax purposes,
regardless of its source, (iv) a trust if a U.S. court is able to exercise
primary supervision over the administration of such trust and one or more
persons described in clauses (i) to (iii) above or clause (v) below has the
authority to control all substantial decisions of the trust or (v) a person not
described in clauses (i) to (iv) above whose ownership of the Certificates is
effectively connected with such person's conduct of a trade or business within
the United States (within the meaning of the Code) and who provides the Issuer
and the Depositor with a Form 4224 (and such other certifications,
representations, or opinions of counsel as may be requested by the Issuer or the
Depositor).
6. We understand that any purported Transfer of any Certificate (or any
interest therein) in contravention of the restrictions and conditions above will
be null and void (each, a "Void Transfer"), and the purported transferee in a
Void Transfer will not be recognized by the Issuer or any other person as a
Certificateholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
<PAGE>
EXHIBIT D
FORM OF INVESTMENT LETTER
INSTITUTIONAL ACCREDITED INVESTOR
[Date]
Ford Credit Auto Owner Trust 2000-C
as Issuer
The Bank of New York
as Owner Trustee and
Certificate Registrar
101 Barclay Street
New York, New York 10286
Re: Ford Credit Auto Owner Trust 2000-C
[Class C 7.89% Asset Backed Certificates]
[Class D 9.00% Asset Backed Certificates]
Ladies and Gentlemen:
In connection with our proposed purchase of the [Class C 7.89% Asset
Backed Certificates] [Class D 9.00% Asset Backed Certificates] (the
"Certificates") of Ford Credit Auto Owner Trust 2000-C (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 C to the Trust
Agreement, as applicable, or such other written statement as the
Depositor shall prescribe.
<PAGE>
3. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the
Certificates for our own account or for a single account (which is a
QIB) as to which we exercise sole investment discretion.
4. We are either:
(a) not, and each account (if any) for which we are purchasing
the Certificates is not (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to
Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended (the "Code")
that is subject to Section 4975 of the Code, (iii) a
governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a
material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (iv) an entity whose
underlying assets include plan assets by reason of a plan's
investment in the entity (within the meaning of Department of
Labor Regulation 29 C.F.R. Section 2510.3-101 or otherwise
under ERISA) or (v) a person investing "plan assets" of any
such plan (including without limitation, for purposes of this
clause (v), an insurance company general account, but
excluding an entity registered under the Investment Company
Act of 1940, as amended), or
(b) an insurance company acting on behalf of a general account
and (i) on the date hereof less than 25% of the assets of such
general account (as reasonably determined by us) constitute
"plan assets" for purposes of Title I of ERISA and Section
4975 of the Code, (ii) the purchase and holding of such
Certificates are eligible for exemptive relief under Sections
(I) and (III) of Prohibited Transaction Class Exemption 95-60,
and (iii) the undersigned agrees that if, after the
undersigned's initial acquisition of the Certificates, at any
time during any calendar quarter 25% or more of the assets of
such general account (as reasonably determined by us no less
frequently than each calendar quarter) constitute "plan
assets" for purposes of Title I of ERISA or Section 4975 of
the Code and no exemption or exception from the prohibited
transaction rules applies to the continued holding of the
Certificates under Section 401(c) of ERISA and the final
regulations thereunder or under an exemption or regulation
issued by the DOL under ERISA, we will dispose of all
Certificates then held in our general account by the end of
the next following calendar quarter.
5. We are a person who is (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the
laws of the United States or any political subdivision thereof, (iii)
an estate the income of which is includible in gross income for United
States tax purposes, regardless of its source, (iv) a trust if a U.S.
court is able to exercise primary supervision over the administration
of such trust and one or more persons described in clauses (i) to (iii)
above or clause (v) below has the authority to control all substantial
decisions of the trust or (v) a person not described in clauses (i) to
(iv) above whose ownership of the Certificates is effectively connected
with such person's conduct of a trade or business within the United
States (within the meaning of the Code) and who provides the Issuer and
the Depositor with a Form 4224 (and such other certifications,
representations, or opinions of counsel as may be requested by the
Issuer or the Depositor).
6. We understand that any purported Transfer of any Certificate (or any
interest therein) in contravention of the restrictions and conditions
above will be null and void (each, a "Void Transfer"), and the
purported transferee in a Void Transfer will not be recognized by the
Issuer or any other person as a Certificateholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
Name:
Title:
Securities To Be Purchased:
$ principal amount of Certificates
EXHIBIT E
FORM OF RULE 144A TRANSFEROR CERTIFICATE
[Date]
The Bank of New York
as Owner Trustee and
Certificate Registrar
101 Barclay Street
New York, New York 10286
Re: Ford Credit Auto Owner Trust 2000-C
[Class C 7.89% Asset Backed Certificates]
[Class D 9.00% Asset Backed Certificates]
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in denomination of
[Class C 7.89% Asset Backed Certificates] [Class D 9.00% Asset Backed
Certificates] (the "Certificates") of Ford Credit Auto Owner Trust 2000-C (the
"Issuer").
The undersigned is the holder of the Certificates and with this notice
hereby deposits with the Owner Trustee $[*] in denomination of Certificates and
requests that Certificates of the same class in the same aggregate denomination
be issued, executed and authenticated and registered to the purchaser on
___________, 200[], as specified in the Trust Agreement dated as of June 1, 2000
relating to the Certificates, as follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
<PAGE>
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the Certificates in a transaction effected in accordance
with the exemption from the registration requirements of the Act provided by
Rule 144A, (iii) if the purchaser has purchased the Certificates for an account
for which it is acting as fiduciary or agent, such account is a qualified
institutional buyer and (iv) the purchaser is acquiring Certificates for its own
account or for an institutional account for which it is acting as fiduciary or
agent.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATES]
By:
Name:
Title:
[*] authorized denomination
<PAGE>
F-6
EXHIBIT F
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
FORD CREDIT AUTO OWNER TRUST 2000-C
This Certificate of Trust of Ford Credit Auto Owner Trust
2000-C (the "Trust"), dated as of June 1, 2000, 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 2000-C.
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), White Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees
of the Trust, have executed this Certificate of Trust as of the date first above
written in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee under a Trust
Agreement dated as of June 1, 2000
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 June 1, 2000
By:
Name:
Title:
<PAGE>
APPENDIX A
Definitions and Usage
