**Exhibit10.110**

 

 

 

FIRST INVESTORS AUTO FUNDING CORPORATION,as Depositor,

 

and

 

DEUTSCHE BANK TRUST COMPANY DELAWARE,as Owner Trustee

 

 

AMENDED AND RESTATED TRUST AGREEMENTDated as of November 20, 2003

 

 

 

----

 

TABLE OF CONTENTS

 
| **Article  I**                                                                       | **Definitions**                                   |   |
|--------------------------------------------------------------------------------------|---------------------------------------------------|--------|
|                                                                                 |                                              |   |
| **Section 1.1 Definitions.**                                                         |                                              |
| **Section 1.2  Other Definitional Provisions.**                                      |                                              |
|                                                                                 |                                              |   |
| **Article II**                                                                       | **Organization of  the Trust**                    |   |
|                                                                                 |                                              |   |
| **Section 2.1 Name.**                                                                |                                              |
| **Section 2.2 Office.**                                                              |                                              |
| **Section 2.3 Purposes  and Powers.**                                                |                                              |
| **Section 2.4  Appointment of Owner Trustee.**                                       |                                              |
| **Section 2.5  Organizational Matters.**                                             |                                              |
| **Section 2.6  Declaration of Trust.**                                               |                                              |
| **Section 2.7 Title  of Trust Property.**                                            |                                              |
| **Section 2.8 Situs of Trust.**                                                      |                                              |
| **Section  2.9 Representations and Warranties of the Depositor.**                    |                                              |
| **Section 2.10  Federal Income Tax Matters.**                                        |                                              |
|                                                                                 |                                              |   |
| **Article  III**                                                                     | **Trust  Certificates and Transfer of Interests** |   |
|                                                                                 |                                              |   |
| **Section 3.1 Ownership.**                                                           |                                              |
| **Section 3.2 The Certificate.**                                                     |                                              |
| **Section  3.3 Authentication of the Certificate.**                                  |                                              |
| **Section  3.4 Registration of the Certificate.**                                    |                                              |
| **Section 3.5 Mutilated, Destroyed, Lost or  Stolen Certificate.**                   |                                              |
| **Section 3.6  Appointment of Paying Agent.**                                        |                                              |
|                                                                                 |                                              |   |
| **Article IV**                                                                       | **Actions by Owner  Trustee**                     |   |
|                                                                                 |                                              |   |
| **Section  4.1 Prior Notice with Respect to Certain Matters.**                       |                                              |
| **Section  4.2 Action by Depositor with Respect to Certain Matters.**                |                                              |
| **Section  4.3 Action by Owner Trustee with Respect to Bankruptcy.**                 |                                              |
| **Section  4.4 Restrictions on Insurer’s Power.**                               |                                              |
|                                                                                 |                                              |   |
| **Article  V**                                                                       | **Application  of Trust Funds; Certain Duties**   |   |
|                                                                                 |                                              |   |
| **Section  5.1 Establishment of Depositor Account.**                                 |                                              |
| **Section 5.2  Application of Trust Funds.**                                         |                                              |
| **Section 5.3 Method of  Payment.**                                                  |                                              |
| **Section  5.4 No Segregation of Monies; No Interest.**                              |                                              |
|                                                                                 |                                              |   |
| **Article  VI**                                                                      | **Authority  and Duties of Owner Trustee**        |   |
|                                                                                 |                                              |   |
| **Section 6.1 General  Authority.**                                                  |                                              |
| **Section 6.2 General Duties.**                                                      |                                              |
| **Section 6.3 Action  Upon Instruction.**                                            |                                              |
| **Section  6.4 No Duties Except as Specified in this Agreement or in Instructions.** |                                              |
| **Section  6.5 No Action Except Under Specified Documents or Instructions.**         |                                              |
| **Section 6.6 Restrictions.**                                                        |                                              |

 

i

----

 
| **Article VII**                                                          | **Regarding The  Owner Trustee**                            |   |
|--------------------------------------------------------------------------|-------------------------------------------------------------|--------|
|                                                                     |                                                        |   |
| **Section  7.1 Acceptance of Trusts and Duties.**                        |                                                        |
| **Section 7.2  Furnishing of Documents.**                                |                                                        |
| **Section 7.3  Representations and Warranties.**                         |                                                        |
| **Section 7.4  Reliance; Advice of Counsel.**                            |                                                        |
| **Section  7.5 Not Acting in Individual Capacity.**                      |                                                        |
| **Section  7.6 Owner Trustee Not Liable for Contracts.**                 |                                                        |
| **Section 7.7  Owner Trustee May Own Notes.**                            |                                                        |
|                                                                     |                                                        |   |
| **Article  VIII**                                                        | **Compensation  of Owner Trustee**                          |   |
|                                                                     |                                                        |   |
| **Section  8.1 Owner Trustee’s Fees and Expenses.**                 |                                                        |
| **Section 8.2  Indemnification.**                                        |                                                        |
| **Section 8.3  Payments to the Owner Trustee.**                          |                                                        |
|                                                                     |                                                        |   |
| **Article  IX**                                                          | **Termination**                                             |   |
|                                                                     |                                                        |   |
| **Section 9.1  Termination of Trust Agreement.**                         |                                                        |
| **Section  9.2 Notification Regarding Bankruptcy of the Depositor.**     |                                                        |
|                                                                     |                                                        |   |
| **Article  X**                                                           | **Successor  Owner Trustees and Additional Owner Trustees** |   |
|                                                                     |                                                        |   |
| **Section  10.1 Eligibility Requirements for Owner Trustee.**            |                                                        |
| **Section  10.2 Resignation or Removal of Owner Trustee.**               |                                                        |
| **Section 10.3  Successor Owner Trustee.**                               |                                                        |
| **Section  10.4 Merger or Consolidation of Owner Trustee.**              |                                                        |
| **Section  10.5 Appointment of Co-Trustee or Separate Trustee.**         |                                                        |
|                                                                     |                                                        |   |
| **Article  XI**                                                          | **Miscellaneous**                                           |   |
|                                                                     |                                                        |   |
| **Section 11.1  Supplements and Amendments.**                            |                                                        |
| **Section  11.2 No Legal Title to Owner Trust Estate in the Depositor.** |                                                        |
| **Section  11.3 Limitation on Rights of Others.**                        |                                                        |
| **Section 11.4 Notices.**                                                |                                                        |
| **Section 11.5 Severability.**                                           |                                                        |
| **Section 11.6  Separate Counterparts.**                                 |                                                        |
| **Section 11.7  Successors and Assigns.**                                |                                                        |
| **Section 11.8  Covenants of the Depositor.**                            |                                                        |
| **Section 11.9 No Petition.**                                            |                                                        |
| **Section 11.10 Headings.**                                              |                                                        |
| **Section 11.11 Governing  Law.**                                        |                                                        |
| **Section  11.12 Amendment of Trust Agreement.**                         |                                                        |
| **Section 11.13  Owner Trustee Presumption.**                            |                                                        |
|                                                                     |                                                        |   |
|                                                                     |                                                        |   |
| Exhibit  A                                                               | Form  of Certificate                                        |   |
| Exhibit  B                                                               | Certificate  of Trust                                       |   |

 

ii

----

 

AMENDED AND RESTATED TRUST AGREEMENT, dated as ofNovember 20, 2003 (as amended, supplemented or otherwise modified and in effectfrom time to time, this “*Agreement*”), between FIRST INVESTORSAUTO FUNDING CORPORATION, a Delaware corporation, as depositor (the “*Depositor*”),and DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware banking corporation, (inits capacity as owner trustee and not in its individual capacity, the “*OwnerTrustee*”).

 

WHEREAS, the Depositor and the Owner Trustee haveentered into a Trust Agreement, dated as of November 12, 2003 (the “*OriginalTrust Agreement*”); and

 

WHEREAS, the Depositor and Owner Trustee desire toamend and restate the Original Trust Agreement in its entirety as providedherein.

 

NOW, THEREFORE, in consideration of the premises andmutual covenants herein contained and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, it is herebyagreed by and between the Depositor and the Owner Trustee that the OriginalTrust Agreement be amended and restated and replaced in its entirety asfollows:

 

# **ArticleIDefinitions**

# ** **

## **Section1.1**            **Definitions**.

##  

Except as otherwise specified herein or as the contextmay otherwise require, the following terms shall have the respective meaningsset forth below for all purposes of this Agreement.

 

Administrator:  First Investors Financial Services, Inc., orany successor administrator.

 

Affiliate:  With respect to any Person, any other Person directly orindirectly controlling, controlled by or under direct or indirect commoncontrol with such Person.  For purposesof this definition, “control” when used with respect to any Person shall meanthe power to direct the management and policies of such Person, directly orindirectly, whether through the ownership of voting securities, by contract orotherwise.

 

Business Day:  Any day other than a Saturday, a Sunday or aday on which banking institutions or trust companies in New York, New York,Wilmington, Delaware, Houston, Texas or Atlanta, Georgia are authorized orobligated by law, executive order or governmental decree to remain closed.

 

Certificate: A physical certificateevidencing the beneficial interest of the holder thereof in the Trust asspecified therein, substantially in the form of Exhibit A attachedhereto.

 

Certificate of Trust:  The Certificate of Trust attached hereto as ExhibitB filed with the Secretary of the State of Delaware on November 12, 2003for the Trust pursuant to Section 3810(a) of the Statutory Trust Act.

 

----

 

Certificate Register:  As defined in Section 3.4.

 

Certificate Registrar:  As defined in Section 3.4.

 

Code:  The Internal Revenue Code of 1986, as amended from time to time,and the Treasury Regulations promulgated thereunder.

 

Corporate Trust Office:  The principal office of the Owner Trustee atwhich at any particular time its corporate trust business shall beadministered, which office at the date of execution of this Agreement islocated at, 1011 Centre Road, Suite 200, Wilmington Delaware 19805-1266,Attention: Corporate Trust, or at such other address as the Owner Trustee maydesignate from time to time by notice to the Depositor, or the principalcorporate trust office of any successor Owner Trustee at the address designatedby such successor Owner Trustee by notice to the Depositor.

 

Depositor:  First Investors Auto Funding Corporation, a Delaware corporation,in its capacity as depositor under this Agreement, and its successors.

 

Depositor Account:  As defined in Section 5.1.

 

ERISA:  The Employee Retirement Income Security Act of 1974, as amended.

