Exhibit 99.1
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[FORD CREDIT AUTO RECEIVABLES CORPORATION]
[FORD CREDIT AUTO RECEIVABLES LLC]
Transferor[s]
[OWNER TRUSTEE]
Owner Trustee
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TRUST AGREEMENT
Dated as of [______ __, 200_]
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FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__]
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Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................................1
Section 1.02. Other Definitional Provisions..........................................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name...................................................................................4
Section 2.02. Office.................................................................................4
Section 2.03. Purpose and Powers.....................................................................4
Section 2.04. Appointment of Owner Trustee...........................................................5
Section 2.05. Initial Capital Contribution of Trust Estate...........................................5
Section 2.06. Declaration of Trust...................................................................5
Section 2.07. Title to Trust Property................................................................5
Section 2.08. Situs of Trust.........................................................................5
Section 2.09. Representations and Warranties of Transferor[s]........................................6
Section 2.10. Liability of Certificateholders........................................................7
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership......................................................................7
Section 3.02. Form of Certificates...................................................................7
Section 3.03. Authentication of Certificates.........................................................8
Section 3.04. Restrictions on Transfer...............................................................8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.......................................8
Section 3.06. Issuance of New Certificates...........................................................8
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Transferor[s] with Respect to Certain Matters.........................10
Section 4.02. Restrictions on Power.................................................................10
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority.....................................................................11
Section 5.02. General Duties........................................................................11
Section 5.03. Action Upon Instruction...............................................................11
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions....................12
Section 5.05. No Action Except Under Specified Documents or Instructions............................12
Section 5.06. Restrictions..........................................................................13
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties.......................................................13
Section 6.02. Furnishing of Documents...............................................................14
Section 6.03. Representations and Warranties........................................................15
Section 6.04. Reliance; Advice of Counsel...........................................................15
Section 6.05. Not Acting in Individual Capacity.....................................................16
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables.......................16
Section 6.07. Owner Trustee May Own Notes...........................................................16
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses.....................................................16
Section 7.02. Indemnification.......................................................................17
Section 7.03. Payments to the Owner Trustee.........................................................17
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement..............................................................17
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee............................................18
Section 9.02. Resignation or Removal of Owner Trustee...............................................18
Section 9.03. Successor Owner Trustee...............................................................19
Section 9.04. Merger or Consolidation of Owner Trustee..............................................19
Section 9.05. Appointment of Co-Trustee or Separate Trustee.........................................20
Section 9.06. Compliance with Delaware Business Trust Statute.......................................21
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments............................................................21
Section 10.02. No Legal Title to Trust Estate in Transferor[s].......................................23
Section 10.03. Limitations on Rights of Others.......................................................23
Section 10.04. Notices...............................................................................23
Section 10.05. Severability..........................................................................23
Section 10.06. Separate Counterparts.................................................................23
Section 10.07. Successors and Assigns................................................................23
Section 10.08. Nonpetition Covenants.................................................................24
Section 10.09. No Recourse...........................................................................24
Section 10.10. Headings..............................................................................24
Section 10.11. Governing Law.........................................................................24
Section 10.12. Transferor Payment Obligation.........................................................24
Section 10.13. Acceptance of Terms of Agreement......................................................25
Section 10.14. Integration of Documents..............................................................25
EXHIBITS
Exhibit A Form of Certificate
TRUST AGREEMENT, dated as of [______ __, 200_], by and between [FORD
CREDIT AUTO RECEIVABLES CORPORATION, a Delaware corporation] [and] [FORD
CREDIT AUTO RECEIVABLES LLC, a Delaware limited liability company], as
Transferor[s], and [OWNER TRUSTEE], a Delaware banking corporation, as Owner
Trustee.
RECITAL
The parties to this Agreement, by executing and delivering this
Agreement, will create Ford Credit Floorplan Master Owner Trust [__] and
provide for, among other things, the issuance of the Certificates.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows.
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01. Definitions
Whenever used in this Agreement, the following words and phrases have
the following meanings, and the definitions of such terms are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
"Administration Agreement" means the Administration Agreement, dated
as of [______ __, 200_], between the Issuer and the Administrator.
"Administrator" means Ford Credit, in its capacity as administrator
under the Administration Agreement and its successors and permitted assigns in
such capacity.
"Agreement" means this Trust Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Certificateholder" or "Holder" means, with respect to the Transferor
Interest, a Person in whose name the Certificates are registered or a Person
in whose name ownership of the uncertificated interest in the Transferor
Interest is recorded in the books and records of the Owner Trustee.
"Certificates" means the Transferor['s][s'] uncertificated interest
in the Transferor Interest; provided, however, if [the][any] Transferor elects
to evidence its interest in the Transferor Interest in certificated form
pursuant to Section 3.06, the certificates will be executed by [the][such]
Transferor and authenticated by or on behalf of the Owner Trustee,
substantially in the form of Exhibit A.
"Certificate Supplement" has the meaning specified in Section
3.06(b).
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at
[______________________]; or such other address as the Owner Trustee may
designate by notice to the Transferor[s], or the principal corporate trust
office of any successor Owner Trustee (the address of which the successor
Owner Trustee will notify the Transferor[s]).
"Expenses" has the meaning specified in Section 7.02.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation.
"Foreclosure Remedy" has the meaning specified in the Indenture.
"Indemnified Parties" has the meaning specified in Section 7.02.
"Indenture" means the Indenture, dated as of [______ __, 200_],
between the Issuer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Trustee" means [Indenture Trustee], not in its individual
capacity but solely as Indenture Trustee under the Indenture, and any
successor Indenture Trustee under the Indenture.
"Issuer" means Ford Credit Floorplan Master Owner Trust [__], the
trust created by this Agreement acting by and through the Owner Trustee.
"Owner Trustee" means [Owner Trustee], a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement (unless otherwise specified herein), and any successor Owner
Trustee hereunder.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Servicer" means Ford Credit, in its capacity as servicer under the
Transfer and Servicing Agreement[s] and its successors and permitted assigns
in such capacity.
"Supplemental Certificate" has the meaning specified in subsection
3.06(b).
