AMENDED AND RESTATED TRUST AGREEMENT between FORD CREDIT AUTO RECEIVABLES TWO LLC, as Depositor and U.S. BANK TRUST NATIONAL ASSOCIATION, as Owner Trustee for Ford Credit Auto Owner Trust 2006-A Dated as of February 1, 2006
AMENDED
AND RESTATED
between
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
as
Depositor
and
U.S.
BANK
TRUST
NATIONAL
ASSOCIATION,
as
Owner
Trustee
for
Dated
as
of February 1, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
I USAGE AND DEFINITIONS
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1
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ARTICLE
II ORGANIZATION OF THE TRUST
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1
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Section
2.1
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Name
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1
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Section
2.2
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Office
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1
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Section
2.3
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Purposes
and Powers
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1
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Section
2.4
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Appointment
of the Owner Trustee
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2
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Section
2.5
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Contribution
and Conveyance of Trust Property
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2
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Section
2.6
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Declaration
of Trust
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2
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Section
2.7
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Liability
of the Depositor; Conduct of Activities; Liability to Third
Parties
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2
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Section
2.8
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Title
to Trust Property
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3
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Section
2.9
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Situs
of Issuer
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3
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Section
2.10
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Representations
and Warranties of the Depositor
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3
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Section
2.11
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Tax
Matters
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4
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ARTICLE
III RESIDUAL INTEREST AND TRANSFER OF INTERESTS
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6
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Section
3.1
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The
Residual Interest
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6
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Section
3.2
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Registration
of Residual Interests; Transfer of the Residual Interest
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7
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Section
3.3
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Capital
Accounts
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8
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Section
3.4
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Maintenance
of Office or Agency
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9
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Section
3.5
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Distributions
to the Holder of the Residual Interest
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9
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ARTICLE
IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
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9
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Section
4.1
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Application
of Trust Funds
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9
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Section
4.2
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Method
of Payment
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10
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ARTICLE
V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
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10
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Section
5.1
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General
Authority
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10
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Section
5.2
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General
Duties
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10
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Section
5.3
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Action
upon Prior Notice with Respect to Certain Matters
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10
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Section
5.4
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Action
upon Direction by the Holder of the Residual Interest with Respect
to
Certain Matters
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11
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Section
5.5
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Action
with Respect to Bankruptcy
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11
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Section
5.6
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Action
upon Instruction
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11
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Section
5.7
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No
Duties Except as Specified in this Agreement or in
Instructions
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12
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Section
5.8
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No
Action Except Under Specified Documents or Instructions
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12
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Section
5.9
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Prohibition
on Certain Actions
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12
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Section
5.10
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Audits
of the Owner Trustee
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12
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i
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Section
5.11
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Furnishing
of Documents
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13
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Section
5.12
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▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act
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13
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Section
5.13
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Maintenance
of Licenses
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13
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ARTICLE
VI REGARDING THE OWNER TRUSTEE
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13
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Section
6.1
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Acceptance
of Trusts and Duties
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13
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Section
6.2
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Representations
and Warranties of the Owner Trustee
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15
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Section
6.3
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Reliance;
Advice of Counsel
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16
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Section
6.4
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Not
Acting in Individual Capacity
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16
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Section
6.5
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U.S.
Bank Trust May Own Notes
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16
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Section
6.6
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Duty
to Update Disclosure
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16
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ARTICLE
VII COMPENSATION AND INDEMNIFICATION OF THE OWNER TRUSTEE; ORGANIZATIONAL
EXPENSES
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17
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Section
7.1
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Owner
Trustee’s Fees and Expenses
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17
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Section
7.2
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Indemnification
of the Owner Trustee
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17
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Section
7.3
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Organizational
Expenses of the Issuer
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18
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Section
7.4
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Certain
Expenses of the Indenture Trustee
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18
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ARTICLE
VIII TERMINATION
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19
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Section
8.1
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Termination
of Trust Agreement
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19
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ARTICLE
IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
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19
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Section
9.1
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Eligibility
Requirements for the Owner Trustee
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19
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Section
9.2
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Resignation
or Removal of the Owner Trustee
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20
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Section
9.3
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Successor
Owner Trustee
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20
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Section
9.4
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Merger
or Consolidation of the Owner Trustee
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21
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Section
9.5
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Appointment
of Separate Trustee or Co-Trustee
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21
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Section
9.6
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Compliance
with Delaware Statutory Trust Act
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22
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ARTICLE
X MISCELLANEOUS
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23
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Section
10.1
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Supplements
and Amendments
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23
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Section
10.2
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No
Legal Title to Trust Property in the Holder of the Residual
Interest
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25
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Section
10.3
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Limitation
on Rights of Others
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25
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Section
10.4
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Notices
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25
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Section
10.5
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GOVERNING
LAW
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26
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Section
10.6
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WAIVER
OF JURY TRIAL
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26
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Section
10.7
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Severability
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26
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Section
10.8
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Counterparts
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26
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Section
10.9
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Headings
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26
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ii
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Section
10.10
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No
Petition
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26
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Exhibit
A
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Form
of Certificate of Trust
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A-1
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iii
AMENDED
AND RESTATED TRUST AGREEMENT, dated as of February 1, 2006 (this “Agreement”),
between FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability
company, as Depositor, and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association, not in its individual capacity but solely as trustee under
this Agreement, to establish Ford Credit Auto Owner Trust 2006-A.
BACKGROUND
The
parties to this Agreement wish to amend and restate the interim Trust Agreement,
dated as of November 1, 2005, between the Depositor and the Owner Trustee as
set
forth in this Agreement.
ARTICLE
I
USAGE
AND
DEFINITIONS
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A
to the Sale and Servicing Agreement. Appendix A also contains rules as to usage
applicable to this Agreement. Appendix A is incorporated by reference into
this
Agreement.
ARTICLE
II
ORGANIZATION
OF THE TRUST
Section
2.1 Name.
The trust created by this Agreement will be known as “Ford Credit Auto Owner
Trust 2006-A”, in which name the Owner Trustee may conduct the activities 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
2.2 Office.
The office of the Issuer will be in care of the Owner Trustee at its Corporate
Trust Office.
Section
2.3 Purposes
and Powers.
(a) The
purpose of the Issuer is, and the Issuer will have the power and authority,
to
engage in the following activities:
(i) to
acquire the Receivables and other Trust Property pursuant to the Sale and
Servicing Agreement from the Depositor in exchange for the Notes and the
Residual Interest;
(ii) to
Grant
the Collateral to the Indenture Trustee pursuant to the Indenture;
(iii)
to
enter
into and perform its obligations under the Basic Documents;
(iv)
to
enter
into and perform its obligations under any interest rate protection agreement
or
agreements with one or more counterparties;
(v) to
issue
the Notes pursuant to the Indenture and to sell the Notes upon the order of
the
Depositor;
(vi)
to
pay
interest on and principal of the Notes;
(vii)
to
issue
additional securities pursuant to one or more supplemental indentures or
amendments to this Agreement and to transfer all or a portion of such securities
to the Depositor or other holder of a Residual Interest, subject to compliance
with the Basic Documents, in exchange for all or a portion of the Residual
Interest;
(viii)
to
engage
in those activities, including entering into agreements, that are necessary,
appropriate or convenient to accomplish the foregoing or are incidental to
the
foregoing; and
(ix) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Trust Property and the
making of payments to the Noteholders and distributions to the holder of the
Residual Interest.
(b) The
Issuer will not engage in any activity other than as required or authorized
by
this Agreement or the other Basic Documents.
Section
2.4 Appointment
of the Owner Trustee.
The Depositor appoints the Owner Trustee as trustee of the Issuer effective
as
of the Cutoff Date, to have all the rights, powers and duties set forth in
this
Agreement.
Section
2.5 Contribution
and Conveyance of Trust Property.
As of November 1, 2005, the Depositor contributed to the Owner Trustee the
amount of $1. The Owner Trustee acknowledges receipt in trust from the
Depositor, as of such date, of such contribution, which constitutes the initial
Trust Property. On the Closing Date, the Depositor will sell to the Issuer
the
Trust Property in exchange for the Notes.
Section
2.6 Declaration
of Trust.