 

Exchange Act:  The Securities Exchange Act of 1934, asamended.

 

Expenses:  As defined in Section 8.2(a) and shall include amounts inconnection with all liabilities, losses, damages, taxes, claims, actions andsuits referred to in such section.

 

Final Note Payment Date:  April 20, 2011.

 

Indemnified Parties:  As defined in Section 8.2(a).

 

Indenture:  The Indenture, dated as of November 20, 2002, between the Trustand Wells Fargo Bank Minnesota, National Association, a national bankingassociation, as indenture trustee and as custodian, as amended, supplemented orotherwise modified and in effect from time to time.

 

Independent:  As defined in the Indenture.

 

Initial Pool Balance:  $114,726,890.91 .

 

Insurer:  MBIA Insurance Corporation, a New York stock insurance company,and its successors.

 

Notes:  As defined in the Indenture.

 

Owner Trust Estate:  All right, title and interest of the Trustin, to and under the property and rights assigned to the Trust pursuant toArticle II of the Sale and Allocation Agreement and all monies deposited fromtime to time in the Collection Account, the Note Payment Accounts, thePrefunding Account and the Reserve Account.

 

2

----

 

Owner Trustee:  Deutsche Bank Trust Company Delaware, aDelaware banking corporation, not in its individual capacity but solely asOwner Trustee under this Agreement, and any successor Owner Trustee under thisAgreement.

 

Paying Agent:  The Owner Trustee, Deutsche Bank TrustCompany Americas, or any other Person appointed as Paying Agent with respect tothe Certificate in accordance with Section 3.6.

 

Prepayment Date:  The Payment Date specified by the Servicerpursuant to Section 9.3(a).

 

Record Date:  With respect to any Payment Date orPrepayment Date, the close of business on the Business Day immediatelypreceding such Payment Date or Prepayment Date.

 

Responsible Officer:  As defined in the Indenture.

 

Sale and Allocation Agreement:  The Sale and Allocation Agreement, dated asof the date hereof, by and among the Depositor, the Indenture Trustee, theSecurities Intermediary,  the Trust andthe Servicer, as amended, supplemented or otherwise modified and in effect fromtime to time.

 

Secretary of State:  The Secretary of State of the State ofDelaware.

 

Securities Act:  The Securities Act of 1933, as amended.

 

Statutory Trust Act:  Chapter 38 of Title 12 of the Delaware Code,12 Del. Code section 3801 et seq., as the same may be amended, supplemented orotherwise modified and in effect from time to time.

 

Transfer:  To sell, transfer, assign, participate, pledge or otherwisedispose of.

 

Treasury Regulations:  Regulations, including proposed or temporaryregulations, promulgated under the Code. All references herein to specific provisions of proposed or temporaryTreasury Regulations shall include analogous provisions of final TreasuryRegulations or other successor Treasury Regulations.

 

Trust:  The Delaware statutory trust established by this Agreement.

 

## **Section 1.2**            **OtherDefinitional Provisions**.

##  

### (a)           Capitalizedterms used herein and not otherwise defined herein have the meanings assignedto them in the Sale and Allocation Agreement or, if not defined therein, in theIndenture.

###  

### (b)           Allterms defined in this Agreement shall have the defined meanings when used inany certificate or other document made or delivered pursuant hereto unlessotherwise defined therein.

###  

### (c)           Asused in this Agreement and in any certificate or other documents made ordelivered pursuant hereto or thereto, accounting terms not defined in this

###  

3

----

 

### Agreement or inany such certificate or other document, and accounting terms partly defined inthis Agreement or in any such certificate or other document to the extent notdefined, shall have the respective meanings assigned to them under generallyaccepted accounting principles.  To theextent that the definitions of accounting terms in this Agreement or in anysuch certificate or other document are inconsistent with the meanings of suchterms under generally accepted accounting principles, the definitions containedin this Agreement or in any such certificate or other document shall control.

###  

### (d)           Thewords “hereof,” “herein” and “hereunder” and words of similar import when usedin this Agreement shall refer to this Agreement as a whole and not to anyparticular provision of this Agreement. Article, Section and Exhibit referencescontained in this Agreement are references to Articles, Sections and Exhibitsin or to this Agreement unless otherwise specified.  The term “including” shall mean “including without limitation.”

###  

### (e)           Thedefinitions contained in this Agreement are applicable to the singular as wellas the plural forms of such terms and to the masculine as well as to thefeminine and neuter genders of such terms.

###  

### (f)            Anyagreement, instrument or statute defined or referred to herein or in anyinstrument or certificate delivered in connection herewith means suchagreement, instrument or statute as from time to time amended, modified orsupplemented and includes (in the case of agreements or instruments) referencesto all attachments thereto and instruments incorporated therein.  References to a Person are also to itspermitted successors and assigns.

###  

# **Article IIOrganization of the Trust**

# ** **

## **Section2.1**            **Name**.

##  

The name of the Trust shall be “First Investors AutoOwner Trust 2003-A,” in which name the Trust and the Owner Trustee shall havepower and authority and each is hereby authorized and empowered to conduct thebusiness of the Trust, make and execute contracts and other instruments onbehalf of the Trust and sue and be sued.

 

## **Section2.2**            **Office**.

##  

The office of the Trust shall be in care of the OwnerTrustee at the Corporate Trust Office or at such other address in the State ofDelaware as the Owner Trustee may designate by written notice to the Depositor.

 

## **Section 2.3**            **Purposesand Powers**.

##  

The purpose of the Trust is, and the Trust shall havepower and authority and is hereby authorized and empowered, without the needfor further action on the part of the Trust, and the Owner Trustee shall havepower and authority and is hereby authorized and empowered, in the name and onbehalf of the Trust, to do or cause to be done all acts and things necessary,appropriate or convenient to cause the Trust, to engage solely in the followingactivities:

 

4

----

 

### (a)           toexecute, issue and deliver the Notes pursuant to the Indenture, to execute,authenticate, issue and deliver the Certificate pursuant to this Agreement, andto sell Class A Notes;

###  

### (b)           touse the proceeds of the sale of the Class A Notes to fund the Reserve Account andthe Prefunding Account, to pay the organizational, start-up and transactionalexpenses of the Trust and to pay the balance to the Depositor pursuant to theSale and Allocation Agreement in consideration for the purchase of Contracts;

###  

### (c)           topay interest on (with respect to the Class A Notes) and principal of the Notesand amounts distributable with respect to the Certificate;

###  

### (d)           toassign, grant, transfer, pledge, mortgage and convey the Collateral to theIndenture Trustee pursuant to the Indenture;

###  

### (e)           toenter into, execute, deliver and perform its obligations under the TransactionDocuments to which it is to be a party;

###  

### (f)            subjectto compliance with the Transaction Documents, to engage in such otheractivities as may be required in connection with conservation of the OwnerTrust Estate and the making of distributions to the Noteholders and the holderof the Certificate; and

###  

### (g)           toengage in those activities, including entering into agreements, that arenecessary, suitable or convenient to accomplish the foregoing or are incidentalthereto or connected therewith.

###  

The Trust is hereby authorized to engage in theforegoing activities.  The Trust shallnot engage in any activity other than in connection with the foregoing or otherthan as required or authorized by the terms of this Agreement or the otherTransaction Documents.

 

## **Section 2.4**            **Appointmentof Owner Trustee**.

##  

The Depositor hereby appoints Deutsche Bank TrustCompany Delaware as owner trustee, as trustee of the Trust effective as of thedate hereof, to have all the rights, powers and authority set forth herein andin the Statutory Trust Act and Deutsche Bank Trust Company Delaware, as ownertrustee, hereby accepts such appointment.

 

## **Section 2.5**            **OrganizationalMatters**.

##  

The Depositor shall pay from amounts payable to itpursuant to Section 3.5(d)(xii) of the Sale and Allocation Agreement, theorganizational expenses of the Trust as they may arise or shall, upon therequest of the Owner Trustee, promptly reimburse the Owner Trustee, in its individualcapacity, for any such expenses paid by the Owner Trustee, in its individualcapacity. The net proceeds from the sale of the Class A Notes shall be used topurchase Contracts and related property from the Depositor in accordance withSection 2.1 of the Sale and Allocation Agreement and to fund the ReserveAccount and the Prefunding Account in the amounts required by the Sale andAllocation Agreement.

 

5

----

 

## **Section 2.6**            **Declarationof Trust**.

##  

The Owner Trustee hereby declares that it will holdthe Owner Trust Estate in trust upon and subject to the conditions set forthherein for the use and benefit of the Depositor, subject to the obligations ofthe Trust under the Transaction Documents. It is the intention of the parties hereto that (A) the Trust constitutea statutory trust under the Statutory Trust Act and that this Agreementconstitute the governing instrument of such statutory trust and (B) solely forincome and franchise tax purposes, the Trust shall be treated as a trust.  Unless otherwise required by the appropriatetax authorities, the Trust shall file or cause to be filed annual or othernecessary returns, reports and other forms consistent with the characterizationof the Trust as a trust for such tax purposes. Effective as of the date hereof, the Owner Trustee shall have allrights, powers and authority set forth herein and in the Statutory Trust Actwith respect to accomplishing the purposes of the Trust. The Owner Trusteeshall have power and authority and is hereby authorized and empowered toexecute and file any certificate to be filed under the Statutory Trust Act.

 

## **Section 2.7**            **Title ofTrust Property**.

##  

Legal title to the entirety of the Owner Trust Estateshall be vested at all times in the Trust as a separate legal entity, exceptwhere applicable law in any jurisdiction requires title to any part of theOwner Trust Estate to be vested in a trustee or trustees, in which case titleshall be deemed to be vested in the Owner Trustee, a co-trustee and/or aseparate trustee, as the case may be.

 

## **Section2.8**            **Situs of Trust**.

##  

The Trust shall be located in the State ofDelaware.  All bank accounts maintainedby the Owner Trustee on behalf of the Trust shall be located in the State ofDelaware or the State of New York.  TheTrust shall not have any employees in any state other than the State ofDelaware; provided, however, that nothing herein shall restrictor prohibit the Owner Trustee from having employees within or outside the Stateof Delaware.  Payments will be receivedby the Trust only in the State of Delaware or the State of New York, andpayments will be made by the Trust only from the State of Delaware or the Stateof New York.  The only office of the Trustwill be at the Corporate Trust Office in the State of Delaware.