"Transfer and Servicing Agreement[s]" means the Transfer and
Servicing Agreement[s], dated as of [______ __, 200_], among the Issuer, the
[applicable] Transferor[s] and the Servicer, as the same may be amended,
supplemented or otherwise modified from time to time.
"Transferor" means [Ford Credit Auto Receivables Corporation, a
Delaware corporation] [and][Ford Credit Auto Receivables LLC, a Delaware
limited liability company], in [its][their] capacity as transferor[s]
hereunder and [its][their] successors and permitted assigns in such capacity.
"Transferor Interest" has the meaning specified in subsection
3.06(a).
"Trust Company" means [Owner Trustee], in its individual capacity.
"Trust Estate" means all right, title and interest of the Owner
Trustee in and to the property and rights assigned to the Owner Trustee
pursuant to Section 2.05 hereof and Section 2.01 of the Transfer and Servicing
Agreement[s], all monies, securities, instruments and other property on
deposit from time to time in the Collection Account and the Series Accounts
and all other property of the Issuer from time to time, including any rights
of the Owner Trustee pursuant to the Transfer and Servicing Agreement[s].
"Trust Termination Date" has the meaning specified in Section 8.01.
Section 1.02. Other Definitional Provisions.
(a) All terms used herein and not otherwise defined herein have
meanings ascribed to them in the Transfer and Servicing Agreement[s] or the
Indenture, as applicable, and, with respect to any Series, the related
Indenture Supplement.
(b) All terms defined in this Agreement have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, have the respective meanings
given to them under generally accepted accounting principles or regulatory
accounting principles, as applicable and as in effect on the date of this
Agreement. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting principles or
regulatory accounting principles in the United States, the definitions
contained in this Agreement or in any such certificate or other document
control.
(d) Any reference to each Rating Agency only applies to any specific
rating agency if such rating agency is then rating any outstanding Series.
(e) Unless otherwise specified, references to any dollar amount on
any particular date means such amount at the close of business on such day.
(f) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not
to any particular provision of this Agreement. References to any subsection,
Section, Schedule or Exhibit are references to subsections, Sections,
Schedules and Exhibits in or to this Agreement, unless otherwise specified.
The term "including" means "including without limitation."
ARTICLE II
ORGANIZATION
Section 2.01. Name.
The trust created hereby, referred to herein as the Issuer, is to be
known as "Ford Credit Floorplan Master Owner Trust [__]," in which name the
Owner Trustee may conduct the business of the Issuer, make and execute
contracts and other instruments on behalf of the Issuer and ▇▇▇ and be sued on
behalf of the Issuer.
Section 2.02. Office.
The office of the Issuer will be in care of the Owner Trustee at the
Corporate Trust Office or at such other address in the State of Delaware as
the Owner Trustee may designate by written notice to the Indenture Trustee and
the Transferor[s].
Section 2.03. Purpose and Powers.
The purpose of the Issuer is, and the Issuer has 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 Transferor[s];
(ii) to pay the organizational, start-up and transactional
expenses of the Issuer, to acquire the Receivables and to pay the
Transferor[s] the amounts owed pursuant to Section 2.01 of the
Transfer and Servicing Agreement[s];
(iii) to assign, grant, pledge and mortgage the Trust Estate
pursuant to the Indenture and to hold, manage and distribute to the
Transferor[s] or the Noteholders pursuant to the terms of this
Agreement and the Transaction Documents any portion of the Trust
Estate released from the lien of, and remitted to the Issuer
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) 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
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as are required in connection with
conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the Transferor[s].
The Issuer may 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 Transaction Documents.
Section 2.04. Appointment of Owner Trustee.
The Transferor[s] hereby appoint[s] the Owner Trustee as trustee of
the Issuer effective as of the date hereof, to have all the rights, powers and
duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate.
The Transferor[s] hereby assign[s], transfer[s], convey[s] and set[s]
over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Transferor[s], as of the
date hereof, of the foregoing contribution, which constitutes the initial
Trust Estate and will be held by the Owner Trustee. The Transferor[s] will pay
organizational expenses of the Issuer as they may arise or will, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust.
The Owner Trustee hereby declares that it will hold the Trust Estate
in trust upon and subject to the conditions set forth herein for the use and
benefit of the Transferor[s], subject to the obligations of the Issuer under
the Transaction Documents to which it is a party. It is the intention of the
parties hereto that (i) the Issuer constitute a statutory business trust under
the laws of the State of Delaware and that this Agreement constitute the
governing instrument of such business trust and (ii) for income and franchise
tax purposes, the Issuer will be treated as a security device and disregarded
as an entity and its assets treated as owned in whole by the Transferor[s].
The parties hereto agree that they will take no action contrary to the
foregoing intention. Effective as of the date hereof, the Owner Trustee has
all rights, powers and duties set forth herein with respect to accomplishing
the purposes of the Issuer. The Owner Trustee has filed the Certificate of
Trust with the Secretary of State of Delaware.
Section 2.07. Title to Trust Property.
Legal title to all the Trust Estate will be vested at all times in
the Issuer as a separate legal entity, except where applicable law in any
jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case it will be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.08. Situs of Trust.
The Issuer will be located and administered in the State of Delaware.
All bank accounts maintained by the Owner Trustee on behalf of the Issuer will
be located in the State of Delaware or the State of New York. The Issuer will
not have any employees in any state other than Delaware; provided, however,
that nothing herein will restrict or prohibit the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by the Issuer only in Delaware or New York, and payments will be made by the
Issuer only from Delaware or New York. The only office of the Issuer will be
at the Corporate Trust Office in Delaware.
Section 2.09. Representations and Warranties of Transferor[s].
[The][Each] Transferor hereby represents and warrants to the Owner
Trustee that:
(a) [The][Such] Transferor is a Delaware [corporation][limited
liability company] duly organized and validly existing in good standing under
the laws of the State of Delaware and has full [corporate][company] power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted, and to execute,
deliver and perform its obligations under this Agreement and any other
document related hereto to which it is a party and to perform its obligations
as contemplated hereby and thereby.
(b) [The][Such] Transferor is duly qualified to do business and is in
good standing (or is exempt from such requirement) in any state required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to [the][such] Transferor, in each jurisdiction where
failure to so qualify or to obtain such licenses and approvals would have a
material adverse effect on its ability to perform its obligations under this
Agreement or any other document related hereto to which [the][such] Transferor
is a party.