The Owner Trustee will hold the Trust Property in trust upon and subject to
the
conditions set forth in this Agreement for the use and benefit of the holder
of
the Residual Interest, subject to the obligations of the Issuer under the Basic
Documents. It is the intention of the parties that the Issuer constitute a
statutory trust under the Delaware Statutory Trust Act and that this Agreement
constitute the governing instrument of such statutory trust. Effective as of
the
Cutoff Date, the Owner Trustee will have the rights, powers and duties set
forth
in this Agreement and in the Delaware Statutory Trust Act with respect to
accomplishing the purposes of the Issuer. A Certificate of Trust substantially
in the form of Exhibit A and any necessary certificate of amendment has been
filed with the Secretary of State of the State of Delaware.
Section
2.7 Liability
of the Depositor; Conduct of Activities; Liability to Third Parties.
2
(a) The
Depositor, as initial holder of the entire Residual Interest, will be entitled
to the same limitation of personal liability extended to stockholders or a
private corporation for profit organized under the Delaware General Corporation
Law.
(b) The
activities and affairs of the Issuer will be operated in such a manner as to
preserve (i) the limited liability of the Depositor, (ii) the separateness
of
the Issuer from the activities of the Depositor and Ford Credit and (iii) until
1 year and 1 day after all Notes and any additional securities issued pursuant
to Section 3.1(b) are paid in full, the bankruptcy remote status of the Issuer.
(c) Except
as
otherwise provided in this Agreement, none of the Depositor, the Administrator
or any of their Affiliates or any manager, officer or employee of any such
Person, will be liable for the debts, obligations or liabilities of the
Issuer.
Section
2.8 Title
to Trust Property.
Legal title to the Trust Property will be vested in the Issuer as a separate
legal entity, except where applicable law in any jurisdiction requires title
to
any part of the Trust Property to be vested in a trustee or trustees, in which
case title will be deemed to be vested in the Owner Trustee, a co-trustee and/or
a separate trustee, as the case may be.
Section
2.9 Situs
of Issuer.
The Issuer will be 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. The Issuer will not have any employees in any state other
than the State of Delaware, except that the Owner Trustee may have employees
within or outside the State of Delaware. Payments will be received by the Issuer
only in Delaware, and payments will be made by the Issuer only from Delaware.
The principal office of the Issuer will be in care of the Owner Trustee in
the
State of Delaware.
Section
2.10 Representations
and Warranties of the Depositor.
The Depositor represents and warrants to the Owner Trustee as of the Closing
Date:
(a) Organization
and Qualification.
The
Depositor is duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware. The Depositor
is qualified as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which
the
ownership or lease of its properties or the conduct of its activities requires
such qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals would not have a material adverse effect
on the Depositor’s ability to perform its obligations under this Agreement or
the other Basic Documents to which it is a party.
(b) Power,
Authorization and Enforceability.
The
Depositor has the power and authority to execute, deliver and perform the terms
of this Agreement. The Depositor has authorized the execution, delivery and
performance of the terms of each of the Basic Documents to which it is a party.
Each of the Basic Documents to which the Depositor is a party is the legal,
valid and binding obligation of the Depositor enforceable against the Depositor,
except as may be limited by insolvency, bankruptcy, reorganization or other
laws
relating to the enforcement of creditors’ rights or by general equitable
principles.
3
(c) No
Conflicts and No Violation.
The
consummation of the transactions contemplated by the Basic Documents to which
the Depositor is a party and the fulfillment of the terms of the Basic Documents
to which the Depositor is a party will not: (i) conflict with or result in
a
material breach of the terms or provisions of, or constitute a default under
any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Depositor is a debtor or guarantor,
(ii)
result in the creation or imposition of any lien, charge or encumbrance upon
any
of the properties or assets of the Depositor pursuant to the terms of any such
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument (other than this Agreement) (iii) violate the
Certificate of Formation or Limited Liability Company Agreement, or (iv) violate
any law or, to 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, in each case which conflict,
breach, default, lien, or violation would reasonably be expected to have a
material adverse effect on the Depositor’s ability to perform its obligations
under the Basic Documents.
(d) No
Proceedings.
To the
Depositor’s knowledge, there are no proceedings or investigations pending or
overtly threatened in writing, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Depositor or its properties: (i) asserting the invalidity of any of the Basic
Documents or the Notes, (ii) seeking to prevent the issuance of the Notes or
the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse affect on the Depositor’s ability to perform
its obligations under, or the validity or enforceability of, any of the Basic
Documents or the Notes or (iv) that would reasonably be expected to (A) affect
the treatment of the Notes as indebtedness for U.S. federal income or Applicable
Tax State income or franchise tax purposes (B) be deemed to cause a taxable
exchange of the Notes for U.S. federal income tax purposes, (C) cause the Issuer
to be treated as an association or publicly traded partnership taxable as a
corporation for U.S. federal income tax purposes or (D) cause the Issuer to
incur Michigan Single Business Tax liability other than such proceedings that,
to the Depositor’s knowledge, would not reasonably be expected to have a
material adverse effect upon the Depositor or materially and adversely affect
the performance by the Depositor of its obligations under, or the validity
and
enforceability of, the Basic Documents or the Notes.
Section
2.11 Tax
Matters.
(a) It
is the
intention of the parties and Ford Credit that, for purposes of U.S. federal
income, state and local income and franchise tax and any other income taxes,
so
long as the Issuer has no equity owner other than the Depositor (as determined
for U.S. federal income tax purposes), the Issuer be treated as an entity
disregarded as separate from the Depositor. If beneficially owned by a Person
other than Ford Credit, each Class of Notes is intended to be treated as
indebtedness for U.S. federal income tax purposes. The Depositor agrees, and
the
Noteholders by acceptance of their Notes agree in the Indenture, to such
treatment and each agrees to take no action inconsistent with such
treatment.
(b) If
one or
more Classes of Notes is recharacterized as an equity interest in the Issuer,
and not as indebtedness (any such Class, a “Recharacterized
Class”)
and
any such
4
Recharacterized
Class is treated as not owned by Ford Credit or the Depositor (if the Depositor
is not an entity disregarded as separate from Ford Credit for U.S. federal
income tax purposes) for U.S. federal income, or State or local income,
franchise or single business tax purposes, the parties intend that the Issuer
be
characterized as a partnership among Ford Credit or the Depositor (to the extent
either is at that time treated as an equity owner of the Issuer for U.S. federal
income tax purposes), any other holder of the Residual Interest and any holders
of the Recharacterized Class or Classes. In that event, for purposes of U.S.
federal income, State and local income, franchise tax and single business taxes
each month:
(i) amounts
paid as interest to holders of any Recharacterized Class will be treated as
a
guaranteed payment within the meaning of Section 707(c) of the
Code;
(ii) to
the
extent the characterization provided for in Section 2.11(a) is not respected,
gross ordinary income of the Issuer for such month as determined for U.S.
federal income tax purposes will be allocated to the holders of each
Recharacterized Class as of the Record Date occurring within such month, in
an
amount equal to the sum of (A) the interest accrued to such Recharacterized
Class for such month, (B) the portion of the market discount on the Receivables
accrued during such month that is allocable to the excess, if any, of the
aggregate initial Note Balance of such Recharacterized Class over the initial
aggregate issue price of the Notes of such Recharacterized Class and (C) any
amount expected to be distributed to the holders of such Class of Notes pursuant
to Section 8.2 of the Indenture (to the extent not previously allocated pursuant
to this Section 2.11(b)(ii)) to the extent necessary to reverse any net loss
previously allocated to holders of the Notes of such Recharacterized Class
(to
the extent not previously reversed pursuant to this Section 2.11(b)(ii)(C));
and
(iii) thereafter
all remaining net income of the Issuer (subject to the modifications set forth
below) for such month as determined for U.S. federal income tax purposes (and
each item of income, gain, credit, loss or deduction entering into the
computation thereof) will be allocated to the holder of the Residual
Interest.
If
the
gross ordinary income of the Issuer for any month is insufficient for the
allocations described in Section 2.11(b)(ii) above, subsequent gross ordinary
income will first be allocated to each Recharacterized Class in alphabetical
order to make up such shortfall before any allocation pursuant to Section
2.11(b)(iii). Net losses of the Issuer, if any, for any month as determined
for
U.S. federal income tax purposes (and each item of income, gain, credit, loss
or
deduction entering into the computation thereof) will be allocated to the holder
of the Residual Interest to the extent the holder of the Residual Interest
is
reasonably expected to bear the economic burden of such net losses, and any
remaining net losses will be allocated in reverse alphabetical order to each
Recharacterized Class, in each case, until the Note Balance of such
Recharacterized Class is reduced to zero as of the Record Date occurring within
such month, and among each Recharacterized Class, in proportion to their
ownership of the aggregate Note Balance of such Recharacterized Class on such
Record Date. The tax matters partner designated pursuant to Section 2.11(f)
is
authorized to modify the allocations in this Section 2.11(b) if
5
necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to the holder of the Residual Interest or
the
holders of a Recharacterized Class or as otherwise required by the
Code.