 

## **Section 2.9**            **Representationsand Warranties of the Depositor**.

##  

The Depositor hereby represents and warrants to theOwner Trustee (as such and in its individual capacity) that:

 

### (a)           theDepositor is duly organized and validly existing as a corporation in goodstanding under the laws of the State of Delaware, with power and authority toown its properties and to conduct its business as such properties are currentlyowned and such business is presently conducted;

###  

### (b)           theDepositor is duly qualified to do business as a foreign corporation in goodstanding, and has obtained all necessary licenses and approvals in all

###  

6

----

 

### jurisdictions inwhich the ownership or lease of property or the conduct of its businessrequires such qualifications;

###  

### (c)           theDepositor has the power and authority to execute and deliver this Agreement andeach other Transaction Document to which it is a party and to carry out theirrespective terms, and the Depositor has full power and authority to sell andassign the property to be sold and assigned to, and deposited with, the Trust;the Depositor has duly authorized such sale and assignment and deposit to theTrust by all necessary action and the execution, delivery and performance ofthis Agreement and each other Transaction Document to which it is a party hasbeen duly authorized by the Depositor by all necessary action;

###  

### (d)           theconsummation by the Depositor of the transactions contemplated by thisAgreement and each other Transaction Document to which it is a party and thefulfillment of the terms hereof and thereof do not conflict with, result in anybreach of any of the terms and provisions of, or constitute (with or withoutnotice or lapse of time or both) a default under, the certificate ofincorporation or bylaws of the Depositor, or any indenture, agreement or otherinstrument to which the Depositor is a party or by which it is bound do notresult in the creation or imposition of any Lien upon any of its propertiespursuant to the terms of any such indenture, agreement or other instrument(other than pursuant to the Transaction Documents) and do not violate any lawor, to the knowledge of the Depositor, any order, rule or regulation applicableto the Depositor of any court or of any federal or state regulatory body,administrative agency or other governmental instrumentality having jurisdictionover the Depositor or its properties;

###  

### (e)           thereare no proceedings or investigations pending or, to the knowledge of theDepositor, threatened, before any court, regulatory body, administrative agencyor other governmental instrumentality having jurisdiction over the Depositor orits properties (i) asserting the invalidity of this Agreement, the Indenture,any of the other Transaction Documents or the Notes, (ii) seeking to preventthe issuance of the Notes or the consummation of any of the transactionscontemplated by this Agreement, the Indenture or any of the other TransactionDocuments, (iii) seeking any determination or ruling that might materially andadversely affect the performance by the Depositor of its obligations under, orthe validity or enforceability of, this Agreement or any other TransactionDocument to which the Depositor is a party or (iv) which might adversely affectthe federal income tax attributes, or Applicable Tax State franchise or incometax attributes, of the Notes; and

###  

### (f)            therepresentations and warranties of the Seller in Section 2.2 of the Sale andAllocation Agreement are true and correct.

###  

## **Section 2.10**         **FederalIncome Tax Matters**.

##  

It is the intent of the Depositor and the Servicerthat, for purposes of federal income, state and local income and franchise taxand any other taxes, the Trust will not be treated as an association orpublicly traded partnership taxable as a corporation.  The Depositor, by acceptance of its interest in the Certificate,and the Owner Trustee agree to such treatment and agree to take no actioninconsistent with such treatment, including the making of an election under TreasuryRegulation Section 301.7701-3 on behalf of the Trust such that the Trust istreated as an

 

7

----

 

association taxable as a corporation.  Except as authorized by the succeedingsentence, the Depositor shall not sell or suffer to be transferred theownership of the Class B Notes unless the Depositor shall first have eitherreceived an opinion of counsel to the effect that such sale or transfer wouldnot cause the Trust to be taxable as an association or publicly tradedpartnership taxable as a corporation or provided the Trust indemnificationsatisfactory to the Owner Trustee with respect to any such tax or other expensethat might be imposed on or incurred by the Trust as a result of such action.  Notwithstanding the foregoing, the Depositor(and any transferee thereof) may sell or transfer or cause the Class B Notes tobe sold or transferred provided that such transfer is in accordance with thetransfer restrictions set forth in the Indenture and the form of Class B Note.

 

# **Article IIITrust Certificates and Transfer of Interests**

# ** **

## **Section3.1**            **Ownership**.

##  

The Depositor shall be the sole beneficial owner ofthe Trust.

 

## **Section3.2**            **The Certificate**.

##  

The Certificate shall be issued to the Depositor onthe Closing Date as a registered, definitive, physical certificate,substantially in the form set forth in Exhibit A attached hereto.  The Certificate shall not be Transferred bythe Depositor to any other Person.

 

The Certificate may be in printed or typewritten formand shall be executed on behalf of the Trust by manual or facsimile signatureof an authorized officer of the Owner Trustee. If the Certificate bears the manual or facsimile signatures ofindividuals who were, at the time when such signatures shall have been affixed,authorized to sign on behalf of the Trust, it shall be validly issued andentitled to the benefits of this Agreement, notwithstanding that suchindividuals or any of them shall have ceased to be so authorized prior to theauthentication and delivery of the Certificate or did not hold such offices atthe date of authentication and delivery of the Certificate.

 

## **Section 3.3**            **Authenticationof the Certificate**.

##  

As of the date hereof, the Owner Trustee shall causethe Certificate to be executed on behalf of the Trust, authenticated, issuedand delivered upon written order of the Depositor signed by its manager, itspresident, any vice president, its secretary or its treasurer, without furtheraction by the Depositor.  Thereupon,such Certificate shall be duly authorized, validly issued and entitled to thebenefits of this Agreement.  TheCertificate shall not entitle its holder to any benefit under this Agreement,or be valid for any purpose, unless there shall appear on such Certificate acertificate of authentication substantially in the form set forth in ExhibitA executed by the Owner Trustee or Deutsche Bank Trust Company Americas, asthe Owner Trustee’s authenticating agent, by manual signature, whichauthentication shall constitute conclusive evidence that the Certificate isentitled to the benefits of this Agreement and has been duly authenticated,duly authorized, validly issued and delivered hereunder.  The Certificate shall be dated the date ofits authentication.

 

8

----

 

## **Section 3.4**            **Registrationof the Certificate**.

##  

The Certificate Registrar (defined below) shall causeto be kept, at its Corporate Trust Office (as defined in the Sale andAllocation Agreement) a register (the “*Certificate Register*”) in which,subject to such reasonable regulations as it may prescribe, the CertificateRegistrar shall provide for the registration of the Certificate.  The Indenture Trustee initially shall be theregistrar (the “*Certificate Registrar*”) for thepurpose of registering the Certificate as herein provided.  The Certificate Registrar shall, promptlyupon request, furnish to the Owner Trustee information regarding theCertificate Register, including a copy thereof.  Upon any resignation of any Certificate Registrar, the OwnerTrustee shall promptly appoint a successor or, if it elects not to make such anappointment, assume the duties of Certificate Registrar.

 

## **Section3.5**            **Mutilated, Destroyed, Lost or StolenCertificate**.

##  

### (a)           If(i) a mutilated Certificate is surrendered to the Certificate Registrar, or theCertificate Registrar receives evidence to its satisfaction of the destruction,loss or theft of the Certificate, and (ii) there is delivered to theCertificate Registrar and Owner Trustee (as such and in its individualcapacity) such security or indemnity as may be required by them to hold each ofthe Trust, the Certificate Registrar and the Owner Trustee (as such and in itsindividual capacity) harmless, then, in the absence of notice to the Trust, theCertificate Registrar or the Owner Trustee that the Certificate has beenacquired by a protected purchaser, the Owner Trustee shall execute and theOwner Trustee or Deutsche Bank Trust Company Americas, as the Owner Trustee’sauthenticating agent, shall authenticate and deliver, in exchange for, or inlieu of, such mutilated, destroyed, lost or stolen Certificate, a replacementCertificate of like tenor and denomination. If, after the delivery of such replacement Certificate, a protectedpurchaser of the original Certificate in lieu of which such replacementCertificate was issued presents for payment such original Certificate, theTrust shall be entitled to recover such replacement Certificate (or suchpayment) from the Person to whom such replacement Certificate was delivered orany Person taking such replacement Certificate from such Person to whom suchreplacement Certificate was delivered or any assignee of such Person, except aprotected purchaser, and shall be entitled to recover upon the security or indemnityprovided therefor to the extent of any loss, damage, cost or expense incurredby the Trust or the Owner Trustee (as such or in its individual capacity) inconnection therewith.

###  

### (b)           Uponthe issuance of any replacement Certificate under this Section 3.5, theTrust may require the payment by the Depositor of a sum sufficient to cover anytax or other governmental charge that may be imposed in connection with suchissuance and any other reasonable expenses (including the fees and expenses ofthe Owner Trustee (as such and in its individual capacity)) related thereto.

###  

### (c)           Anyreplacement Certificate issued pursuant to this Section 3.5 inreplacement of the mutilated, destroyed, lost or stolen Certificate shallconstitute an original additional contractual obligation of the Trust, whetheror not the mutilated, destroyed, lost or stolen Certificate shall be at anytime enforceable by anyone, and shall be duly authorized, validly issued andentitled to all the benefits of this Agreement.

###  

### 9

### 

###  

### (d)           Theprovisions of this Section 3.5 are exclusive and shall preclude (to theextent lawful) all other rights and remedies with respect to the replacement orpayment of any mutilated, destroyed, lost or stolen Certificate.

###  

## **Section 3.6**            **Appointmentof Paying Agent**.

##  

The Paying Agent with respect to the Certificate shallinitially be Deutsche Bank Trust Company Americas, and any co-paying agentchosen by the Owner Trustee.  DeutscheBank Trust Company Americas shall be permitted to resign as Paying Agent uponthirty (30) days’ written notice to the Owner Trustee.  In the event that Deutsche Bank TrustCompany Americas shall no longer be the Paying Agent, the Owner Trustee, withthe consent of the Insurer, shall appoint a successor to act as Paying Agent(which shall be a bank or trust company). The Paying Agent shall return allunclaimed funds to the Owner Trustee and upon removal of a Paying Agent suchPaying Agent shall also return all funds in its possession to the Owner Trustee.  The rights, benefits, protections,privileges and immunities of the Owner Trustee (as such or in its individualcapacity) under this Agreement shall apply to the Owner Trustee also in itsrole as Paying Agent, for so long as the Owner Trustee shall act as PayingAgent and, to the extent applicable, to any other paying agent appointedhereunder.  Any reference in thisAgreement to the Paying Agent shall include any co-paying agent unless thecontext requires otherwise.