(c) The execution and delivery of this Agreement and the consummation
of the transactions provided for in this Agreement and in the other
Transaction Documents to which [the][such] Transferor is a party have been
duly authorized by [the][such] Transferor by all necessary corporate action on
its part and each of this Agreement and the other Transaction Documents to
which [the][such] Transferor is a party will remain, from the time of its
execution, an official record of [the][such] Transferor; [the][such]
Transferor has the power and authority to assign the property to be assigned
to and deposited with the Issuer pursuant to Section 2.05 of this Agreement
and Section 2.01 of the Transfer and Servicing Agreement[s].
(d) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which [the][such]
Transferor is a party or by which it or any of its properties are bound (other
than violations of such indentures, contracts, agreements, mortgages, deeds of
trust or other instruments which, individually or in the aggregate, would not
have a material adverse effect on [the][such] Transferor's ability to perform
its obligations under this Agreement).
(e) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with or violate any Requirements of Law
applicable to [the][such] Transferor.
(f) There are no proceedings pending or, to the best knowledge of
[the][such] Transferor, proceedings threatened or investigations pending or
threatened against [the][such] Transferor before or by any court, regulatory
body, administrative agency, or other tribunal or governmental instrumentality
having jurisdiction over [the][such] Transferor (i) asserting the invalidity
of any of the Transaction Documents to which [the][such] Transferor is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents to which [the][such]
Transferor is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of [the][such] Transferor, would materially and adversely
affect the performance by [the][such] Transferor of its obligations under the
Transaction Documents to which [the][such] Transferor is a party or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of the Transaction Documents to which
[the][such] Transferor is a party.
Section 2.10. Liability of Certificateholders.
The holders of the Certificates and any Supplemental Certificates
will not be personally liable for the debts or other obligations of the Issuer
except to the extent provided otherwise in the Transaction Documents.
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership.
Upon the formation of the Issuer by the contribution pursuant to
Section 2.05, the Transferor[s] will be the sole beneficial owner[s] of the
Issuer.
Section 3.02. Form of Certificates.
(a) [The][Any] Transferor or any Subsequent Transferor may elect at
any time, by written notice to the Owner Trustee, to have its interest in the
Transferor Interest be (i) an uncertificated interest or (ii) evidenced by a
certificate. The Certificate, if certificated, will be issued in registered
form, substantially in the form of Exhibit A, and will, upon issue, be
executed and delivered by [the][such] Transferor to the Owner Trustee for
authentication and redelivery as provided in Section 3.03. If [the][any]
Transferor or any Subsequent Transferor elects to have its interest in the
Transferor Interest be uncertificated, it will deliver to the Owner Trustee
for cancellation any Certificate or Supplemental Certificate, as the case may
be, previously issued and the Owner Trustee will make appropriate entries in
its books and records to evidence such uncertificated interest in the
Transferor Interest. The Owner Trustee will keep with the books and records of
the Issuer a register, in book-entry form, of each Person owning any
uncertificated interest in the Transferor Interest. The Certificate, if in
certificated form, will be a single certificate that initially represents the
entire Transferor Interest.
(b) The Certificates will be executed by manual or facsimile
signature of the Owner Trustee. The Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on behalf of the Issuer, will, when duly
authenticated pursuant to Section 3.03, be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of
them have ceased to be so authorized prior to the authentication and delivery
of the Certificates or did not hold such offices at the date of authentication
and delivery of the Certificates.
Section 3.03. Authentication of Certificates.
On the Closing Date, the Owner Trustee will authenticate and deliver
the Certificate[s], if certificated, upon the written order of [the][any]
Transferor, signed by its chairman of the board, its president, any vice
president, secretary, any assistant treasurer or any authorized signer,
without further corporate action by [the][such] Transferor. No Certificate
will be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by or
on behalf of the Owner Trustee by the manual signature of a duly authorized
signer, and such certificate upon any Certificate will be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. Each Certificate will be dated the date of its
authentication.
Section 3.04. Restrictions on Transfer.
To the fullest extent permitted by applicable law, the Certificates
(or any interest therein) may not be sold, transferred, assigned,
participated, pledged or otherwise disposed of to any Person; provided,
however, that a Certificate (or any interest therein) may be sold,
transferred, assigned, participated, pledged or otherwise disposed of if the
transferor thereof has provided the Owner Trustee and the Indenture Trustee
with a Tax Opinion relating to such sale, transfer, assignment, participation,
pledge or other disposition.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.
If (a) any mutilated Certificate is surrendered to the Owner Trustee,
or the Owner Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Owner
Trustee such security or indemnity as it may require to hold it harmless,
then, in the absence of notice to the Owner Trustee that such Certificate has
been acquired by a protected purchaser, the Owner Trustee on behalf of the
Issuer will execute, and the Owner Trustee will authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate of like tenor (including the same date
of issuance) and denomination. In connection with the issuance of any
replacement Certificate under this Section, the Owner Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other reasonable expenses connected
therewith. Every replacement Certificate issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Certificate will
constitute complete and indefeasible evidence of an ownership interest in the
Issuer, as if originally issued, whether or not the mutilated, destroyed, lost
or stolen Certificate is found at any time.
Section 3.06. Issuance of New Certificates.
(a) Taken together, the Certificates represent the beneficial
ownership interest in the Trust Estate not allocated pursuant to the
Transaction Documents to the Noteholders' Collateral, including the right to
receive Collections with respect to the Receivables and other amounts at the
times and in the amounts specified in any Indenture Supplement to be paid to
the Transferor[s] on behalf of all Holders of the Certificates (the
"Transferor Interest") and the other Trust Assets subject to the lien of the
Indenture; provided, however, that the Certificates will represent a
beneficial interest in the Collection Account, any Series Account or any
Series Enhancement, subject to the lien of the Notes and only as specifically
provided in the Transfer and Servicing Agreement[s], the Indenture or any
Indenture Supplement.