(c) The
parties agree that, unless otherwise required by the appropriate tax
authorities, the Depositor, on behalf of the Issuer, will file or cause to
be
filed annual or other necessary returns, reports and other forms consistent
with
the characterizations described in Section 2.11(a).
(d) The
Owner
Trustee will not elect or cause the Issuer to elect, and the other parties
to
this Agreement will not elect or permit an election to be made, to treat the
Issuer as an association taxable as a corporation for U.S. federal income tax
purposes pursuant to Treas. Reg. §301.7701-3.
(e) If
at any
time the Issuer is not treated as an entity disregarded as separate from the
Depositor for U.S. federal income tax purposes, the Owner Trustee will, based
on
information provided by or on behalf of the Depositor, (i) maintain the books
of
the Issuer on the basis of a calendar year and the accrual method of accounting,
(ii) deliver to the holder of the Residual Interest such information as may
be
required under the Code to enable such holder to prepare its U.S. federal and
State income tax returns, (iii) file any tax returns relating to the Issuer
and
make such elections as may be required or appropriate under any applicable
U.S.
federal or State statute and (iv) collect any withholding tax as described
in
and in accordance with Section 4.1(c).
(f) If
at any
time the Issuer is not an entity disregarded as separate from the Depositor
for
U.S. federal income tax purposes, the Depositor so long as it is treated as
holding any equity interest in the Issuer for U.S. federal income tax purposes,
and otherwise, the owner of such equity interests designated by a majority
of
such owners, will (i) prepare and sign, on behalf of the Issuer, the tax returns
of the Issuer and (ii) be designated the “tax matters partner” of the Issuer
pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE
III
RESIDUAL
INTEREST AND TRANSFER OF INTERESTS
Section
3.1 The
Residual Interest.
(a) Upon
the
formation of the Issuer by the contribution and conveyance by the Depositor
pursuant to Section 2.5, the Depositor will be the sole holder of the Residual
Interest. The holder of the Residual Interest will be entitled, pro rata, to
any
amounts not needed on any Payment Date to make payments on the Notes and on
all
other obligations to be paid under the Indenture and this Agreement, and to
receive amounts remaining in the Reserve Account following the payment in full
of the Notes and of all other amounts owing or to be distributed under this
Agreement, the Indenture or the Sale and Servicing Agreement to the Secured
Parties upon the termination of the Issuer.
(b) The
Depositor may exchange its Residual Interest for additional securities issued
by
the Issuer pursuant to one or more supplemental indentures to the Indenture
or
amendments to this Agreement. Such additional securities may consist of one
or
more classes of
6
notes,
certificates or other securities, as directed by the Depositor, each having
the
characteristics, rights and obligations as may be directed by the Depositor
(which may include subordination to one or more other classes of such additional
securities), provided:
(i)
the
rights of the holders of such additional securities, when taken as a whole,
are
no greater than the rights of the holder of the Residual Interest immediately
prior to the issuance of such additional securities (unless all Noteholders
of
Outstanding Notes otherwise consent);
(ii) the
Depositor delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that the issuance of such additional securities will
not
(A) adversely affect in any material respect the interest of any Noteholder,
(B)
cause any Note to be deemed sold or exchanged for purposes of Section 1001
of
the Code, (C) cause the Issuer to be treated as an association or publicly
traded partnership taxable as a corporation for U.S. federal income tax
purposes, or (D) adversely affect the treatment of the Notes as debt for U.S.
federal income tax purposes; and
(iii) the
Depositor either delivers to the Indenture Trustee and the Owner Trustee (A)
an
Opinion of Counsel to the effect that, after giving effect to such exchange,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any such additional security or that the withholding
tax
imposed will be no greater than the withholding tax imposed prior to such
exchange or (B) an Officer’s Certificate that states withholding is applicable
to payments on any such additional securities, the rate of withholding tax
required on such payments, and that such amounts will be withheld and remitted
to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.
Without
limiting the foregoing, one or more classes of such additional securities may,
if so directed by the Depositor, be secured by all or a portion of the Trust
Property, so long as such security interest, taken as whole, is subordinated
in
priority to the security interest granted to the Secured Parties pursuant to
the
Indenture. Subject to this Section 3.1(b) and the other terms of the Basic
Documents, the Owner Trustee, on behalf of the Issuer, will take (at the expense
of the Depositor) all actions requested by the Depositor to facilitate the
issuance and sale of any such additional securities or the Grant and perfection
of any security interest granted pursuant to this Section 3.1(b), including
the
authorization of the filing of any financing statements in jurisdictions deemed
necessary or advisable by the Depositor to perfect such security
interest.
Section
3.2 Registration
of Residual Interests; Transfer of the Residual Interest.
The Issuer appoints the Owner Trustee to be the “Trust
Registrar”
and
to
keep a register (the “Trust
Register”)
for
the purpose of registering Residual Interests and transfers of Residual
Interests as provided in this Agreement. Upon any resignation of the Trust
Registrar, the Issuer will promptly appoint a successor or, if it elects not
to
make such an appointment, assume the duties of Trust Registrar. The holder
of
the Residual Interest may not sell, transfer, assign or convey its rights to
the
Residual Interest to Ford Credit at any time. The holder of the Residual
Interest will be permitted to sell, transfer, assign or convey its rights in
the
Residual Interest to
7
any
Person that is treated as being an entity separate from Ford Credit for U.S.
federal income tax purposes if the following conditions are
satisfied:
(a) such
holder of a Residual Interest delivers an Opinion of Counsel to the Issuer
and
the Indenture Trustee to the effect that such action will not cause the Issuer
to be or become characterized for U.S. federal or any then Applicable Tax State
income tax purposes as an association or publicly traded partnership taxable
as
a corporation;
(b) such
holder of a Residual Interest delivers to the Indenture Trustee and the Owner
Trustee (i) an Opinion of Counsel to the effect that, after giving effect to
such action, there will be no withholding imposed under Sections 1441 or 1442
of
the Code in respect of payments on any such transferred security or that the
withholding tax imposed will be no greater than the withholding tax imposed
prior to such transfer or (ii) an Officer’s Certificate that states withholding
is applicable to payments on any such transferred security, the rate of
withholding tax required on such payments, and that such amounts will be
withheld and remitted to the Internal Revenue Service in satisfaction of the
requirements of Sections 1441 and 1442 of the Code;
(c) the
Depositor has notified the transferee or assignee of the tax positions
previously taken by it, as holder of the Residual Interest, for U.S. federal
and
any Applicable Tax State income tax purposes and the transferee or assignee
has
agreed to take positions for U.S. federal and any Applicable Tax State income
tax purposes consistent with the tax positions previously taken by the
Depositor, as holder of the Residual Interest; and
(d) the
holder or assignee of the Residual Interest delivers to the Indenture Trustee
and the Owner Trustee a certification that it is not, and each account (if
any)
for which it is acquiring the Residual Interest 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"))
which
is subject to Title I of ERISA, (ii) a "plan" described in Section 4975(e)(1)
of
the Code which is subject to Section 4975 of the Code, or (iii) 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).
Section
3.3 Capital
Accounts.
This Section 3.3 will apply only if the Issuer is not treated as an entity
disregarded for U.S. federal income tax purposes.
(a) The
Owner
Trustee will establish and maintain, in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations, a separate bookkeeping account
(a
“Capital
Account”)
for
the Depositor and each other person treated as an equity owner for U.S. federal
income tax purposes.
(b) Notwithstanding
any other provision of this Agreement to the contrary, the foregoing provisions
of this Section 3.3 regarding the maintenance of Capital Accounts will be
construed so as to comply with the provisions of the Treasury Regulations
promulgated pursuant to Section 704 of the Code. The Depositor is authorized
to
modify these provisions to the minimum extent necessary to comply with such
regulations.
8
Section
3.4 Maintenance
of Office or Agency.
The Owner Trustee will maintain an office or offices or agency or agencies
where
notices and demands to or upon the Owner Trustee in respect of the Basic
Documents may be served. The Owner Trustee designates its Corporate Trust Office
for such purposes and will promptly notify the Depositor and the Indenture
Trustee of any change in the location of its Corporate Trust
Office.