 

# **Article IVActions by Owner Trustee**

# ** **

## **Section 4.1**            **PriorNotice with Respect to Certain Matters**.

##  

With respect to the following matters, the Trust shallnot take action unless (a) at least thirty (30) days before the taking of suchaction, the Owner Trustee shall have notified the Insurer and the RatingAgencies in writing of the proposed action and (b) the Insurer, if an InsurerDefault shall not have occurred and be continuing, shall have previouslyconsented in writing thereto and the Depositor shall not have (i) notified theOwner Trustee in writing prior to the 30th day after such notice is given thatit has withheld consent or (ii) provided alternative written direction prior tothe 30th day after such notice is given:

 

(A)          the initiation of anyclaim or lawsuit by the Trust (except claims or lawsuits brought by theServicer in connection with the collection of the Contracts) and the settlementof any action, claim or lawsuit brought by or against the Trust (except withrespect to the aforementioned claims or lawsuits for collection by the Servicerof the Contracts);

 

(B)           the election by theTrust to file an amendment to the Certificate of Trust (unless such amendmentis required to be filed under the Statutory Trust Act);

 

(C)           the amendment of theIndenture by a supplemental indenture in circumstances where the consent of anyNoteholder is required;

 

10

----

 

(D)          the appointment pursuantto the Indenture of a successor Note Registrar, Paying Agent for the Notes orIndenture Trustee or pursuant to this Agreement of a successor CertificateRegistrar, or the consent to the assignment by the Note Registrar, Paying Agentfor the Notes or Indenture Trustee or Certificate Registrar of its obligationsunder the Indenture or this Agreement, as applicable;

 

(E)           the consent to thecalling or waiver of any default of any Transaction Document;

 

(F)           the consent to theassignment by the Indenture Trustee or Servicer of their respective obligationsunder any Transaction Document, unless permitted in the Transaction Documents;

 

(G)           cause the Trust toincur, assume or guaranty any indebtedness other than as set forth in thisAgreement or the Transaction Documents;

 

(H)          possess Trust assets, orassign the Trust’s right to property, for other than a Trust purpose;

 

(I)            cause the Trust tolend any funds to any entity, unless permitted in this Agreement or theTransaction Documents;

 

(J)            except as provided in ArticleIX hereof, dissolve, terminate or liquidate the Trust in whole or in part;

 

(K)          merge or consolidate theTrust with or into any other entity, or convey or transfer all or substantiallyall of the Trust’s assets to any other entity;

 

(L)           do any act thatconflicts with any other Transaction Document;

 

(M)         do any act which wouldmake it impossible to carry on the ordinary business of the Trust as describedin Section 2.3 hereof;

 

(N)          confess a judgmentagainst the Trust; or

 

(O)          change the Trust’spurpose and powers from those set forth in this Agreement.

 

In addition, the Trust shall not commingle its assetswith those of any other entity.  TheTrust shall maintain its financial and accounting books and records separatelyfrom those of any other entity.  Exceptas expressly set forth herein, the Trust shall not pay any indebtedness,operating expenses or liabilities of any other entity.  The Trust shall maintain appropriate minutesor other records of all appropriate actions and shall maintain its officesseparate from the offices of the Depositor and the Servicer.  The Trust shall maintain an arms length relationshipwith its Affiliates, conduct its own business in its own name and hold itselfout a separate entity from all other Persons.

 

11

----

 

## **Section 4.2**            **Action byDepositor with Respect to Certain Matters**.

##  

The Owner Trustee may not, except upon the occurrenceof an Event of Servicing Termination subsequent to the payment in full of theNotes and in accordance with the written direction of the Insurer, if anInsurer Default shall not have occurred and be continuing, or the Depositor(with the consent of the Insurer, provided that an Insurer Default shall nothave occurred and be continuing) (a) remove the Servicer pursuant to 5.2 of theServicing Agreement, (b) appoint a successor Servicer pursuant to 5.2 of theServicing Agreement, (c) remove the Administrator pursuant to Section 9 of theAdministration Agreement, (d) appoint a successor Administrator pursuant toSection 9 of the Administration Agreement or (e) sell the Contracts after thetermination of the Indenture, except as expressly provided in the TransactionDocuments.

 

## **Section 4.3**            **Action byOwner Trustee with Respect to Bankruptcy**.

##  

### (a)           TheTrust shall not, without the prior written consent of the Owner Trustee,(i) institute any proceedings to adjudicate the Trust as bankrupt orinsolvent, (ii) consent to the institution of bankruptcy or insolvencyproceedings against the Trust, (iii) file a petition seeking or consenting toreorganization or relief under any applicable federal or state law relating tobankruptcy with respect to the Trust, (iv) consent to the appointment of areceiver, liquidator, assignee, trustee, sequestrator (or other similarofficial) of the Trust or a substantial part of its property, (v) make anyassignment for the benefit of the Trust’s creditors, (vi) admit in writing itsinability to pay its debts generally as they become due, or (vii) take anyaction in furtherance of any of the foregoing (any of the above foregoingactions, a “*Bankruptcy Action*”). In considering whether to give or withhold written consent to anyBankruptcy Action by the Trust, the Owner Trustee, with the consent of theDepositor (hereby given, which consent the Depositor believes to be in theTrust’s and its best interests), shall consider the interest of the Noteholdersand the Insurer in addition to the interests of the Trust and whether the Trustis insolvent.  The Owner Trustee shallhave no duty to give such written consent to Bankruptcy Action by the Trust ifthe Owner Trustee shall not have been furnished (at the expense of the Personthat requested that such letter be furnished to the Owner Trustee) a letterfrom an independent accounting firm of national reputation stating that in theopinion of such firm the Trust is then insolvent.

###  

The Owner Trustee (as such and in its individualcapacity) shall not be personally liable to any Person on account of the OwnerTrustee’s good faith reliance on the provisions of this Section or inconnection with the Owner Trustee’s giving prior written consent to BankruptcyAction by the Trust in accordance herewith, or withholding such consent, ingood faith, and neither the Trust nor the Depositor shall have any claim forbreach of fiduciary duty or otherwise against the Owner Trustee (as such and inits individual capacity) for giving or withholding its consent to any suchBankruptcy Action.

 

### (b)           Theparties hereto stipulate and agree that the Depositor has no power to commenceany Bankruptcy Action on the part of the Trust or to direct the Owner Trusteeto take any Bankruptcy Action on the part of the Trust.  To the extent permitted by applicable law,the consent of the Insurer (provided that no Insurer Default has occurred andis continuing) and the Indenture Trustee shall be obtained prior to taking anyBankruptcy Action by the Trust.

###  

12

----

 

### (c)           Theprovisions of this Section do not constitute an acknowledgment or admission bythe Trust, the Owner Trustee, or any creditor of the Trust that the Trust iseligible to be a debtor under the United States Bankruptcy Code, 11 U.S.C. §101et. Seq., as amended.

###  

## **Section 4.4**            **Restrictionson Insurer’s Power**.

##  

Neither the Insurer nor the Depositor shall direct theOwner Trustee to take or refrain from taking any action if such action or inactionwould be contrary to any obligation of the Trust or the Owner Trustee underthis Agreement or any of the other Transaction Documents or would be contraryto Section 2.3, nor shall the Owner Trustee be obligated to follow anysuch direction, if given.

 

# **Article VApplication of Trust Funds; Certain Duties**

# ** **

## **Section 5.1**            **Establishmentof Depositor Account**.

##  

Pursuant to Section 3.1(c) of the Sale and AllocationAgreement, there shall be maintained in the name of the Trust at an EligibleInstitution a segregated trust account designated as the Depositor Account (the“*DepositorAccount*”).  The DepositorAccount shall be held in trust for the benefit of the Depositor.  Except as expressly provided in Section3.1(c) of the Sale and Allocation Agreement, the Depositor Account shall beunder the sole dominion and control of the Depositor.  All monies deposited from time to time in the Depositor Accountpursuant to the Sale and Allocation Agreement shall be applied as provided inthis Agreement.

 

## **Section 5.2**            **Applicationof Trust Funds**.

##  

### (a)           Oneach Payment Date the Paying Agent with respect to the Certificate shall, afterpayment of all liabilities of the Trust, including any amounts owing to theOwner Trustee and the Insurer under the Transaction Documents, distribute allamounts on deposit in the Depositor Account to the Depositor.

###  

In addition, the Paying Agent with respect to theCertificate shall, after payment of all liabilities of the Trust, including anyamounts owing to the Owner Trustee and the Insurer under the TransactionDocuments, promptly remit to the Depositor any amounts received from theIndenture Trustee for the benefit of the Depositor in respect of excess amountsfrom the Reserve Account pursuant to Section 3.6(d) of the Sale and AllocationAgreement.

 

### (b)           Inthe event that any withholding tax is imposed on any payment (or allocations ofincome) by the Trust to the Depositor, such tax shall reduce the amountotherwise distributable to the Depositor in accordance with this Section 5.2.  The Owner Trustee and each Paying Agent withrespect to the Certificate is hereby authorized and directed to retain (asdirected in writing by the Administrator) from amounts otherwise distributableto the Depositor sufficient funds for the payment of any such withholding taxthat is legally owed by the Trust (but such authorization shall not prevent theTrust from contesting any such tax in appropriate proceedings, and withholdingpayment of such tax, if permitted by law, pending the

###  

### 13

### 

###  

### outcome of suchproceedings).  The amount of anywithholding tax imposed with respect to the Depositor shall be treated as cashdistributed to the Depositor at the time it is withheld by the Trust andremitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respectto a distribution, the Owner Trustee or the Paying Agent with respect to theCertificate may, in its sole discretion, withhold such amounts in accordancewith this Section 5.2.  If theDepositor wishes to apply for a refund of any such withholding tax, the OwnerTrustee shall reasonably cooperate with the Depositor in making such claim solong as the Depositor agrees to reimburse the Owner Trustee, as such and in itsindividual capacity, for any expenses incurred.