(b) In connection with the issuance of a new Series of Notes, the
designation of a Subsequent Transferor pursuant to Section 2.05(f) of the
Transfer and Servicing Agreement[s] or at any other time, a Transferor may
surrender its certificated or uncertificated Certificate to the Owner Trustee
in exchange for a newly issued certificated or uncertificated Certificate and
a second certificated or uncertificated interest in the Transferor Interest (a
"Supplemental Certificate"), the terms of which will be defined in a
supplement (a "Certificate Supplement") to this Agreement (which Certificate
Supplement will be subject to Section 10.01 to the extent that it amends any
of the terms of this Agreement), to be delivered to or upon the order of the
Transferor (or the Holder of a Supplemental Certificate, in the case of the
transfer and exchange thereof); provided, however, notwithstanding anything
contained herein, any exchange of a certificated Certificate for an
uncertificated Certificate or an uncertificated Certificate for a certificated
Certificate by the Holder of such Certificate will not be subject to the
conditions set forth in clauses (i) through (vi) below. Except as set forth in
the proviso to the immediately preceding sentence, the issuance of any such
Supplemental Certificate will be subject to satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the
Certificate surrender and exchange, the Transferor has given the
Owner Trustee, the Servicer, the Indenture Trustee and each Rating
Agency notice (unless such notice requirement is otherwise waived)
of such Certificate surrender and exchange;
(ii) the Transferor has delivered to the Owner Trustee and the
Indenture Trustee any related Certificate Supplement in form
satisfactory to the Owner Trustee and the Indenture Trustee,
executed by each party hereto (other than the Owner Trustee, the
Indenture Trustee and the Holder of the Supplemental Certificate, if
any);
(iii) such surrender and exchange, will not result in any
Adverse Effect and the Transferor has delivered to the Owner Trustee
and the Indenture Trustee an Officers' Certificate, dated the date
of such surrender and exchange, to the effect that the Transferor
reasonably believes that such surrender and exchange will not, based
on the facts known to such officer at the time of such
certification, have an Adverse Effect;
(iv) the Transferor has delivered to the Owner Trustee and
Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion,
dated the date of such surrender and exchange with respect to such
surrender and exchange; and
(v) the aggregate amount of Principal Receivables [plus the
principal amount of any Pooled Participation Receivables]
theretofore conveyed to the Issuer as of the date of such surrender
and exchange is greater than the Required Pool Balance as of the
date of such surrender and exchange after giving effect to such
surrender and exchange.
(c) Any Supplemental Certificate held by any Person may be
transferred or exchanged only upon the delivery to the Trustee of a Tax
Opinion dated as of the date of such transfer or exchange, as the case may be,
with respect to such transfer or exchange.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Transferor[s] with Respect to Certain
Matters.
With respect to the following matters, unless otherwise instructed by
the Transferor[s], the Owner Trustee will not take action unless at least
thirty (30) days before the taking of such action the Owner Trustee has given
notice to the Transferor[s] of:
(a) the initiation of any claim or lawsuit by the Issuer or the Owner
Trustee (other than an action to collect on the Trust Estate) and the
settlement of any action, claim or lawsuit brought by or against the Issuer or
the Owner Trustee (other than an action to collect on the Trust Estate);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Delaware 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 interest of the Transferor[s];
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Transferor[s]; or
(f) the appointment pursuant to the Indenture of a replacement or
successor Note Registrar or Indenture Trustee, or the consent to the
assignment by the Note Registrar, Administrator or Indenture Trustee of its
obligations under the Indenture.
Section 4.02. Restrictions on Power.
The Owner Trustee will not be required to take or refrain from taking
any action if such action or inaction is contrary to any obligation of the
Owner Trustee under any of the Transaction Documents or contrary to Section
2.03.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority.
The Owner Trustee is authorized and directed to execute and deliver
on behalf of the Issuer the Transaction Documents and each certificate or
other document attached as an exhibit to or contemplated by the Transaction
Documents to which the Owner Trustee is to be a party, or any amendment
thereto or other agreement, in each case, in such form as the Transferor[s]
approve[s] as evidenced conclusively by the Owner Trustee's execution thereof
and the Transferor['s][s'] execution of the related documents. In addition to
the foregoing, the Owner Trustee is authorized, but is not obligated, to take
all actions required of the Owner Trustee pursuant to the Transaction
Documents. The Owner Trustee is further authorized from time to time to take
such action on behalf of the Issuer as is permitted by this Agreement and the
other Transaction Documents and which the Transferor[s] or the Administrator
directs in writing with respect to the Transaction Documents.
Section 5.02. General Duties.
Subject to Section 4.01 hereof, it is 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 Transaction Documents to which
the Issuer is a party and to administer the Issuer in the interest of the
Transferor[s], subject to the Transaction Documents and in accordance with the
provisions of this Agreement. Notwithstanding anything else to the contrary in
this Agreement, the Owner Trustee will be deemed to have discharged its duties
and responsibilities hereunder and under the other Transaction Documents to
the extent the Administrator has agreed in the Administration Agreement to
perform any act or to discharge any duty of the Owner Trustee or the Issuer
hereunder or under any other Transaction Document, and the Owner Trustee will
not be liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement. Except as expressly provided
in the Transaction Documents, the Owner Trustee has 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 5.03. Action Upon Instruction.
(a) The Owner Trustee will not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee
reasonably determines, or is 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 Transaction Document or is otherwise contrary to
law.
(b) 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 Transaction Document, the Owner Trustee will promptly
give notice (in such form as is appropriate under the circumstances) to the
Transferor[s] 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 Transferor[s] received, the Owner Trustee will not
be liable on account of such action to any Person. If the Owner Trustee does
not receive 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 will be under
no duty to, take or refrain from taking such action, not in violation of this
Agreement or the other Transaction Documents, as it deems to be in the best
interest of the Transferor[s], and will have no liability to any Person for
such action or inaction.
(c) If the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other Transaction 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 if 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 is
appropriate under the circumstances) to the Transferor[s] 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 will not be liable, on account of such action or inaction, to
any Person. If the Owner Trustee does not receive 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 will be under no duty to, take or refrain from
taking such action, not in violation of this Agreement or the other
Transaction Documents, as it deems to be in the best interests of the
Transferor[s], and will have no liability to any Person for such action or
inaction.
Section 5.04. No Duties Except as Specified in this Agreement or in
Instructions.