Section
3.5 Distributions
to the Holder of the Residual Interest.
If the Trust Distribution Account has been established, the Owner Trustee will
have the revocable power to withdraw funds from the Trust Distribution Account
for the purpose of making distributions to the holder of the Residual Interest
under this Agreement. The Owner Trustee will make the distributions pursuant
to
Section 3.1, Section 4.2 and Section 8.1. The Owner Trustee will hold all sums
held by it for distribution to the holder of the Residual Interest in trust
for
the benefit of the holder of the Residual Interest until such sums are
distributed to the holder of the Residual Interest.
ARTICLE
IV
APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES
Section
4.1 Application
of Trust Funds.
If the Trust Distribution Account has been established:
(a) On
each
Payment Date, the Owner Trustee, based on the information contained in the
Monthly Investor Report, will withdraw the amounts deposited into the Trust
Distribution Account pursuant to Section 8.2(c)(xiv), 8.2(d)(viii) and
8.2(e)(xv) of the Indenture on or before such Payment Date and distribute such
amounts to the holder of the Residual Interest.
(b) Following
the satisfaction and discharge of the Indenture and the payment in full of
the
principal and interest on the Notes, the Owner Trustee will distribute any
remaining funds on deposit in the Trust Distribution Account to the holder
of
the Residual Interest.
(c) If
any
withholding tax is imposed on the Issuer’s payment (or allocations of income) to
the holder of the Residual Interest, such tax will reduce the amount otherwise
distributable to such holder in accordance with this Section 4.1(c). The Owner
Trustee is authorized and directed to retain from amounts otherwise
distributable to the holder of the Residual Interest sufficient
funds for the payment of any such withholding tax that is legally owed by the
Issuer (but such authorization will 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 the holder of the Residual
Interest will be treated as cash distributed to such holder at the time it
is
withheld by the Issuer and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution, the Owner Trustee may, in its sole discretion, withhold such
amounts in accordance with this Section 4.1(c). If the holder of a Residual
Interest wishes to apply for a refund of any such withholding tax, the Owner
Trustee will reasonably cooperate with such holder in
making
such claim so long as such holder agrees to reimburse the Owner Trustee for
any
out-of-pocket expenses incurred in so cooperating.
9
Section
4.2 Method
of Payment.
Distributions required to be made to the holder of the Residual Interest on
any
Payment Date will be made by wire transfer, in immediately available funds,
to
the account specified by such holder to the Owner Trustee.
ARTICLE
V
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE
Section
5.1 General
Authority.
(a) Upon
the
Depositor’s execution of this Agreement, the Owner Trustee is authorized and
directed, on behalf of the Issuer, to (i) execute and deliver the Basic
Documents and each certificate or other document attached as an exhibit to
or
contemplated by the Basic Documents to which the Issuer is to be a party and
(ii) direct the Indenture Trustee to authenticate and deliver the
Notes.
(b) The
Owner
Trustee is authorized to take all actions required of the Issuer pursuant to
the
Basic Documents and is authorized to take such action on behalf of the Issuer
as
is permitted by the Basic Documents that the Servicer or the Administrator
directs with respect to the Basic Documents, except to the extent that this
Agreement requires the consent of the Noteholders or the holder of the Residual
Interest for such action.
Section
5.2 General
Duties.
Subject to Section 5.3, it is the duty of the Owner Trustee to discharge all
of
its responsibilities pursuant to this Agreement and the Basic Documents to
which
the Issuer is a party and to administer the Issuer in the interest of the holder
of the Residual Interest, subject to the lien of the Indenture and in accordance
with the Basic Documents. The Owner Trustee will be deemed to have discharged
its duties and responsibilities 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 Issuer under any Basic
Document. The Owner Trustee will not be held liable for the default or failure
of the Administrator to carry out its obligations under the Administration
Agreement. The Owner Trustee will 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
5.3 Action
upon Prior Notice with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee may not take action
unless (i) at least 30 days before taking such action, the Owner Trustee has
notified the Indenture Trustee, the Noteholders of Notes of the Controlling
Class, the holder of the Residual Interest and the Rating Agencies of the
proposed action and (ii) Noteholders of at least a majority of the Note Balance
of the Controlling Class (or if no Notes are Outstanding, the holder of the
Residual Interest) have not notified the Owner Trustee before the 30th day
after
receipt of such notice that such majority of the Note Balance of the Controlling
Class (or if no Notes are Outstanding, the holder of the Residual Interest)
has
withheld consent or provided alternative direction:
(a) the
initiation of any material claim or lawsuit by the Issuer and the settlement
of
any material action, claim or lawsuit brought by or against the
Issuer;
10
(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 Statutory Trust Act),
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 holders of the Notes or the Residual Interest;
(c) the
appointment pursuant to the Indenture of a successor Indenture Trustee or the
consent to the assignment by the Indenture Trustee of its obligations under
the
Indenture or this Agreement; and
(d) consenting
to the Administrator taking any of the actions described in clauses (a) through
(c) above.
Section
5.4 Action
upon Direction by the Holder of the Residual Interest with Respect to Certain
Matters.
(a) The
Owner
Trustee on behalf of the Issuer will not execute an amendment to the Sale and
Servicing Agreement, the Indenture or the Administration Agreement that would
materially adversely affect the holder of the Residual Interest without the
consent of such holder.
(b) The
Owner
Trustee will not (a) remove the Servicer or appoint a successor Servicer under
Article VII of the Sale and Servicing Agreement, (b) remove the Administrator
under Section 5.1 of the Administration Agreement or (c) appoint a successor
Administrator pursuant to Section 5.2 of the Administration Agreement unless
(i)
there is an Event of Servicing Termination subsequent to the payment in full
of
the Notes and (ii) the holder of the Residual Interest directs the Owner Trustee
to take such action.
Section
5.5 Action
with Respect to Bankruptcy.
The Owner Trustee may not commence a voluntary proceeding in bankruptcy relating
to the Issuer unless the Notes have been paid in full and the holder of the
Residual Interest approves of such commencement in advance and delivers to
the
Owner Trustee a certificate certifying that it reasonably believes that the
Issuer is insolvent.
Section
5.6 Action
upon Instruction.
(a) The
Owner
Trustee will not be required to take any action under any Basic 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, is contrary
to any Basic Document or is contrary to law.
(b) If
(i)
the Owner Trustee is unsure as to the application of any provision of any Basic
Document, (ii) any provision of any Basic Document is, or appears to be, in
conflict with any other applicable provision, (iii) 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 or (iv) the Owner Trustee is unable to decide between
alternative courses of action permitted or required by any Basic Document,
the
Owner Trustee may, and with respect to clause (iv) will, notify the
Administrator requesting instruction and, to the extent that the Owner Trustee
acts or refrains from acting in good faith in accordance
11
with
any
such instruction received, the Owner Trustee will not be liable to any Person
on
account of such action or inaction. If the Owner Trustee does not receive
appropriate instruction within 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 inconsistent with the Basic Documents, as it deems
to be in the best interests of the holder of the Residual Interest, and will
have no liability to any Person for such action or inaction.
Section
5.7 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
Trust
Property, or to otherwise take or refrain from taking any action under, or
in
connection with, any document contemplated by this Agreement to which the Owner
Trustee or the Issuer is a party, except as provided by this Agreement or in
any
document or instruction received by the Owner Trustee pursuant to Section 5.6.
No implied duties or obligations will be read into any Basic Document against
the Owner Trustee. The Owner Trustee has no responsibility for filing any
financing statements or continuation statements or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it under
this Agreement or to prepare or file any Securities and Exchange Commission
filing for the Issuer or to record any Basic Document. The Owner Trustee
nevertheless agrees that it will promptly take, at its own cost and expense,
all
action as may be necessary to discharge any lien (other than the lien of the
Indenture) on any part of the Trust Property that results from actions by,
or
claims against, the Owner Trustee that are not related to the ownership or
the
administration of the Trust Property.
Section
5.8 No
Action Except Under Specified Documents or Instructions.
The Owner Trustee will not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Property 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 Basic 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 5.6. The
Depositor will not direct the Owner Trustee to take any action that would
violate this Section 5.8.
Section
5.9 Prohibition
on Certain Actions.