###  

## **Section5.3**            **Method of Payment**.

##  

Subject to Section 9.1(c), distributionsrequired to be made to the Depositor on any Payment Date shall be made to theDepositor by wire transfer, in immediately available funds, to the account(reasonably identified to the Paying Agent in writing) of the Depositor at abank or other entity having appropriate facilities therefor.  Notwithstanding the foregoing, the finaldistribution in respect of the Certificate (whether on the Final Note PaymentDate or otherwise) will be payable only upon presentation and surrender of theCertificate at the office of the Paying Agent with respect to the Certificate.

 

## **Section 5.4**            **NoSegregation of Monies; No Interest**.

##  

Subject to Sections 5.1 and 5.2, moniesreceived by the Owner Trustee hereunder need not be segregated in any mannerexcept to the extent required by law, the Indenture or the Sale and AllocationAgreement and may be deposited under such general conditions as may beprescribed by law, and the Owner Trustee shall not be personally liable for anyinterest thereon.

 

# **Article VIAuthority and Duties of Owner Trustee**

# ** **

## **Section 6.1**            **GeneralAuthority**.

##  

The Owner Trustee shall have power and authority andis hereby authorized and empowered in the name and on behalf of the Trust toexecute and deliver the Transaction Documents to which the Trust is to be aparty and each certificate or other document attached as an exhibit to orcontemplated by the Transaction Documents to which the Trust is to be a partyand any amendment or other agreement, in each case in such form as theDepositor shall approve, as evidenced conclusively by the Owner Trustee’sexecution thereof and the Depositor’s execution of this Agreement, and todirect the Indenture Trustee to authenticate and deliver Class A Notes andClass B Notes in the aggregate principal amount of $139,661,000.00 and$5,065,890.91, respectively.  Inaddition to the foregoing, the Owner Trustee shall have power and authority andis hereby authorized and empowered in the name and on behalf of the Trust totake all actions required of or permitted to be taken by the Trust pursuant tothe Transaction Documents.  The OwnerTrustee shall have power and authority and is hereby authorized and empoweredin the name and on behalf of the Trust from time to time to take such

 

14

----

 

action on behalf of the Trust as is permitted by theTransaction Documents and which the Servicer or the Administrator recommendswith respect to the Transaction Documents.

 

## **Section6.2**            **General Duties**.

##  

It shall be the duty of the Owner Trustee to perform(or cause to be performed) all of the duties expressly required to be performedby the Owner Trustee under this Agreement and the other Transaction Documentsto which the Trust is a party. Notwithstanding the foregoing, the Owner Trustee shall be deemed to havedischarged its duties and responsibilities hereunder and under the TransactionDocuments to the extent the Administrator or any other Person is required inthe Administration Agreement or any other Transaction Document to perform anyact or to discharge such duty of the Owner Trustee or the Trust hereunder orunder any other Transaction Document, and the Owner Trustee shall not be held personallyliable for the default or failure of the Administrator or any other Person tocarry out its obligations under the Administration Agreement or any otherTransaction Document.

 

## **Section 6.3**            **ActionUpon Instruction**.

##  

### (a)           Subjectto Article IV, and in accordance with the terms of the TransactionDocuments, the Depositor may, by written instruction, direct the Owner Trusteein the management of the Trust.

###  

### (b)           Notwithstandingany other provision herein or in any other Transaction Document, the Owner Trusteeshall not be required to take any action hereunder or under any TransactionDocument if the Owner Trustee shall have reasonably determined, or shall havebeen advised by counsel, that such action is likely to result in personalliability on the part of the Owner Trustee or is contrary to the terms hereofor of any other Transaction Document or is otherwise contrary to law.

###  

### (c)           Wheneverthe Owner Trustee is unable to decide between alternative courses of actionpermitted or required by the terms of this Agreement or any other TransactionDocument, the Owner Trustee shall promptly give notice (in such form as shallbe appropriate under the circumstances) to the Insurer (so long as no InsurerDefault has occurred and is continuing) and the Depositor requestinginstruction as to the course of action to be adopted, and to the extent theOwner Trustee acts in good faith in accordance with any written instruction ofthe Insurer or the Depositor received, the Owner Trustee shall not bepersonally liable on account of such action to any Person.  If the Owner Trustee shall not have receivedappropriate written instruction within ten (10) days of such notice (or withinsuch shorter period of time as reasonably may be specified in such notice ormay be necessary under the circumstances) it may, but shall be under no dutyto, take or refrain from taking such action as it shall deem to be in the bestinterests of the Depositor and shall have no personal liability to any Personfor such action or inaction.

###  

### (d)           Inthe event the Owner Trustee is unsure as to the application of any provision ofthis Agreement or any other Transaction Document or any such provision isambiguous as to its application, or is, or appears to be, in conflict with anyother applicable provision, or in the event that this Agreement permits anydetermination by the Owner Trustee or

###  

### 15

### 

###  

### is silent or isincomplete as to the course of action that the Owner Trustee is required orpermitted to take with respect to a particular set of facts, the Owner Trusteemay give notice (in such form as shall be appropriate under the circumstances)to the Insurer (so long as no Insurer Default has occurred and is continuing)and the Depositor requesting instruction and, to the extent that the OwnerTrustee acts or refrains from acting in good faith in accordance with any suchinstruction received, the Owner Trustee shall not be personally liable, onaccount of such action or inaction, to any Person.  If the Owner Trustee shall not have received appropriateinstruction within ten (10) days of such notice (or within such shorter periodof time as reasonably may be specified in such notice or may be necessary underthe circumstances) it may, but shall be under no duty to, take or refrain fromtaking such action as it shall deem to be in the best interests of theDepositor and shall have no personal liability to any Person for such action orinaction.

###  

## **Section 6.4**            **No DutiesExcept as Specified in this Agreement or in Instructions**.

##  

The Owner Trustee shall not have any duty orobligation to manage, make any payment with respect to, register, record, sell,dispose of or otherwise deal with the Owner Trust Estate, or to otherwise takeor refrain from taking any action under, or in connection with, this Agreementor any document contemplated hereby, except the duties expressly required to beperformed by the Owner Trustee by the terms of this Agreement or in anydocument or written instruction received by the Owner Trustee pursuant to Section6.3, and no implied duties or obligations shall be read into this Agreementor any other Transaction Document against the Owner Trustee.  The Owner Trustee shall have noresponsibility for filing any financing or continuation statement in any publicoffice at any time or otherwise to perfect or maintain the perfection of anysecurity interest or lien or to prepare or file any Securities and ExchangeCommission filing for the Trust or to record this Agreement or any otherTransaction Document.  The OwnerTrustee, in its individual capacity, shall, however, at its own cost andexpense, promptly take all action as may be necessary to discharge any lien(other than the lien of the Indenture) on any part of the Owner Trust Estatethat results from actions by, or claims against, the Owner Trustee, in itsindividual capacity, that are not related to the ownership or theadministration of the Owner Trust Estate or the Trust or the Owner Trustee’sserving as trustee of the Trust.

 

## **Section 6.5**            **No ActionExcept Under Specified Documents or Instructions**.

##  

The Owner Trustee shall not manage, control, use,sell, dispose of or otherwise deal with any part of the Owner Trust Estateexcept (a) in accordance with the powers granted to and the authority conferredupon the Owner Trustee pursuant to this Agreement, (b) in accordance with theother Transaction Documents to which the Trust or the Owner Trust is a partyand (c) in accordance with any document or instruction delivered to the OwnerTrustee pursuant to Section 6.3.

 

## **Section6.6**            **Restrictions**.

##  

The Owner Trustee shall not take any action (a) thatis inconsistent with the purposes of the Trust set forth in Section 2.3or (b) that, to the actual knowledge of the Owner Trustee, would (i) adverselyaffect the treatment of the Class A Notes as indebtedness for federal income orincome or franchise tax purposes of any Applicable Tax State, (ii) be deemed tocause a taxable

 

16

----

 

exchange of the Class A Notes for federal income orincome or franchise tax purposes of any Applicable Tax State or (iii) cause theTrust or any portion thereof to be taxable as an association or publicly tradedpartnership taxable as a corporation for federal income or income or franchisetax purposes of Applicable Tax State.

 

The Depositor shall not direct the Owner Trustee totake action that would violate the provisions of this Section 6.6.

 

# **Article VIIRegarding The Owner Trustee**

# ** **

## **Section 7.1**            **Acceptanceof Trusts and Duties**.

##  

The Owner Trustee accepts the trusts hereby createdand agrees to perform the duties expressly required to be performed by theOwner Trustee hereunder.  The OwnerTrustee also agrees to disburse all monies actually received by it constitutingpart of the Owner Trust Estate upon the terms of this Agreement and the otherTransaction Documents to which the Trust is a party.  The Owner Trustee shall not be personally answerable oraccountable hereunder or under any other Transaction Document under anycircumstances, except for liability to the Trust and the Depositor (a) for itsown willful misconduct, bad faith or gross negligence or (b) in the case of thebreach of any representation or warranty contained in Section 7.3expressly made by the Owner Trustee in its individual capacity.  In particular, but not by way of limitation(and subject to the exceptions set forth in the preceding sentence):

 

#### (i)            theOwner Trustee shall not be personally liable for any error of judgment made ingood faith by the Owner Trustee unless it is proved that the Owner Trustee wasgrossly negligent in ascertaining the pertinent facts;

####  

#### (ii)           theOwner Trustee shall not be personally liable with respect to any action takenor omitted to be taken in good faith by it in accordance with the provisions ofthis Agreement at the instructions of the Indenture Trustee, the Insurer, theDepositor, the Administrator or the Servicer or other instructions given inaccordance with this Agreement or any other Transaction Document;

####  

#### (iii)          no provision of this Agreement or any otherTransaction Document shall require the Owner Trustee to expend or risk its ownfunds or otherwise incur personal financial liability in the performance of anyof its duties or in the exercise of any of its rights or powers hereunder orunder any other Transaction Document if the Owner Trustee shall have reasonablegrounds to believe that repayment of such funds or indemnity satisfactory to itin its individual capacity against such risk or liability is not reasonablyassured or provided to it in its individual capacity;

####  

#### (iv)          underno circumstances shall the Owner Trustee be personally liable for indebtednessevidenced by or arising under any of the Transaction Documents, theCertificate, the Notes or other indebtedness of the Trust, including theprincipal of and interest on the Notes;

####  

17

----

 