The Owner Trustee has no duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Issuer or the 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 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 5.03; and no implied duties or
obligations are to be read into this Agreement or any other Transaction
Document against the Owner Trustee. The Owner Trustee has no responsibility
for any filing or recording, including 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 Issuer or to record this
Agreement or any other Transaction Document. The Trust Company nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Estate that
result from actions by, or claims against, the Trust Company that are not
related to the ownership or the administration of the Trust Estate or the
transactions contemplated hereby or by the other Transaction Documents.
Section 5.05. No Action Except Under Specified Documents or
Instructions.
The Owner Trustee may not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except (a) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (b) in accordance with the other Transaction
Documents to which the Issuer or the Owner Trustee is a party and (c) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03. The Transferor[s] may not direct the Owner Trustee
to take any action that would violate the provisions of this Section 5.05.
Section 5.06. Restrictions.
The Owner Trustee may not take any action (i) that would violate the
purposes of the Issuer set forth in Section 2.03 or (ii) that, to the actual
knowledge of the Owner Trustee, would result in the Issuer becoming an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. The Transferor[s] may not direct the Owner
Trustee to take action that would violate the provisions of this Section 5.06.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties.
The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts, but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse all monies
actually received by it constituting part of the Trust Estate upon the terms
of this Agreement and the other Transaction Documents. The Owner Trustee will
not be answerable or accountable hereunder or under any other Transaction
Document under any circumstances, except (i) for its own willful misconduct or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.03 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee will not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee will not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or the Transferor[s];
(c) no provision of this Agreement or any other Transaction Document
will require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any other Transaction Document, if the Owner Trustee has
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances will the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes or amounts distributable
on the Certificates;
(e) the Owner Trustee will not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Transferor[s] or for the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate or for or in respect of the
validity or sufficiency of the Transaction Documents, other than the
genuineness of the signature and countersignature of the Owner Trustee on the
certificate of authentication on the Certificates, and the Owner Trustee will
in no event assume or incur any liability, duty, or obligation to any
Noteholder or to the Transferor[s], other than as expressly provided for
herein or expressly agreed to in the other Transaction Documents;
(f) the Owner Trustee will not be liable for the default or
misconduct of the Transferor[s], the Servicer, the Administrator or the
Indenture Trustee under any of the Transaction Documents or otherwise, and the
Owner Trustee will have no obligation or liability to perform the obligations
of the Owner Trustee hereunder or under the other Transaction Documents that
are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Transfer and Servicing Agreement[s];
(g) the Owner Trustee will be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any other Transaction Document, at the request, order or
direction of the Transferor[s], unless the Transferor[s] [has][have] offered
to the Owner Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or any other Transaction
Document is not to be construed as a duty, and the Owner Trustee will not be
answerable for, other than its negligence or willful misconduct in the
performance of, any such act; and
(h) notwithstanding anything contained herein to the contrary, the
Owner Trustee will not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action (i) requires
the registration with, licensing by or the taking of any other similar action
in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) results in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivisions thereof in existence on
the date hereof other than the State of Delaware becoming payable by the Owner
Trustee; or (iii) subjects the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from acts unrelated to the consummation of the transactions by the Owner
Trustee contemplated hereby. The Owner Trustee will be entitled to obtain
advice of counsel (which advice will be an expense of the Transferor[s]) to
determine whether any action required to be taken pursuant to the Agreement
results in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. If said counsel advises the Owner Trustee that such action
will result in such consequences, the Transferor[s] will appoint an additional
trustee pursuant to Section 9.05 hereof to proceed with such action.
Section 6.02. Furnishing of Documents.
The Owner Trustee will furnish to the Transferor[s] and the Indenture
Trustee, promptly upon 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 Transaction
Documents.
Section 6.03. Representations and Warranties.
The Owner Trustee hereby represents and warrants to the Transferor[s]
that:
(a) 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.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee may rely upon, will be protected in relying
upon and will 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 reasonably believed by it to be
genuine and reasonably believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body
and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
the Owner Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and such
certificate will constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
other Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into with any of them,
and the Owner Trustee will not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys are selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee will not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or written
advice of any such counsel, accountants or other such Persons and not contrary
to this Agreement or any other Transaction Document.
Section 6.05. Not Acting in Individual Capacity.
Except as expressly provided in this Article VI, in accepting the
trusts hereby created [____________] acts solely as Owner Trustee hereunder
and not in its individual capacity, and all Persons having any claim against
the Owner Trustee by reason of the transactions contemplated by this Agreement
or any other Transaction Document may look only to the Trust Estate for
payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or
Receivables.
The recitals contained herein and in the Certificates (other than the
genuineness of the signature and counter-signature of the Owner Trustee on the
Certificates and its representations and warranties in Section 6.03) will be
taken as the statements of the Transferor[s], and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Transaction Document or the Certificates (other than the genuineness of the
signature and countersignature of the Owner Trustee on the Certificates), the
Notes, or of any Receivable or related documents. The Owner Trustee will at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of the Receivables or the perfection and priority
of any security interest in the Receivables or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of the Receivables; the existence and contents of the
Receivables on any computer or other record thereof; the validity of the
assignment of the Receivables to the Issuer or of any intervening assignment;
the completeness of the Receivables; the performance or enforcement of the
Receivables; the compliance by the Transferor[s] with any warranty or
representation made under any Transaction Document or in any related document
or the accuracy of any such warranty or representation or any action of the
Administrator, the Servicer or the Indenture Trustee taken in the name of the
Owner Trustee.
Section 6.07. Owner Trustee May Own Notes.
The Owner Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may deal with the Transferor[s], the
Administrator, the Servicer and the Indenture Trustee in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses.
The Trust Company will receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Transferor[s] and the Trust Company, and the Trust Company will be
entitled to be reimbursed by the Transferor[s] for its other reasonable
expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder; provided, however, that the Owner
Trustee's right to enforce such obligation is subject to the provisions of
Section 10.08. Such amounts will be treated for tax purposes as having been
contributed to the Issuer by the Transferor[s] and the tax deduction for such
amounts will be allocated to the Transferor[s].
Section 7.02. Indemnification.