The Owner Trustee will not take any action (a) that is inconsistent with the
purposes of the Issuer set forth in Section 2.3 or (b) that, to the knowledge
of
the Owner Trustee, would (i) cause any Class of Notes not be treated as
indebtedness for U.S. federal income or Applicable Tax State income or franchise
tax purposes, (ii) be deemed to cause a sale or exchange of the Notes for
purposes of Section 1001 of the Code (unless no gain or loss would be recognized
on such deemed sale or exchange for U.S. federal income tax purposes) or (iii)
cause the Issuer or any portion thereof to be taxable as an association (or
publicly traded partnership) taxable as a corporation for U.S. federal income
or
Applicable Tax State income or franchise tax purposes. The Administrator will
not direct the Owner Trustee to take action that would violate this Section
5.9.
Section
5.10 Audits
of the Owner Trustee.
The Owner Trustee agrees that, with reasonable prior notice, it will permit
any
authorized representative of the Servicer or the Administrator, during the
Owner
Trustee’s normal business hours, to examine and audit the books of account,
records, reports and other documents and materials of the Owner Trustee
12
relating
to (a) the performance of the Owner Trustee’s obligations under this Agreement,
(b) any payments of fees and expenses of the Owner Trustee in connection with
such performance and (c) any claim made by the Owner Trustee under this
Agreement. In addition, the Owner Trustee will permit such representatives
to
make copies and extracts of any such books and records and to discuss the same
with the Owner Trustee’s officers and employees. Each of the Servicer and the
Administrator will, and will cause its authorized representatives to, hold
in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Servicer or the Administrator,
as
the case may be, may reasonably determine that such disclosure is consistent
with its obligations under this Agreement. The Owner Trustee will maintain
all
such pertinent books, records, reports and other documents and materials for
a
period of 2 years after the termination of its obligations under this
Agreement.
Section
5.11 Furnishing
of Documents.
Upon request from the holder of the Residual Interest, the Owner Trustee will
furnish to such holder copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
Section
5.12 ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
Notwithstanding anything to the contrary in any Basic Document, the Owner
Trustee will not be required to execute, deliver or certify on behalf of the
Issuer, the Servicer, the Depositor or any other Person any filings,
certificates, affidavits or other instruments required by the Securities and
Exchange Commission or required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. However,
any entity executing, delivering or certifying such filings, certificates,
affidavits or other instruments required by the Securities and Exchange
Commission or required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 on behalf of the
Issuer may request, at its option, such subcertifications, including any
assessments of compliance required from the Owner Trustee as it may deem
necessary to provide such certifications and the Owner Trustee will reasonably
comply with such request.
Section
5.13 Maintenance
of Licenses.
The
Owner Trustee will obtain and maintain any licenses that the Administrator
informs the Owner Trustee are required to be obtained or maintained by the
Owner
Trustee under the laws of any State in connection with the Owner Trustee’s
duties and obligations under the Basic Documents.
ARTICLE VI
REGARDING
THE OWNER TRUSTEE
Section
6.1 Acceptance
of Trusts and Duties.
The Owner Trustee accepts the trusts created by this Agreement and agrees to
perform its duties under this Agreement with respect to such trusts but only
in
accordance with this Agreement. The Owner Trustee also agrees to distribute
all
monies actually received by it constituting part of the Trust Property in
accordance with the Basic Documents. The Owner Trustee will not be liable under
any Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence (except for errors in judgment) or (ii)
if
any representation or warranty in Section 6.2 is not true and correct as of
the
Closing Date. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
13
(a) 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 Noteholders of the
Controlling Class, the Indenture Trustee, the Depositor, the holder of the
Residual Interest, the Administrator or the Servicer;
(b) no
Basic
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
under any Basic 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;
(c) the
Owner
Trustee will not 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 to the holder of the Residual Interest;
(d) the
Owner
Trustee will not be responsible for (i) the validity or sufficiency of this
Agreement, (ii) the due execution of this Agreement by the Depositor, (iii)
the
form, character, genuineness, sufficiency, value or validity of any of the
Trust
Property or (iv) the validity or sufficiency of the other Basic Documents,
the
Notes, any Receivable or any related documents, and the Owner Trustee will
in no
event assume or incur any liability, duty or obligation to any Noteholder,
the
Depositor or the holder of the Residual Interest, other than as provided for
in
the Basic Documents;
(e) the
Owner
Trustee will not be liable for the default or misconduct of the Servicer, the
Administrator, the Depositor, the holder of the Residual Interest or the
Indenture Trustee under any of the Basic Documents or otherwise and the Owner
Trustee will have no obligation or liability to perform the obligations of
the
Issuer under the 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;
(f) the
Owner
Trustee will be under no obligation to exercise any of the rights or powers
vested in it by this Agreement or, at the request, order or direction of the
Depositor, to institute, conduct or defend any litigation under this Agreement
or in relation to any Basic Document or otherwise unless the Depositor has
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses, losses, damages, claims and liabilities that may be
incurred by the Owner Trustee. The right of the Owner Trustee to perform any
discretionary act enumerated in any Basic Document will not be construed as
a
duty; and
(g) the
Owner
Trustee will not be responsible or liable for (i) the legality, validity and
enforceability of any Receivable, (ii) 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, (iii) the sufficiency of the
Trust Property or the ability of the Trust Property to generate the amounts
necessary to make payments to the Noteholders under the Indenture or
distributions to the holder of the Residual Interest under this Agreement,
(iv)
the accuracy of any representation or warranty made under any Basic Document
(other than the representations and warranties made in Section 6.2) or (v)
any
action of the Indenture Trustee, the Administrator or the Servicer or any
subservicer taken in the name of the Owner Trustee.
14
Section
6.2 Representations
and Warranties of the Owner Trustee.
The Owner Trustee represents and warrants to the Depositor as of the Closing
Date:
(a) Organization
and Qualification.
The
Owner Trustee is duly formed and is validly existing as a national banking
association under the laws of the State of Delaware. The Owner Trustee is duly
qualified as a national banking association in good standing and has obtained
all necessary licenses and approvals in all jurisdictions in which the ownership
or lease of its properties or the conduct of its activities requires such
qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals would not reasonably be expected to have
a
material adverse effect on the Owner Trustee’s ability to perform its
obligations under this Agreement.
(b) Power,
Authorization and Enforceability.
The
Owner Trustee has the power and authority to execute deliver and perform the
terms this Agreement. The Owner Trustee has authorized the execution, delivery
and performance of the terms of this Agreement. This Agreement is the legal,
valid and binding obligation of the Owner Trustee enforceable against the Owner
Trustee, except as may be limited by insolvency, bankruptcy, reorganization
or
other laws relating to the enforcement of creditors’ rights or by general
equitable principles.
(c) No
Conflicts and No Violation.
The
execution and delivery by the Owner Trustee of this Agreement, the consummation
by the Owner Trustee of the transactions contemplated by this Agreement and
the
compliance by the Owner Trustee with this Agreement will not (i) violate any
federal or 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
(ii)
conflict with, result in a breach of, or constitute (with or without notice
or
lapse of time or both) a default under its charter documents or by-laws or
any
indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Owner Trustee is a debtor or guarantor
or (iii) violate any law or, to the Owner Trustee’s knowledge, any order, rule,
or regulation applicable to the Owner Trustee of any court or of any federal
or
State regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Owner Trustee or its properties,
in
each case which conflict, breach, default, lien, or violation would reasonably
be expected to have a material adverse effect on the Owner Trustee’s ability to
perform its obligations under this Agreement.
(d) No
Proceedings.
To the
Owner Trustee’s knowledge, there are no proceedings or investigations pending or
overtly threatened in writing, before any court, regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over the
Owner
Trustee or its properties: (i) asserting the invalidity of this Agreement (ii)
seeking to prevent the issuance of the Notes or the consummation of any of
the
transactions contemplated by any of the Basic Documents, (iii) seeking any
determination or ruling that would reasonably be expected to have a material
adverse affect on the Owner Trustee’s ability to perform its obligations under,
or the validity or enforceability of, this Agreement.
(e) Banking
Association.
The
Owner Trustee is a banking association satisfying Section 3807(a) of the
Delaware Statutory Trust Act.
15
(f) Information
Provided by the Owner Trustee.
The
information provided by the Owner Trustee in any certificate delivered by a
Responsible Person of the Owner Trustee is true and correct in all material
respects.