#### (v)           theOwner Trustee shall not be responsible or personally liable for or in respectof the validity or sufficiency of this Agreement or for the due executionhereof by the Depositor or for the form, character, genuineness, sufficiency,value or validity of any of the Owner Trust Estate or Transaction Documents andthe Owner Trustee shall in no event assume or incur any personal liability,duty, or obligation to any Noteholder, the Depositor or any other Person otherthan as expressly provided for herein;

####  

#### (vi)          theOwner Trustee shall not be personally liable for the default or misconduct ofthe Servicer, the Administrator, the Depositor, the Indenture Trustee or anyother Person under any of the Transaction Documents or otherwise, and the OwnerTrustee shall have no duty to monitor or supervise any other trustee hereunder,if any, the Certificate Registrar (if other than the Owner Trustee), theAdministrator, the Paying Agent with respect to the Certificate (if other thanthe Owner Trustee), any agent or independent contractor of the Trust, anydelegatee of any trustee or any other Person and the Owner Trustee (as such inits individual capacity) shall have no obligation or liability to perform theobligations of the Trust under this Agreement or the other TransactionDocuments that are not expressly required to be performed by the Owner Trusteeor that are required to be performed by the Administrator under theAdministration Agreement, the Servicer under the Sale and Allocation Agreementor the Indenture Trustee under the Indenture;

####  

#### (vii)         the Owner Trustee shall be under no obligationto exercise any of the rights or powers vested in it by this Agreement or anyother Transaction Document or to institute, conduct or defend any litigationunder this Agreement or otherwise or in relation to this Agreement or any otherTransaction Document at the request, order or direction of the Depositor orotherwise, unless the Owner Trustee (as such and in its individual capacity)has been offered security or indemnity satisfactory to it against the costs,expenses and liabilities that may be incurred by the Owner Trustee therein orthereby.  The right of the Owner Trusteeto perform any discretionary act enumerated in this Agreement or any otherTransaction Document shall not be construed as a duty, and the Owner Trusteeshall not be answerable or liable in its individual capacity except to theTrust or the Depositor for its own willful misconduct, bad faith or grossnegligence in the performance of any such act;

####  

#### (viii)        under no circumstances shall the Owner Trusteebe personally liable for any representation, warranty, covenant, agreement orindebtedness of the Trust; and

####  

#### (ix)           inany capacity in which it may act (or refrain from acting) pursuant to thisAgreement or the other Transaction Documents, the Owner Trustee (as such and inits individual capacity) shall be entitled to the benefits of the TrustAgreement.

####  

## **Section 7.2**            **Furnishingof Documents**.

##  

The Owner Trustee shall furnish to the Depositorpromptly upon receipt of a written request therefor, duplicates or copies ofall reports, notices, requests, demands, certificates, financial statements andany other instruments furnished to the Owner Trustee under the TransactionDocuments.

 

18

----

 

## **Section 7.3**            **Representationsand Warranties**.

##  

The Owner Trustee, in its individual capacity, herebyrepresents and warrants to the Depositor that:

 

### (a)           itis a banking corporation duly organized and validly existing in good standingunder the laws of the State of Delaware and has all requisite corporate powerand authority to execute, deliver and perform its obligations under thisAgreement;

###  

### (b)           ithas taken all necessary action to authorize the execution and delivery by it ofthis Agreement, and this Agreement will be executed and delivered by one of itsofficers who is duly authorized to execute and deliver this Agreement on itsbehalf; and

###  

### (c)           neitherthe execution nor the delivery by it of this Agreement, nor the consummation byit of the transactions contemplated hereby nor compliance by it with any of theterms or provisions hereof will constitute any default under its charterdocuments or by-laws or any indenture, mortgage, contract, agreement orinstrument to which it is a party or by which any of its properties may bebound.

###  

## **Section 7.4**            **Reliance;Advice of Counsel**.

##  

### (a)           TheOwner Trustee may rely upon, shall be fully protected in relying upon, andshall incur no personal liability to anyone in acting upon any signature,instrument, notice, resolution, request, consent, order, certificate, report,opinion, bond or other document or paper believed by it to be genuine andbelieved by it to be signed by an appropriate Person.  The Owner Trustee may conclusively rely (and shall be fullyprotected in relying) upon an Opinion of Counsel.  The Owner Trustee may accept a certified copy of a resolution ofthe board of directors or other governing body of any Person as conclusiveevidence that such resolution has been duly adopted by such body and that thesame is in full force and effect.  As toany fact or matter the method of the determination of which is not specificallyprescribed herein, the Owner Trustee may for all purposes hereof rely on acertificate, signed by the president or any vice president or by the treasureror other authorized officer of an appropriate Person, as to such fact or matterand such certificate shall constitute full protection to the Owner Trustee (assuch and in its individual capacity) for any action taken or omitted to betaken by it in good faith in reliance thereon.

###  

### (b)           Inthe exercise or administration of the trusts hereunder and in the performanceof its duties and obligations under this Agreement or the other TransactionsDocuments, the Owner Trustee (i) may act directly or through its agents orattorneys pursuant to agreements entered into with any of them, and the OwnerTrustee shall not be personally liable for the conduct or misconduct of suchagents or attorneys if such agents or attorneys shall have been selected by theOwner Trustee with reasonable care and (ii) may consult with counsel,accountants and other skilled Persons to be selected with reasonable care andemployed by it.  The Owner Trustee shallnot be personally liable for anything done, suffered or omitted in good faithby it in accordance with the written opinion or advice of any such counsel,accountants or other such Persons.

###  

19

----

 

## **Section 7.5**            **NotActing in Individual Capacity**.

##  

Except as provided in this Article VII, inaccepting the trusts hereby created, Deutsche Bank Trust Company Delaware, actssolely as Owner Trustee hereunder and not in its individual capacity, and allPersons having any claim against the Owner Trustee by reason of thetransactions contemplated by this Agreement or any other Transaction Documentshall look only to the Owner Trust Estate for payment or satisfaction thereof.

 

## **Section 7.6**            **OwnerTrustee Not Liable for Contracts**.

##  

The recitals contained herein and in the Certificate(other than the signature and countersignature of the Owner Trustee on theCertificate) shall be taken as the statements of the Depositor, and the OwnerTrustee assumes no personal responsibility for the correctness thereof.  The Owner Trustee (as such or in itsindividual capacity) makes no representations as to the validity or sufficiencyof this Agreement, any other Transaction Document or the Certificate (otherthan the signature and countersignature of the Owner Trustee on theCertificate) or the Notes, or of any Contract or related documents.  The Owner Trustee shall at no time have anyresponsibility or personal liability for or with respect to the legality,validity and enforceability of any Contract, or the perfection and priority ofany security interest created by any Contract in any Financed Vehicle or themaintenance of any such perfection and priority, or for or with respect to thesufficiency of the Owner Trust Estate or its ability to generate the paymentsto be distributed to the Depositor under this Agreement or the Noteholdersunder the Indenture, including, without limitation, the existence, conditionand ownership of any Financed Vehicle, the existence and enforceability of anyinsurance thereon, the existence and contents of any Contract on any computeror other record thereof, the validity of the assignment of any Contract to theTrust or any intervening assignment, the completeness of any Contract, theperformance or enforcement of any Contract, the compliance by the Depositor orthe Servicer with any warranty or representation made under any TransactionDocument or in any related document, or the accuracy of any such warranty orrepresentation or any action of the Indenture Trustee, the Administrator or theServicer or any subservicer or any other Person taken in the name of the OwnerTrustee.

 

## **Section 7.7**            **OwnerTrustee May Own Notes**.

##  

The Owner Trustee, in its individual or any other capacity,may become the owner or pledgee of Notes and may deal with the Depositor, theServicer, the Administrator and the Indenture Trustee in banking transactionswith the same rights as it would have if it were not Owner Trustee.

 

# **Article VIIICompensation of Owner Trustee**

# ** **

## **Section 8.1**            **OwnerTrustee’s Fees and Expenses**.

##  

The Owner Trustee in its individual capacity shallreceive as compensation for its services hereunder the Owner Trustee Fee, inaccordance with the priorities set forth in Section 3.5(d) of the Sale andAllocation Agreement, and the Owner Trustee shall be reimbursed in its

 

20

----

 

individual capacity by the Issuer in accordance withthe priorities set forth in Section 3.5(d) of the Sale and Allocation Agreementand in accordance with the terms of the Owner Trustee Fee Letter for its otherreasonable expenses hereunder, including the reasonable compensation, expensesand disbursements of such agents, representatives, experts and counsel as theOwner Trustee may employ in connection with the exercise and performance of itsrights, powers, authorities and duties.

 

## **Section8.2**            **Indemnification**.

##  

### (a)           Tothe extent not paid by the Trust in accordance with Section 3.5(d) of the Saleand Allocation Agreement, the Depositor shall be liable for, and shallindemnify, from funds available to it pursuant to Section 3.5(d)(xii) of theSale and Allocation Agreement, each of (i) the Owner Trustee in its individualcapacity and its successors, assigns, directors, officers, employees, agentsand servants and (ii) Deutsche Bank Trust Company Americas and its successors,assigns, directors, officers, employees, agents and servants (collectively, the“*IndemnifiedParties*”) from and against, any and all liabilities, obligations,losses, damages, taxes, claims, actions and suits, and any and all reasonablecosts, expenses and disbursements (including reasonable legal fees andexpenses) of any kind and nature whatsoever (collectively, “*Expenses*”)which may at any time be imposed on, incurred by, or asserted against the OwnerTrustee in its individual capacity, Deutsche Bank Trust Company Americas or anyother Indemnified Party in any way relating to or arising out of thisAgreement, the other Transaction Documents, the Owner Trust Estate, theadministration of the Owner Trust Estate or the action or inaction of the OwnerTrustee hereunder; provided, however, that the Depositor shallnot be liable for or required to indemnify an Indemnified Party from andagainst Expenses arising or resulting from any of the matters described in clauses(a) and (b) of the third sentence of Section 7.1.  None of the Owner Trustee, Deutsche BankTrust Company Americas nor the Depositor will in any event be entitled to makeany claim upon the Trust Property for the payment or reimbursement of anyExpenses except in accordance with the Transaction Documents.  The indemnities contained in this Section8.2 and the other benefits, protections and immunities of the Owner Trustee(as such and in its individual capacity) and Deutsche Bank Trust CompanyAmericas under this Agreement shall survive the resignation or removal of theOwner Trustee and the termination of this Agreement.