The Transferor[s] will be liable as primary obligor for, and will
indemnify the Trust Company and its successors, assigns, agents, employees 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 Owner Trustee or any Indemnified Party in any way
relating to or arising out of this Agreement or the other Transaction
Documents, the Trust Estate, the acceptance and administration of the Trust
Estate or the action or inaction of the Owner Trustee hereunder; provided that
the Transferor[s] will not be liable for or required to indemnify any
Indemnified Party from and against Expenses arising or resulting from (i) the
Indemnified Party's own willful misconduct, bad faith or negligence, (ii) the
inaccuracy of any representation or warranty contained in Section 6.03 made by
the Indemnified Party or (iii) taxes imposed on the Trust Company in
connection with the fees earned by the Owner Trustee pursuant to this
Agreement. An Indemnified Party's right to enforce such obligation is subject
to the provisions of Section 10.08. The indemnities contained in this Section
will survive the resignation or removal of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or proceeding
for which indemnity is sought pursuant to this Section, the Owner Trustee's
choice of legal counsel will be subject to the approval of the Transferor[s],
which approval may not be unreasonably withheld.
Section 7.03. Payments to the Owner Trustee.
Any amounts paid to the Owner Trustee pursuant to this Article VII
will be deemed not to be a part of the Trust Estate immediately after such
payment.
ARTICLE VIII
TERMINATION OF AGREEMENT
Section 8.01. Termination of Agreement.
The legal existence of the Issuer will terminate upon the earlier of
(i) [________ __, 20__] and (ii) at the option of the Transferor[s], the day
following the day on which the right of all Series of Notes to receive
payments from the Trust Estate has terminated (the "Trust Termination Date").
Any money or other property held as part of the Trust Estate following such
termination will be distributed to the Transferor[s] [in accordance with their
respective interests in the Transferor Interest.] The bankruptcy, liquidation,
dissolution, termination, death or incapacity of [the][any] Transferor will
not (1) operate to terminate this Agreement or the legal existence of the
Issuer or (2) entitle [the][any] Transferor'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 Issuer or Trust Estate or
(3) otherwise affect the rights, obligations and liabilities of the parties
hereto. Upon dissolution of the Issuer, the Owner Trustee will wind up the
business and affairs of the Issuer as required by Section 3808 of the Delaware
Business Trust Statute.
Except as provided in this Section 8.01, the Transferor[s] will not
be entitled to revoke or terminate the legal existence of the Issuer or this
Agreement.
Upon the winding up of the Issuer, this Agreement (other than Article
VII) will terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee.
The Owner Trustee will at all times (i) be a corporation authorized
to exercise corporate trust powers; (ii) have a combined capital and surplus
of at least $50,000,000 and be subject to supervision or examination by
federal or state authorities; and (iii) have (or have a parent that has) a
rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's and, if
rated by Fitch, at least BBB- by Fitch, or be otherwise satisfactory to each
Rating Agency. If such corporation publishes 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, the combined
capital and surplus of such corporation will be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Owner Trustee ceases to be eligible in
accordance with the provisions of this Section, the Owner Trustee will resign
immediately in the manner and with the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee.
(a) The Owner Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the
Administrator. Upon receiving such notice of resignation, the Administrator
will promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument will be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor
Owner Trustee has been appointed and accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee, provided, however, that such right to appoint or
petition for the appointment of any such successor will in no event relieve
the resigning Owner Trustee from any obligations imposed on it under the
Transaction Documents until such successor has in fact assumed such
appointment.
(b) If at any time the Owner Trustee ceases to be eligible in
accordance with the provisions of Section 9.01, or if the Owner Trustee
resigns pursuant to this Section 9.02, or if the Owner Trustee fails to resign
after written request therefor by the Administrator, or if at any time the
Owner Trustee is legally unable to act, or is adjudged bankrupt or insolvent,
or a receiver of the Owner Trustee or of its property is appointed, or any
public officer takes charge or control of the Owner Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,
then the Administrator may, but will not be required to, remove the Owner
Trustee. If the Administrator removes the Owner Trustee under the authority of
the immediately preceding sentence, the Administrator will promptly (i)
appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument will be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and (ii) pay all fees owed
to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this Section
will not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator will provide notice of
such resignation or removal of the Owner Trustee to each Rating Agency.
Section 9.03. Successor Owner Trustee.
(a) Any successor Owner Trustee appointed pursuant to Section 9.02
will execute, acknowledge and deliver to the Administrator and to its
predecessor Owner Trustee an instrument accepting such appointment under this
Agreement. Upon the resignation or removal of the predecessor Owner Trustee
becoming effective pursuant to Section 9.02, such successor Owner Trustee,
without any further act, deed or conveyance, will become fully vested with all
the rights, powers, duties, and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee will, upon payment of its fees and expenses, deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement, and the Administrator and the predecessor Owner
Trustee will execute and deliver such instruments and do such other things as
are reasonably required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
(b) No successor Owner Trustee may accept appointment as provided in
this Section, unless at the time of such acceptance such successor Owner
Trustee is eligible pursuant to Section 9.01.
(c) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator will provide notice of such
acceptance of appointment including the name of such successor Owner Trustee
to the Transferor[s], the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator fails to provide such notice within ten (10) days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee will cause such notice to be provided at the expense of the
Administrator.
Section 9.04. Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any corporation into
which the Owner Trustee is merged or converted or with which it is
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee will be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, will be the successor of the Owner Trustee hereunder without
the execution or filing of any instrument or any further act on the part of
any of the parties hereto; provided that such corporation is required to meet
the eligibility requirements set forth in Section 9.01; and provided, further,
that the Owner Trustee (i) provide notice of such merger or consolidation to
each Rating Agency not less than fifteen (15) days prior to the effective date
thereof and (ii) file an amendment to the Certificate of Trust as required by
Section 9.03.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Administrator and
the Owner Trustee acting jointly will have the power and will execute and
deliver all instruments to appoint one or more Persons approved by each of the
Administrator and 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 Estate, and to vest in such Person, in such capacity, such title to
the Trust Estate, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If
the Administrator has not joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone will have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement will be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee will be required pursuant to Section 9.03.
Each separate trustee and co-trustee will, 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 will 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 is 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
Issuer or any portion thereof in any such jurisdiction) will 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 will be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co- trustee.