Section
6.3 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 believed by it to be genuine that appears on its face to be properly
executed and 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 in this Agreement, the Owner Trustee may for all purposes of this
Agreement rely on a certificate, signed by the president or any vice president
or by the treasurer or other Responsible 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 under this Agreement and in the
performance of its duties and obligations under the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them and will not be liable for the conduct
or misconduct of such agents or attorneys if the Owner Trustee selects such
agents or attorneys with reasonable care and (ii) may consult with counsel,
accountants and other skilled Persons whom the Owner Trustee selects with
reasonable care and employs. The Owner Trustee will not be liable for anything
it does, suffers or omits to do in good faith in accordance with the written
opinion or advice of any such counsel, accountants or other such Persons that
is
not contrary to any Basic Document.
Section
6.4 Not
Acting in Individual Capacity.
Except as provided in this Article VI, in accepting the trusts created by this
Agreement, U.S. Bank Trust National Association acts solely as Owner Trustee
under this Agreement and not in its individual capacity. All Persons having
any
claim against the Owner Trustee by reason of the transactions contemplated
by
any Basic Document will look only to the Trust Property for payment or
satisfaction thereof. However, the Owner Trustee will be responsible for any
breach of its representations and warranties made in Section 6.2 and the
validity of its signature on any certificate of authentication of the Owner
Trustee.
Section
6.5 U.S.
Bank Trust May Own Notes.
U.S. Bank Trust, in its individual or any other capacity, may become the owner
or pledgee of Notes and may deal with the Depositor, the holder of the Residual
Interest, the Servicer, the Administrator and the Indenture Trustee in banking
transactions with the same rights as it would have if it were not the Owner
Trustee.
Section
6.6 Duty
to Update Disclosure.
The Owner Trustee will notify and provide information, and certify such
information in an Officer's Certificate, to the Depositor upon any event or
condition relating to the Owner Trustee or actions taken by the Owner Trustee
16
that
(A)
(i) is required to be disclosed by the Depositor under Item 2 (the institution
of, material developments in, or termination of legal proceedings against U.S.
Bank Trust that are material to Noteholders) of Form 10-D under the Exchange
Act
within 5 days of such occurrence or (ii) the Depositor reasonably requests
of
the Owner Trustee that the Depositor, in good faith, believes is necessary
to
comply with Regulation AB within 5 days of request or (B) (i) is required to
be
disclosed under Item 6.02 (resignation, removal, replacement or substitution
of
U.S. Bank Trust as Owner Trustee) of Form 8-K under the Exchange Act within
2
days of a Responsible Person of the Owner Trustee becoming aware of such
occurrence or (ii) causes the information provided by the Owner Trustee in
any
certificate delivered by a Responsible Person of the Owner Trustee to be untrue
or incorrect in any material respect or is necessary to make the statements
provided by the Owner Trustee in light of the circumstances in which they were
made not misleading within 5 days of a Responsible Person of the Owner Trustee
becoming aware thereof.
ARTICLE
VII
COMPENSATION
AND INDEMNIFICATION OF THE OWNER TRUSTEE;
ORGANIZATIONAL
EXPENSES
Section
7.1 Owner
Trustee’s Fees and Expenses.
The Owner Trustee will be entitled to receive, as compensation for its services
under this Agreement, such fees as have been separately agreed upon by the
Administrator and the Owner Trustee. The Owner Trustee will also be entitled
to
reimbursement for all reasonable out-of-pocket expenses incurred or made by
the
Owner Trustee in performing its rights and duties under this Agreement,
including the reasonable compensation, expenses and disbursements of the Owner
Trustee’s agents, counsel, accountants and experts, but excluding any expenses
incurred by the Owner Trustee through the Owner Trustee’s own willful
misconduct, bad faith or negligence (other than errors in
judgment).
Section
7.2 Indemnification
of the Owner Trustee.
(a) The
Depositor will, or will cause the Administrator to, indemnify, defend and hold
harmless the Owner Trustee, and its respective officers, directors, employees
and agents, from and against any and all costs, expenses, losses, damages,
claims and liabilities (including the reasonable compensation, expenses and
disbursements of the Owner Trustee’s agents, counsel, accountants and experts)
incurred by it in connection with the administration of and the performance
of
its duties under this Agreement, including the costs and expenses of defending
itself against any loss, damage, claim or liability incurred by it in connection
with the exercise or performance of any of its powers or duties under the
Indenture, but excluding any cost, expense, loss, damage, claim or liability
(i)
incurred by the Owner Trustee through the Owner Trustee’s own willful
misconduct, bad faith or negligence (other than errors in judgment) or (ii)
arising from the inaccuracy of any representation or warranty contained in
Section 6.2.
(b) Promptly
upon receipt by the Owner Trustee, or any of its officers, directors, employees
and agents (each, an “Indemnified
Person”),
of
notice of the commencement of any Proceeding against any such Indemnified
Person, such Indemnified Person will, if a claim in respect of such Proceeding
is to be made under Section 7.2(a), notify the Depositor and the Administrator
of the commencement of such Proceeding. The Depositor, or, if Depositor so
causes, the Administrator, may participate in and assume the defense and
settlement of any such Proceeding at its expense, and no settlement of such
Proceeding may be made without the
17
approval
of the Depositor or the Administrator, as applicable, and such Indemnified
Person, which approvals will not be unreasonably withheld, delayed or
conditioned. After notice from the Depositor or the Administrator, as
applicable, to the Indemnified Person of the intention of the Depositor or
the
Administrator, as applicable, to assume the defense of such Proceeding with
counsel reasonably satisfactory to the Indemnified Person, and so long as the
Depositor or the Administrator, as applicable, so assumes the defense of such
Proceeding in a manner reasonably satisfactory to the Indemnified Person,
neither the Depositor nor the Administrator will be liable for any legal
expenses of counsel to the Indemnified Person unless there is a conflict between
the interests of the Depositor or the Administrator, as applicable, on one
hand,
and an Indemnified Person, on the other hand, in which case the Depositor,
or,
if Depositor so causes, the Administrator, will pay for the separate counsel
to
the Indemnified Person.
(c) The
Depositor’s obligations under this Section 7.2 are obligations solely of the
Depositor and do not constitute a claim against the Depositor to the extent
that
the Depositor does not have funds sufficient to make payment of such
obligations. The Owner Trustee, by entering into or accepting this Agreement,
acknowledges and agrees that it has no right, title or interest in or to the
Other Assets of the Depositor. Notwithstanding the preceding sentence, if the
Owner Trustee either (i) asserts an interest or claim to, or benefit from,
the
Other Assets or (ii) is deemed to have any such interest, claim to, or benefit
in or from the Other Assets, whether by operation of law, legal process,
pursuant to insolvency laws or otherwise (including by virtue of Section 1111(b)
of the Bankruptcy Code), then the Owner Trustee further acknowledges and agrees
that any such interest, claim or benefit in or from the Other Assets is
expressly subordinated to the indefeasible payment in full of the other
obligations and liabilities, which, under the relevant documents relating to
the
securitization or conveyance of such Other Assets, are entitled to be paid
from,
entitled to the benefits of, or otherwise secured by such Other Assets (whether
or not any such entitlement or security interest is legally perfected or
otherwise entitled to a priority of distributions or application under
applicable law, including insolvency laws, and whether or not asserted against
the Depositor), including the payment of post-petition interest on such other
obligations and liabilities. This subordination agreement is deemed a
subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. The Owner Trustee further acknowledges and agrees that no adequate remedy
at law exists for a breach of this Section 7.2(c) and this Section 7.2(c) may
be
enforced by an action for specific performance. This Section 7.2(c) is for
the
third party benefit of the holders of such other obligations and liabilities
and
will survive the termination of this Agreement.
Section
7.3 Organizational
Expenses of the Issuer.
The Depositor will, or will cause the Administrator to, pay the organizational
expenses of the Issuer as they may arise or, upon the request of the Owner
Trustee, the Depositor will, or will cause the Administrator to, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
Section
7.4 Certain
Expenses of the Indenture Trustee.
The Depositor will reimburse the Indenture Trustee and any successor Indenture
Trustee for any expenses associated with the replacement of the Indenture
Trustee pursuant to Section 6.8 of the Indenture to the extent such amounts
have
not been otherwise paid pursuant to Section 8.2 of the
Indenture.
18
ARTICLE
VIII
TERMINATION
Section
8.1 Termination
of Trust Agreement.