###  

### (b)           Anyobligations of the Depositor under this Agreement are obligations solely of theDepositor and will not constitute a claim against the Depositor to the extentthat the Depositor does not have funds sufficient to make payment of suchobligations.  In furtherance of and notin derogation of the foregoing, each of the Owner Trustee and Deutsche BankTrust Company Americas, by entering into or accepting this Agreement,acknowledges and agrees that it has no right, title or interest in or to theOther Assets of the Depositor.  To the extentthat, notwithstanding the agreements and provisions contained in the precedingsentence, either the Owner Trustee or Deutsche Bank Trust Company Americaseither (i) asserts an interest or claim to, or benefit from, Other Assets, or(ii) is deemed to have any such interest, claim to, or benefit in or from OtherAssets, whether by operation of law, legal process, pursuant to applicableprovisions of insolvency laws or otherwise (including by virtue of Section1111(b) of the Bankruptcy Code or any successor provision having similar effectunder the Bankruptcy Code), then each of the Owner Trustee and Deutsche BankTrust Company Americas further acknowledges and agrees that any such interest,claim or benefit in or from Other Assets is and

###  

### 21

### 

###  

### will be expresslysubordinated to the indefeasible payment in full, which, under the terms of therelevant documents relating to the securitization or conveyance of such OtherAssets, are entitled to be paid from, entitled to the benefits of, or otherwisesecured by such Other Assets (whether or not any such entitlement or securityinterest is legally perfected or otherwise entitled to a priority ofdistributions or application under applicable law, including insolvency laws,and whether or not asserted against the Depositor), including the payment ofpost-petition interest on such other obligations and liabilities.  This subordination agreement will be deemeda subordination agreement within the meaning of Section 510(a) of theBankruptcy Code.  Each of the OwnerTrustee and Deutsche Bank Trust Company Americas further acknowledges andagrees that no adequate remedy at law exists for a breach of this Section 8.2(b) and the terms of this Section8.2(b)may be enforced by an action for specificperformance.  The provisions of this Section8.2(b) will be for the third party benefit of those entitled to relythereon and will survive the termination of this Agreement.

###  

## **Section 8.3**            **Paymentsto the Owner Trustee**.

##  

Any amounts paid to the Owner Trustee in itsindividual capacity or Deutsche Bank Trust Company Americas pursuant to this ArticleVIII shall be deemed not to be a part of the Owner Trust Estate immediatelyafter such payment.

 

# **ArticleIXTermination**

# ** **

## **Section 9.1**            **Terminationof Trust Agreement**.

##  

### (a)           TheTrust shall dissolve at the earlier of (i) the payment to the Noteholders, theDepositor and the Insurer of all amounts required to be paid to them pursuantto the terms of the Indenture, the Sale and Allocation Agreement, the InsuranceAgreement and Article V herein or (ii) the Payment Date next succeedingthe month which is one year after the maturity or other liquidation of the lastContract and the disposition of any amounts received upon liquidation of anyproperty remaining in the Trust; provided, however, in each case,that the Policy shall have been terminated in accordance with its terms andreturned to the Insurer for cancellation. The bankruptcy, liquidation, dissolution, death or incapacity of theDepositor shall not operate to terminate or dissolve this Agreement or theTrust, entitle the Depositor’s legal representatives or heirs to claim anaccounting or to take any action or proceeding in any court for a partition orwinding up of all or any part of the Trust or Owner Trust Estate or otherwiseaffect the rights, obligations and liabilities of the parties hereto.

###  

### (b)           TheDepositor shall not be entitled to revoke or terminate the Trust.

###  

### (c)           Noticeof any dissolution of the Trust, specifying the Payment Date upon which theDepositor shall surrender the Certificate to the Paying Agent with respect tothe Certificate for payment of the final distribution and cancellation, shallbe given by the Owner Trustee by letter to the Depositor mailed within five (5)Business Days of receipt by the Owner Trustee of written notice of suchdissolution from the Servicer, stating (i) the Payment Date upon

###  

### 22

### 

###  

### or with respect towhich final payment of the Certificate shall be made upon presentation andsurrender of the Certificate at the office of the Paying Agent thereinspecified, (ii) the amount of any such final payment and (iii) that the RecordDate otherwise applicable to such Payment Date is not applicable, paymentsbeing made only upon presentation and surrender of the Certificate at theoffice of the Paying Agent therein specified. The Owner Trustee shall give such notice to the Certificate Registrar(if other than the Owner Trustee) and the Paying Agent with respect to theCertificate at the time such notice is given to the Depositor.  Upon presentation and surrender of theCertificate, the Paying Agent with respect to the Certificate shall cause to bedistributed to the Depositor amounts distributable on such Payment Datepursuant to Section 5.2.  In theevent that the Depositor shall not surrender the Certificate for cancellationwithin six (6) months after the date specified in the above mentioned writtennotice, the Owner Trustee shall give a second written notice to the Depositorto surrender the Certificate for cancellation and receive the finaldistribution with respect thereto.  Ifwithin one year after the second notice the Certificate shall not have beensurrendered for cancellation, the Owner Trustee may take appropriate steps, ormay appoint an agent to take appropriate steps, to contact the Depositorconcerning surrender of the Certificate and the cost thereof shall be paid outof the funds and other assets that shall remain subject to this Agreement.  Subject to applicable escheat laws, anyfunds remaining in the Trust after exhaustion of such remedies shall bedistributed by the Paying Agent with respect to the Certificate to theDepositor.

###  

### (d)           Uponthe completion of the winding up of the Trust, the Owner Trustee, at thewritten direction of the Administrator, shall cause the Certificate of Trust tobe canceled by filing a certificate of cancellation with the Secretary of Statein accordance with the provisions of Section 3810 of the Statutory Trust Act,and thereupon, this Agreement shall terminate.

###  

## **Section 9.2**            **NotificationRegarding Bankruptcy of the Depositor**.

##  

Promptly after the occurrence of any Insolvency Eventwith respect to the Depositor, (a) the Depositor shall give the OwnerTrustee, the Indenture Trustee and the Insurer written notice of suchInsolvency Event, (b) the Owner Trustee shall, upon receipt of such writtennotice from the Depositor, give prompt written notice to the Indenture Trusteeof the occurrence of such event and (c) the Indenture Trustee shall, uponreceipt of such written notice from the Depositor or the Owner Trustee, giveprompt written notice to the Noteholders of the occurrence of such event.

 

# **Article XSuccessor Owner Trustees and Additional Owner Trustees**

# ** **

## **Section 10.1**         **EligibilityRequirements for Owner Trustee**.

##  

The Owner Trustee shall at all times (a) be a Personsatisfying the provisions of Section 3807(a) of the Statutory Trust Act, (b) beauthorized to exercise corporate trust powers, (c) have a combined capital,surplus and undivided profits of at least $50,000,000 and be subject tosupervision or examination by federal or state authorities and (d) have (orhave a parent that has) a long-term debt rating of investment grade by each ofthe Rating Agencies or otherwise be

 

23

----

 

acceptable to each of the Rating Agencies and theInsurer (provided that no Insurer Default shall have occurred and becontinuing).  If such Person shallpublish reports of condition at least annually, pursuant to law or to therequirements of the aforesaid supervising or examining authority, then for thepurpose of this Section 10.1 the combined capital and surplus of suchPerson shall be deemed to be its combined capital and surplus as set forth inits most recent report of condition so published.  If at any time the Owner Trustee shall cease to be eligible inaccordance with the provisions of this Section 10.1, the Owner Trusteeshall resign immediately in the manner and with the effect specified in Section10.2.

 

## **Section 10.2**         **Resignationor Removal of Owner Trustee**.

##  

The Owner Trustee may at any time resign and bedischarged from the trusts hereby created by giving written notice thereof tothe Administrator and the Insurer.  Uponreceiving such notice of resignation, the Administrator shall promptly appointa successor Owner Trustee, with the consent of the Insurer, by writteninstrument, in duplicate, one copy of which instrument shall be delivered tothe resigning Owner Trustee and one copy to the successor Owner Trustee.  If no successor Owner Trustee shall havebeen so appointed and have accepted appointment within thirty (30) days afterthe giving of such notice of resignation, the resigning Owner Trustee maypetition any court of competent jurisdiction at the expense of theAdministrator for the appointment of a successor Owner Trustee.

 

If at any time the Owner Trustee shall cease to beeligible in accordance with the provisions of Section 10.1 and shallfail to resign after written request therefor by the Administrator, or if atany time the Owner Trustee shall be legally unable to act, or shall be adjudgedbankrupt or insolvent, or a receiver of the Owner Trustee or of its propertyshall be appointed, or any public officer shall take charge or control of theOwner Trustee or of its property or affairs for the purpose of rehabilitation,conservation or liquidation, then the Administrator may remove the OwnerTrustee.  If the Administrator shallremove the Owner Trustee under the authority of the immediately precedingsentence, the Administrator shall promptly appoint a successor Owner Trustee,with the consent of the Insurer, by written instrument, in duplicate, one copyof which instrument shall be delivered to the removed Owner Trustee and onecopy to the successor Owner Trustee.

 

Any resignation or removal of the Owner Trustee andappointment of a successor Owner Trustee pursuant to this Section 10.2shall not become effective until either (a) acceptance of appointment by thesuccessor Owner Trustee pursuant to Section 10.3 and payment of allamounts owed to the outgoing Owner Trustee in its individual capacity or (b)the Trust has been dissolved pursuant to Section 9.1 hereof and allamounts received, if any, in connection with the liquidation of the Trust shallhave been distributed to the Noteholders and the Depositor and all amountsowing to the Insurer have been paid. The Administrator shall provide notice of such resignation or removal ofthe Owner Trustee to the Indenture Trustee, the Depositor, the Noteholders andeach of the Rating Agencies.

 

## **Section 10.3**         **SuccessorOwner Trustee**.

##  

Any successor Owner Trustee appointed pursuant to Section10.2 shall execute, acknowledge and deliver to the Administrator and to itspredecessor Owner Trustee an

 

24

----

 

instrument accepting such appointment under thisAgreement, and thereupon the resignation or removal of the predecessor OwnerTrustee shall become effective and such successor Owner Trustee, without anyfurther act, deed or conveyance, shall become fully vested with all the rights,powers, duties and obligations of its predecessor under this Agreement, withlike effect as if originally named as Owner Trustee.  The predecessor Owner Trustee shall, upon payment of amountsowing to it in its individual capacity, deliver to the successor Owner Trusteeall documents, statements and monies held by it under this Agreement, and theAdministrator and the predecessor Owner Trustee shall execute and deliver suchinstruments and do such other things as may reasonably be required for fullyand certainly vesting and confirming in the successor Owner Trustee all suchrights, powers, duties and obligations.