Any notice, request or other writing given to the Owner Trustee will
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 will refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, will 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 will be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, 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
dies, becomes incapable of acting, resigns or is removed, all of its estates,
properties, rights, remedies and trusts will 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 9.06. Compliance with Delaware Business Trust Statute.
Notwithstanding anything herein to the contrary, the Issuer will at
all times have at least one trustee that meets the requirements of Section
3807(a) of the Delaware Business Trust Statute.
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time, by a written
amendment duly executed and delivered by the Transferor[s]and the Owner
Trustee, with the written consent of the Indenture Trustee, but without the
consent of any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or modifying in any manner the rights of the Noteholders;
provided, however, that such amendment:
(i) may not, as evidenced by an Officers' Certificate of
[the][each] Transferor addressed and delivered to the Owner Trustee
and the Indenture Trustee, materially and adversely affect the
interest of any Noteholder or [the] [such] Transferor; and
(ii) may not, as evidenced by an Opinion of Counsel addressed
and delivered to the Owner Trustee and the Indenture Trustee, cause
the Issuer to be classified as an association (or a publicly traded
partnership) taxable as a corporation for federal income tax
purposes.
(b) Additionally, notwithstanding Section 10.01(a), this Agreement
will be amended by the Transferor[s] and the Owner Trustee without the consent
of the Indenture Trustee or any of the Noteholders to add, modify or eliminate
such provisions as may be necessary or advisable in order to enable all or a
portion of the Issuer (1) to qualify as, and to permit an election to be made
to cause the Issuer to be treated as, a "financial asset securitization
investment trust" as described in the provisions of Section 860L of the Code,
and (2) to avoid the imposition of state or local income or franchise taxes
imposed on the Issuer's property or its income; provided, however, that:
(i) [the][each] Transferor delivers to the Indenture Trustee
and the Owner Trustee an Officers' Certificate to the effect that
the proposed amendments meet the requirements set forth in this
subsection;
(ii) the Rating Agency Condition has been satisfied; and
(iii) such amendment does not affect the rights, duties or
obligations of the Owner Trustee hereunder.
(c) This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by the Transferor[s] and the Owner
Trustee, with the consent of the Indenture Trustee and the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes,
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; provided, however, that without the
consent of all Noteholders, no such amendment may:
(i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required
to be made for the benefit of the Noteholders; or
(ii) reduce the aforesaid percentage of the Outstanding Amount
of the Notes, the Holders of which are required to consent to any
such amendment; and
provided, further, any such amendment will be subject to delivery to the
Indenture Trustee of a Tax Opinion.
(d) Promptly after the execution of any such amendment or consent,
the Transferor[s] will furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each Rating Agency. The
Noteholders must consent to and approve the substance of all proposed
amendments and consents, but they need not consent to and approve the
particular form of such amendment or consent. Promptly after the execution of
any amendment to the Certificate of Trust, the Owner Trustee will cause the
filing of such amendment with the Secretary of State.
(e) The Owner Trustee is entitled to receive, and will be fully
protected in relying upon, an Officer's Certificate of [the][each] Transferor
or the Administrator to the effect that the conditions to such Amendment have
been satisfied. The Owner Trustee may, but is not obligated to, enter into any
such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Section 10.02. No Legal Title to Trust Estate in Transferor[s].
The Transferor[s] does not have legal title to any part of the Trust
Estate. No transfer, by operation of law or otherwise, of any right, title,
and interest of [the][any] Transferor to and in its beneficial ownership
interest in the Trust Estate will operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Trust Estate.
Section 10.03. Limitations on Rights of Others.
The provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Transferor[s], the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, is to be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 10.04. Notices.
Unless otherwise expressly specified or permitted by the terms
hereof, all notices must be in writing and will be sufficiently given if
delivered in person or by overnight courier service at, or sent by facsimile
transmission or other electronic transmission, followed by first class mail,
to (i) in the case of the Owner Trustee at its Corporate Trust Office,
Attention: _______________ (facsimile: _______________); (ii) in the case of
the Transferor[s], [______________________] Attention: _______________
(facsimile: _______________) or, as to each party, at such other address as
may be designated by such party in a written notice to each other party. All
notices will be effective on receipt.
Section 10.05. Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction will, 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 will not invalidate or render unenforceable such provision in
any other jurisdiction.
Section 10.06. Separate Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 10.07. Successors and Assigns.
All covenants and agreements contained herein are binding upon, and
inure to the benefit of, the Owner Trustee and its successors and the
Transferor[s] and [its][their] successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by [the][a] Transferor will bind the successors and assigns of
[the][such] Transferor.
Section 10.08. Nonpetition Covenants.
Notwithstanding any prior termination of the legal existence of the
Issuer or this Agreement, the Owner Trustee (not in its individual capacity
but solely as Owner Trustee) may not at any time with respect to the Issuer or
[the][any] Transferor, acquiesce, petition or otherwise invoke or cause the
Issuer or [the][any] Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Issuer or [the][any] Transferor under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or [the][any] Transferor or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Issuer or [the][any] Transferor; provided, however, that this Section is not
intended to preclude any remedy described in Article V of the Indenture.
Section 10.09. No Recourse.
The Transferor[s] by accepting the Certificates acknowledges that the
Certificates do not represent interests in or obligations of 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, or
against the assets pledged under the Indenture, except as expressly provided
in the Transaction Documents.
Section 10.10. Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and are not intended to define or limit any of
the terms or provisions hereof.
Section 10.11. Governing Law.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER ARE TO BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Transferor Payment Obligation.
The Transferor[s] is responsible for payment of the Administrator's
fees under the Administration Agreement (to the extent not paid pursuant to
[Section 4.04(a) of the applicable Indenture Supplement]) and will reimburse
the Administrator for all expenses and liabilities of the Administrator
incurred thereunder.
Section 10.13. Acceptance of Terms of Agreement.
THE RECEIPT AND ACCEPTANCE OF THE CERTIFICATE[S] BY THE
TRANSFEROR[S], WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE TRANSFEROR[S] OF ALL THE TERMS
AND PROVISIONS OF THIS AGREEMENT, AND CONSTITUTE THE AGREEMENT OF THE ISSUER
THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE ISSUER AND THE TRANSFEROR[S].