(a) This
Agreement (other than the provisions of Article VII) will terminate and be
of no
further force or effect and the Issuer will terminate, wind up and dissolve,
upon the earlier to occur of (i) the last remaining Receivable is paid in full,
settled, sold or charged off and any amounts received are applied or (ii) the
payment to the Noteholders and any other holders of securities issued under
any
supplemental indentures or amendments to this Agreement, the Indenture Trustee
and the Owner Trustee of all amounts required to be paid to them pursuant to
the
Indenture, the Sale and Servicing Agreement and Article IV. Any Insolvency
Event, liquidation or dissolution with respect to the Depositor will not (A)
operate to terminate this Agreement or the Issuer, (B) entitle the Depositor’s
legal representatives 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
the Trust Property or (C) otherwise affect the rights, obligations and
liabilities of the parties to this Agreement. Upon dissolution of the Issuer,
the Owner Trustee will wind up the activities and affairs of the Issuer as
required by Section 3808 of the Delaware Statutory Trust Act.
(b) The
Depositor may not revoke or terminate the Issuer, unless it is the holder of
100% of the Residual Interest and in accordance with Section
8.1(a).
(c) Upon
termination of the Issuer any remaining Trust Property will be distributed
to
the holder of the Residual Interest, and the Owner Trustee will cause the
Certificate of Trust to be cancelled by preparing, executing and filing a
certificate of cancellation with the Secretary of State of the State of Delaware
in accordance with Section 3810(c) of the Delaware Statutory Trust Act or as
otherwise required by the Delaware Statutory Trust Act. Upon the filing of
such
certificate of cancellation, the Owner Trustee’s services under this Agreement
will simultaneously terminate. The Owner Trustee will deliver a file-stamped
copy of such certificate of cancellation to the Administrator promptly upon
such
document becoming available following such filing.
ARTICLE
IX
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
9.1 Eligibility
Requirements for the Owner Trustee.
(a) The
Owner
Trustee must (i) be 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 long-term debt rating of investment grade by each
of
the Rating Agencies or be otherwise acceptable to the Rating Agencies. If such
corporation publishes reports of condition at least annually, pursuant to law
or
to the requirements of its supervising or examining authority, then for the
purpose of this Section 9.1, 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
19
the
Owner
Trustee ceases to be eligible in accordance with this Section 9.1, it must
resign immediately in the manner and with the effect specified in Section
9.2.
(b) The
Owner
Trustee must satisfy Section 3807(a) of the Delaware Statutory Trust Act.
Section
9.2 Resignation
or Removal of the Owner Trustee.
(a) The
Owner
Trustee may resign and be discharged from the trusts created by this Agreement
by giving notice to the Depositor and the Administrator.
(b) The
Administrator may remove the Owner Trustee upon notice to the Owner Trustee
and
will remove the Owner Trustee if:
(i)
the
Owner
Trustee ceases to be eligible in accordance with Section 9.1;
(ii) the
Owner
Trustee is legally unable to act; or
(iii) an
Insolvency Event with respect to the Owner Trustee has occurred and is
continuing.
(c) If
the
Owner Trustee resigns or the Administrator removes the Owner Trustee, the
Administrator will promptly (i) appoint a successor Owner Trustee, by written
instrument, in duplicate and (ii) deliver one copy of such instrument to the
outgoing Owner Trustee and one copy to the successor Owner Trustee. The Owner
Trustee will be entitled to payment through the date of its resignation or
removal from distributions made under Section 8.2 of the Indenture. If no
successor Owner Trustee is appointed and has accepted such appointment within
30
days after the Administrator’s receipt of notice of resignation or removal of
the Owner Trustee, the outgoing Owner Trustee may petition any court of
competent jurisdiction for the appointment of a successor Owner Trustee. The
right to appoint or to petition for the appointment of any such successor Owner
Trustee does not relieve the outgoing Owner Trustee from any obligations
otherwise imposed on it under the Basic Documents until the appointment of
the
successor Owner Trustee has become effective.
(d) No
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to this Section 9.2 will become effective until (i) the
successor Owner Trustee accepts its appointment as the Owner Trustee pursuant
to
Section 9.3(a) and (ii) the successor Owner Trustee files the certificate of
amendment to the Certificate of Trust referred to in Section 9.3(d). The
Administrator will notify the Depositor, the Indenture Trustee and the Rating
Agencies of any resignation or removal of the Owner Trustee.
Section
9.3 Successor
Owner Trustee.
(a) Any
successor Owner Trustee appointed pursuant to Section 9.2 must execute 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 9.2(d),
such successor Owner
20
Trustee,
without any further act, will become fully vested with all the rights, powers,
duties, and obligations of its predecessor under this Agreement. 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 may reasonably
be required to vest and confirm 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
9.3
unless, at the time of such acceptance, such successor Owner Trustee is eligible
pursuant to Section 9.1.
(c) Upon
the
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.3, the Administrator will notify the Depositor, the Indenture Trustee, the
Noteholders and the Rating Agencies of such successor Owner
Trustee.
(d) Any
successor Owner Trustee appointed under this Agreement will promptly file a
certificate of amendment to the Certificate of Trust with the Secretary of
State
of the State of Delaware identifying the name and principal place of business
of
such successor Owner Trustee in the State of Delaware. The successor Owner
Trustee will deliver a file-stamped copy of such certificate of amendment to
the
Administrator promptly upon such document becoming available following such
filing.
Section
9.4 Merger
or Consolidation of the Owner Trustee.
Any Person (a) into which the Owner Trustee may be merged or converted or with
which it may be consolidated, (b) resulting from any merger, conversion or
consolidation to which the Owner Trustee is a party or (c) succeeding to all
or
substantially all of the corporate trust business of the Owner Trustee will,
provided such corporation is eligible pursuant to Section 9.1, be the successor
of the Owner Trustee under this Agreement without the execution or filing of
any
document or any further act (except as required under this Section 9.4),
provided that the Owner Trustee (i) notifies the Rating Agencies of such merger
or consolidation within 15 Business Days of such event and (ii) files a
certificate of amendment to the Certificate of Trust as required by Section
9.3(d).
Section
9.5 Appointment
of Separate Trustee or Co-Trustee.
(a) Notwithstanding
any other provision of this Agreement, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Property or
any
Financed Vehicle may 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 the Owner Trustee to act as a separate
trustee or as separate trustees, or as co-trustee, jointly with the Owner
Trustee, of all or any part of the Issuer, and to vest in such Person, in such
capacity, such title to the Trust Property, or any part thereof, and, subject
to
this Section 9.5, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee consider necessary or desirable. If the
Administrator has not joined in such appointment within 15 Business Days of
its
receipt of a request so to do, the Owner Trustee will have the power to make
such appointment. No separate trustee or co-trustee under this Agreement will
be
required
21
to
meet
the terms of eligibility as a successor trustee pursuant to Section 9.1 and
no
notice of the appointment of any separate trustee or co-trustee is
required.
(b) Each
separate trustee and co-trustee will, to the extent permitted by law, be
appointed and act subject to the following:
(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 Trust Property or any portion thereof in any such jurisdiction)
may 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 accept the resignation
of
or remove any separate trustee or co-trustee.
(c) 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 must refer to this Agreement and the conditions
of this Article IX. 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 in such instrument, subject to this Agreement.
The Owner Trustee will keep a copy of each such instrument in its files and
will
deliver a copy of each such instrument to the Administrator.
(d) Any
separate trustee or co-trustee may 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 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
9.6 Compliance
with Delaware Statutory Trust Act.
Notwithstanding anything in this Agreement to the contrary, the Issuer must
have
at least one trustee that meets the requirements of Section 3807(a) of the
Delaware Statutory Trust Act.
22
ARTICLE
X
MISCELLANEOUS
Section
10.1 Supplements
and Amendments.
(a) This
Agreement may be amended by the holder of the Residual Interest and the Owner
Trustee, with prior notice to the Rating Agencies, without the consent of any
of
the Noteholders, for the purpose of curing any ambiguity or correcting or
supplementing any provisions in this Agreement inconsistent with any other
provision of this Agreement.
(b) This
Agreement may be amended by the holder of the Residual Interest and the Owner
Trustee, with prior notice to the Rating Agencies, without the consent of any
of
the Noteholders, for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of this Agreement or issuing
securities in exchange for all or a portion of the Residual Interest, subject
to
the following conditions:
(i)
such
holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not adversely affect in any
material respect the interest of any Noteholder;
(ii) such
holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to be
deemed sold or exchanged for purposes of Section 1001 of the Code, (B) cause
the
Issuer to be treated as an association or publicly traded partnership taxable
as
a corporation for U.S. federal income tax purposes, or (C) adversely affect
the
treatment of the Notes as debt for U.S. federal income tax purposes;
and
(iii) such
holder either delivers to the Indenture Trustee and the Owner Trustee (A) an
Opinion of Counsel to the effect that, after giving effect to such amendment,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any additional security or that the withholding tax
imposed will be no greater than the withholding tax imposed prior to such
amendment or (B) an Officer’s Certificate that states withholding is applicable
to payments on any such additional securities, the rate of withholding tax
required on such payments, and that such amounts will be withheld and remitted
to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.
(c) This
Agreement also may be amended by the holder of the Residual Interest and the
Owner Trustee for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement with prior notice
to the Rating Agencies, subject to the following conditions:
(i) (A)
the
Indenture Trustee, to the extent that its rights or obligations would be
affected by such amendment consents (which consent may not be unreasonably
withheld, delayed or conditioned) and (B) the Noteholders of
23
at
least
a majority of the Note Balance of the Notes Outstanding consent to such
amendment; and
(ii) such
holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to be
deemed sold or exchanged for purposes of Section 1001 of the Code, (B) cause
the
Issuer to be treated as an association or publicly traded partnership taxable
as
a corporation for U.S. federal income tax purposes, or (C) adversely affect
the
treatment of the Notes as debt for U.S. federal income tax purposes;
and
(iii) such
holder either delivers to the Indenture Trustee and the Owner Trustee (A) an
Opinion of Counsel to the effect that, after giving effect to such amendment,
there will be no withholding imposed under Sections 1441 or 1442 of the Code
in
respect of payments on any additional security as a result of such amendment
or
that the withholding tax imposed will be no greater than the withholding tax
imposed prior to such amendment or (B) an Officer’s Certificate that states
withholding is applicable to payments on any such additional securities, the
rate of withholding tax required on such amounts, and that such withheld amounts
are required to be remitted to the Internal Revenue Service in satisfaction
of
the requirements of Sections 1441 and 1442 of the Code.
However,
no amendment may (A) increase or reduce 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 Secured Parties or (B) reduce the percentage of the Note Balance of the
Notes Outstanding required to consent to any such amendment, in each case,
without the consent of all affected Noteholders.
(d) Promptly
after the execution of any such amendment or consent, the Owner Trustee will
notify the Indenture Trustee of the substance of such amendment or
consent.
(e) If
the
consent of the Noteholders or the Indenture Trustee is required under this
Section 10.1, they do not need to approve the particular form of any proposed
amendment or consent so long as their consent approves the substance of the
proposed amendment or consent. The manner of obtaining such consents will be
subject to such reasonable requirements as the Owner Trustee may
prescribe.
(f) Promptly
after the execution of any certificate of amendment to the Certificate of Trust,
the Owner Trustee will cause such amendment to be filed with the Secretary
of
State of the State of Delaware. The Owner Trustee will deliver a file-stamped
copy of such certificate of amendment to the Administrator promptly upon such
document becoming available following such filing.
(g) Before
the execution of any amendment to this Agreement or certificate of amendment
to
the Certificate of Trust, the Owner Trustee will be entitled to receive and
rely
upon an Opinion of Counsel delivered by the holder of the Residual Interest
to
the effect that the execution of such amendment or certificate of amendment,
as
applicable, is authorized or permitted by this Agreement. The Owner Trustee
may
enter into any such amendment or certificate of amendment that affects the
Owner
Trustee’s own rights, duties or immunities under this Agreement or
otherwise.
24
(h) In
connection with the execution of any amendment to this Agreement or any
amendment to any other agreement to which the Issuer is a party, the Owner
Trustee will be entitled to receive and rely upon an Opinion of Counsel
delivered by the holder of the Residual Interest 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 Issuer or the Owner Trustee, as the case may be, have been
satisfied.
Section
10.2 No
Legal Title to Trust Property in the Holder of the Residual
Interest.
The holder of the Residual Interest has no legal title to any part of the Trust
Property. The holder of the Residual Interest is entitled to receive
distributions with respect to its Residual Interest only in accordance with
Article VIII of the Indenture. No transfer, by operation of law or otherwise,
of
any right, title, or interest of the Depositor to and in the Residual Interest
in the Trust Property will operate to terminate this Agreement or the trusts
under this Agreement or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Property.
Section
10.3 Limitation
on Rights of Others.
Except for Sections 2.6, 7.2 and 10.1, this Agreement is solely for the benefit
of the Owner Trustee, the Depositor, the Administrator, the Servicer, the holder
of the Residual Interest and, to the extent provided in this Agreement, the
Indenture Trustee and the Secured Parties, and nothing in this Agreement (other
than Section 2.6), whether express or implied, will be construed to give to
any
other Person any legal or equitable right, remedy or claim in the Trust Property
or under or in respect of this Agreement or any covenants, conditions or
provisions contained in this Agreement.
Section
10.4 Notices.
(a) All
notices, requests, demands, consents, waivers or other communications to or
from
the parties to this Agreement must be in writing and will be deemed to have
been
given and made:
(i)
upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail;
(ii) in
the
case of a fax, when receipt is confirmed by telephone, reply email or reply
fax
from the recipient;
(iii) in
the
case of an email, when receipt is confirmed by telephone or reply email from
the
recipient; and
(iv) in
the
case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
25
Any
such
notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreement or
at
such other address as any party may designate by notice to the other
parties.
(b) Notices
to the Owner Trustee will be addressed to its Corporate Trust Office or to
such
other address designated by the Owner Trustee by notice to the
Depositor.
(c) Any
notice required or permitted to be mailed to a Noteholder must be sent by
overnight delivery, mailed by registered first class mail, postage prepaid,
or
sent by fax, to the address of such Person as shown in the Note Register. Any
notice so mailed within the time prescribed in this Agreement will be
conclusively presumed to have been properly given, whether or not the Noteholder
receives such notice.
Section
10.5 GOVERNING
LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF DELAWARE.
Section
10.6 WAIVER
OF
JURY TRIAL.
EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
Section
10.7 Severability.
If any of the covenants, agreements or terms of this Agreement is held invalid,
illegal or unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Agreement and will in no way affect
the
validity, legality or enforceability of the remaining Agreement or of the Notes
or the rights of the Noteholders.
Section
10.8 Counterparts.
This Agreement may be executed in any number of counterparts. Each counterpart
will be an original, and all counterparts will together constitute one and
the
same instrument.
Section
10.9 Headings.
The headings in this Agreement are included for convenience only and will not
affect the meaning or interpretation of this Agreement.
Section
10.10 No
Petition.
The Owner Trustee (not in its individual capacity but solely as Owner Trustee),
by entering into this Agreement, covenants and agrees that, before the date
that
is 1 year and 1 day after the payment in full of all securities issued by the
Depositor or the Issuer, it will not institute against, or join any other Person
in instituting against, the Depositor or the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, this Agreement or any of the Basic
Documents. This Section 10.10 will survive the resignation or removal of the
Owner Trustee under this Agreement and the termination of this
Agreement.
26
|
EXECUTED
BY:
|
|||
|
FORD
CREDIT AUTO RECEIVABLES TWO LLC,
|
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as
Depositor
|
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
Secretary
|
|||
|
U.S.
BANK TRUST NATIONAL ASSOCIATION,
|
|||
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as
Owner Trustee
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
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Name:
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Title:
Vice President
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EXHIBIT
A
FORM
OF
CERTIFICATE OF TRUST
AMENDED
AND RESTATED CERTIFICATE OF TRUST OF
This
Amended and Restated Certificate of Trust of Ford Credit Auto Owner Trust 2006-A
(the “Trust”)
is
being duly executed and filed by U.S. Bank Trust National Association, as owner
trustee (the “Owner
Trustee”),
to
form a statutory trust under the Delaware Statutory Trust Act (12 Delaware
Code,
§ 3801 et seq.)
(the
“Act”).
1.
Name.
The
name of the statutory trust formed hereby is Ford Credit Auto Owner Trust
2006-A.
2.
Owner
Trustee.
The
name and business address of the sole trustee of the Issuer in the State of
Delaware is U.S. Bank Trust National Association, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3.
Effective
Date.
This
Amended and Restated Certificate of Trust will be effective upon
filing.
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The
undersigned, being the sole trustee of the Issuer, have executed this Amended
and Restated Certificate of Trust as of the date first above written in
accordance with Section 3811(a)(2) of the Act.
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U.S.
BANK TRUST NATIONAL ASSOCIATION,
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not
in its individual capacity but solely as Owner Trustee under an Amended
and Restated Trust Agreement dated as of February 1, 2006
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By:
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Name:
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Title:
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