Section 10.14. Integration of Documents.
This Agreement constitutes the entire agreement of the parties hereto
and thereto with respect to the subject matter hereof and thereof and
supersedes all prior agreements relating to the subject matter hereof and
thereof.
IN WITNESS WHEREOF, the Transferor[s] and the Owner Trustee have
caused this Trust Agreement to be duly executed by their respective duly
authorized officers, all as of the day and year first above written.
[FORD CREDIT AUTO RECEIVABLES CORPORATION]
as Transferor
By
------------------------------------------
Name:
Title:
[FORD CREDIT AUTO RECEIVABLES LLC]
[as Transferor]
By
-------------------------------------------
Name:
Title:
[OWNER TRUSTEE],
not in its individual capacity, but solely as
Owner Trustee
By
-------------------------------------------
Name:
Title:
Exhibit A
Form of Certificate
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. R-__ Percentage Interest ___%
FORD CREDIT FLOORPLAN MASTER OWNER TRUST [__]
CERTIFICATE
Evidencing an interest in a trust, the corpus of which consists
primarily of an interest in receivables arising from time to time in
connection with dealer floorplan financing accounts transferred by [Ford
Credit Auto Receivables Corporation, a Delaware corporation][and] [Ford Credit
Auto Receivables LLC, a Delaware limited liability company], as transferor[s]
(the "Transferor[s]").
(Not an interest in or obligation of the Transferor[s] or any affiliate thereof)
This certifies that [FORD CREDIT AUTO RECEIVABLES CORPORATION] [FORD
CREDIT AUTO RECEIVABLES LLC] is the registered owner of an undivided
beneficial ownership interest in the assets of a trust (the "Trust") subject
to the lien of the Noteholders pursuant to the Indenture, dated as of [______
__, 200_] (as amended and supplemented, the "Indenture"), between the Issuer
and [Indenture Trustee], as Indenture Trustee, and not allocated to the
interest of any Holder of a Supplemental Certificate pursuant to the Trust
Agreement, dated as of [______ __, 200_] (as amended and supplemented, the
"Trust Agreement[s]"), between the Transferor[s] and [Owner Trustee], as owner
trustee (the "Owner Trustee"). The corpus of the Issuer consists of (a) a
portfolio of certain receivables (the "Receivables") arising from time to time
in connection with dealer floorplan financing accounts identified under the
Transfer and Servicing Agreement[s], dated as of [______ __, 200_] (as amended
and supplemented, the "Transfer and Servicing Agreement[s]"), among the
Transferor[s], Ford Motor Credit Company, as servicer (the "Servicer"), and
the Issuer from time to time (the "Accounts"), (b) certain Receivables
generated under the Accounts from time to time thereafter, (c) certain funds
collected or to be collected from account holders in respect of the
Receivables, (d) all funds which are from time to time on deposit in the
Collection Account and in the Series Accounts, (e) the benefits of any Series
Enhancements issued and to be issued by Series Enhancers with respect to one
or more Series of Notes and (f) all other assets and interests constituting
the Issuer. Although a summary of certain provisions of the Transfer and
Servicing Agreement[s], the Trust Agreement and the Indenture (collectively,
the "Agreements") is set forth below, this Certificate does not purport to
summarize the Agreements and reference is made to the Agreements for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Owner Trustee. A copy of the Agreements may be requested from the Owner
Trustee by writing to the Owner Trustee at its Corporate Trust Office. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended
and supplemented from time to time, the Transferor[s] by virtue of the
acceptance hereof assent[s] and [is] [are] bound.
The Receivables consist of receivables that arise from time to time
in connection with the purchase and financing by various retail motor vehicle
dealers of their new and used automobile and light-duty truck inventory.
This Certificate is [one of ]the Certificate[s] representing the
Transferor['s][s'] interest in the assets of the Issuer, including the right
to receive a portion of the Collections and other amounts at the times and in
the amounts specified in the Indenture. The aggregate interest represented by
the Certificate[s] at any time in the Receivables in the Issuer may not exceed
the Transferor Interest at such time. In addition to the Certificate[s], (a)
Notes will be issued to investors pursuant to the Indenture, which will
represent obligations of the Issuer, and (b) Supplemental Certificates may be
issued pursuant to the Trust Agreement, which will represent that portion of
the Transferor Interest not allocated to the Transferor[s]. This Certificate
represents an interest in the Collection Account or the Series Accounts,
subject to the lien of the Notes and only as expressly provided in the
Agreements, or any Series Enhancements.
Unless otherwise specified in an Indenture Supplement with respect to
a particular Series the Transferor[s] [has] [have] entered into the Transfer
and Servicing Agreements, and this Certificate is issued, with the intention
that, for federal, state and local income and franchise tax purposes, (a) the
Notes of each Series that characterized as indebtedness at the time of their
issuance will qualify as indebtedness of the Transferor[s] secured by the
Receivables and (b) the Issuer will not be treated as an association taxable
as a corporation. The [applicable] Transferor, by entering into the
[applicable] Transfer and Servicing Agreement and by the acceptance of this
Certificate, agrees to treat the Notes for federal, state and local income and
franchise tax purposes as indebtedness of the Transferor[s].
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Issuer created
thereby will terminate upon the earlier of (a) [______ __, 20__] and (b) the
day following the day on which the right of all Series of Notes to receive
payments from the Issuer has terminated (the "Trust Termination Date");
provided that the Transferor[s] [has][have] delivered a written notice to the
Owner Trustee electing to terminate the Issuer.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Owner Trustee, by manual signature, this Certificate will
not be entitled to any benefit under the Agreement or be valid for any
purpose.
IN WITNESS WHEREOF, this Certificate to be duly executed by a duly
authorized officer of the Owner Trustee.
Dated: ____________
[OWNER TRUSTEE],
not in its individual capacity but solely
as Owner Trustee
By _______________________________________
Authorized Signatory
Certificate of Authentication
m
\pok9i0dxaz ';-pl0ofc;l
This is [the] [a] Certificate described in the within mentioned Trust
Agreement.
[OWNER TRUSTEE],
not in its individual capacity but solely as Owner Trustee
By ___________________________________________
Authorized Signatory