 

No successor Owner Trustee shall accept appointment asprovided in this Section 10.3 unless, at the time of such acceptance,such successor Owner Trustee shall be eligible pursuant to Section 10.1.

 

Any successor Owner Trustee appointed pursuant to thisSection 10.3 shall file an amendment to the Certificate of Trust withthe Secretary of State reflecting the name and principal place of business ofsuch successor in the State of Delaware.

 

Upon acceptance of appointment by a successor OwnerTrustee pursuant to this Section 10.3, the Administrator shall mailnotice of such appointment to the Depositor, the Indenture Trustee, theNoteholders and the Rating Agencies.  Ifthe Administrator shall fail to mail such notice within ten (10) days afteracceptance of appointment by the successor Owner Trustee, the successor OwnerTrustee shall cause such notice to be mailed at the expense of theAdministrator.

 

## **Section 10.4**         **Merger orConsolidation of Owner Trustee**.

##  

### (a)           Ifthe Owner Trustee consolidates with, merges or converts into, or transfers allor substantially all its corporate trust business or assets to, another Person,the resulting, surviving or transferee Person without any further act shall bethe successor Owner Trustee; provided, however, that such Personmust be otherwise qualified and eligible under Section 10.1.  The Owner Trustee shall provide the Rating Agencieswith prior written notice of any such transaction.

###  

### (b)           Ifat the time such successor or successors by consolidation, merger or conversionto the Owner Trustee shall succeed to the trusts created by this Agreement aCertificate shall have been authenticated but not delivered, any such successorto the Owner Trustee may adopt the certificate of authentication of anypredecessor trustee and deliver the Certificate so authenticated, and in caseat that time the Certificate shall not have been authenticated, such successorto the Owner Trustee may authenticate the Certificate either in the name of anypredecessor trustee or in the name of the successor to the Owner Trustee.  In all such cases such certificate shallhave the full force which the Certificate or this Agreement provide that thecertificate of the Owner Trustee shall have.

###  

25

----

 

## **Section 10.5**         **Appointmentof Co-Trustee or Separate Trustee**.

##  

### (a)           Notwithstandingany other provisions of this Agreement, at any time, for the purpose of meetingany legal requirement of any jurisdiction in which any part of the Owner TrustEstate or any Financed Vehicle may at the time be located, the Administratorand the Owner Trustee acting jointly shall have the power and authority (withthe consent of the Insurer, provided that no Insurer Default shall haveoccurred and be continuing) and may execute and deliver an instrument toappoint one or more Persons approved by the Owner Trustee to act as co-trusteeor co-trustees, jointly with the Owner Trustee, or separate trustee or separatetrustees, of all or any part of the Owner Trust Estate, and to vest in suchPerson or Persons, in such capacity and for the benefit of the Depositor, suchtitle to the Owner Trust Estate, or any part thereof, and, subject to the otherprovisions of this Section 10.5, such powers, authority, duties,obligations, rights and trusts as the Administrator and the Owner Trustee mayconsider necessary or desirable.  If theAdministrator shall not have joined in such appointment within fifteen (15)days after the receipt by it of a request so to do, the Owner Trustee aloneshall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be requiredto meet the terms of eligibility as a successor trustee under Section 10.1and no notice of the appointment of any co-trustee or separate trustee shall berequired under Section 10.3.

###  

### (b)           Eachseparate trustee and co-trustee shall, to the extent permitted by law, beappointed and act subject to the following provisions and conditions:

###  

#### (i)            allrights, powers, duties and obligations conferred or imposed upon the OwnerTrustee shall be conferred or imposed upon and exercised or performed by theOwner Trustee and such separate trustee or co-trustee jointly (it beingunderstood that such separate trustee or co-trustee shall not be authorized toact separately without the Owner Trustee joining in such act), except to theextent that under any law of any jurisdiction in which any particular act oracts are to be performed the Owner Trustee shall be incompetent or unqualifiedto perform such act or acts, in which event such rights, powers, duties andobligations (including the holding of title to the Owner Trust Estate or anyportion thereof in any such jurisdiction) shall be exercised and performedsingly by such separate trustee or co-trustee, but solely at the direction ofthe Owner Trustee;

####  

#### (ii)           notrustee under this Agreement shall be personally liable by reason of any act oromission of any other trustee under this Agreement; and

####  

#### (iii)          the Administrator and the Owner Trusteeacting jointly may at any time accept the resignation of or remove any separatetrustee or co-trustee.

####  

### (c)           Anynotice, request or other writing given to the Owner Trustee shall be deemed tohave been given to each of the then separate trustees and co-trustees aseffectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shallrefer to this Agreement and the conditions of this Article X.  Each separate trustee and co-trustee, uponits acceptance of the trusts conferred, shall be vested with the estates orproperty specified in its instrument of appointment, either jointly with theOwner Trustee or separately, as may be provided therein, subject to all theprovisions of this Agreement,

###  

### 26

### 

###  

### specificallyincluding every provision of this Agreement relating to the conduct of,affecting the liability of, or affording protection to, the Owner Trustee.  Each such instrument shall be filed with theOwner Trustee and a copy thereof given to the Administrator.

###  

### (d)           Anyseparate trustee or co-trustee may at any time constitute the Owner Trustee itsagent or attorney-in-fact with full power and authority, to the extentpermitted by law, to do any lawful act under or in respect of this Agreement onits behalf and in its name.  If anyseparate trustee or co-trustee shall die, become incapable of acting, resign orbe removed, all of its estates, properties, rights, remedies and trusts shallvest in and be exercised by the Owner Trustee, to the extent permitted by law,without the appointment of a new or successor trustee.

###  

# **ArticleXIMiscellaneous**

# ** **

## **Section 11.1**         **Supplementsand Amendments**.

##  

### (a)           ThisAgreement may be amended from time to time by the Depositor and the OwnerTrustee in its individual capacity, with prior written notice to the RatingAgencies and the Insurer, without the consent of any of the Noteholders, and withthe prior written consent of the Insurer (if no Insurer Default shall haveoccurred and be continuing) to cure any ambiguity, to correct or supplement anyprovision herein that may be inconsistent with any other provision herein or inthe offering document used in connection with the initial sale of the Notes orfor the purpose of adding any provisions to or changing in any manner oreliminating any of the provisions in this Agreement; provided, however,that (i) such action shall not, as evidenced by an Opinion of Counselsatisfactory to the Owner Trustee and the Indenture Trustee, adversely affectin any material respect the interests of any Noteholder and (ii) an Opinion ofCounsel shall be furnished to the Owner Trustee and the Indenture Trustee to theeffect that such amendment (A) will not materially adversely affect the federalor any Applicable Tax State income or franchise taxation of any outstandingNote or any Noteholder and (B) will not cause the Trust to be taxable as acorporation for federal or any Applicable Tax State income or franchise taxpurposes.

###  

### (b)           ThisAgreement may be amended from time to time by the Depositor and the OwnerTrustee in its individual capacity, with prior written notice to the RatingAgencies and the Insurer, with the prior written consent of the Insurer (if noInsurer Default shall have occurred and be continuing) and with the consent ofthe Holders (as defined in the Indenture) of Class A Notes evidencing not lessthan 51% of the Class A Note Balance, for the purpose of adding any provisionsto, or changing in any manner or eliminating any of the provisions of, thisAgreement or modifying in any manner the rights of the Noteholders; provided,however, that, subject to the express rights of the Insurer under theTransaction Documents, no such amendment shall (i) increase or reduce inany manner the amount of, or accelerate or delay the timing of, or change theallocation or priority of, collections of payments on the Contracts ordistributions that are required to be made on any Note, or change the Class ANote Rate, or (ii) reduce the aforesaid percentage of the Class A Note Balancerequired to consent to any such amendment, without the consent of all theNoteholders affected thereby or

###  

### 27

### 

###  

### (iii) adverselyaffect the ratings of the Class A Notes by the Rating Agencies (without givingeffect to the Policy) without the consent of the Holders (as defined in theIndenture) of Class A Notes evidencing not less than 66 2/3% of the aggregateprincipal amount of the then outstanding Notes; and, providedfurther,that (A) such action shall not, as evidenced by an Opinion of Counselsatisfactory to the Owner Trustee, the Insurer and the Indenture Trustee,adversely affect in any material respect the interests of any Noteholder and(B) an Opinion of Counsel shall be furnished to the Indenture Trustee, theInsurer and the Owner Trustee to the effect that such amendment (1) will notmaterially adversely affect the federal or any Applicable Tax State income orfranchise taxation of any outstanding Note or any Noteholder and (2) will notcause the Trust to be taxable as a corporation for federal or any ApplicableTax State income or franchise tax purposes.

###  

### (c)           Promptlyafter the execution of any such amendment or consent, the Owner Trustee shallfurnish, at the expense of the Depositor, written notification of the substanceof such amendment or consent to the Indenture Trustee and each of the RatingAgencies.

###  

### (d)           Itshall not be necessary for the consent of the Noteholders or the IndentureTrustee pursuant to this Section 11.1 to approve the particular form ofany proposed amendment or consent, but it shall be sufficient if such consentshall approve the substance thereof. The manner of obtaining such consents (andany other consents provided for in this Agreement or in any other TransactionDocument) and of evidencing the authorization of the execution thereof shall besubject to such reasonable requirements as the Owner Trustee may prescribe.

###  

### (e)           Promptlyafter the execution of any amendment to the Certificate of Trust, the OwnerTrustee shall file such amendment or cause such amendment to be filed with theSecretary of State.

###  

### (f)            TheOwner Trustee may, but shall not be obligated to, enter into any such amendmentthat affects the Owner Trustee’s own rights, duties, liabilities or immunities(as such or in its individual capacity) under this Agreement or otherwise.

###  

### (g)           Priorto the execution of any amendment to this Agreement or any amendment to anyother agreement to which the Trust is a party, the Owner Trustee shall beentitled to receive and shall be fully protected in relying upon an Opinion ofCounsel stating that the execution of such amendment is authorized or permittedby this Agreement and that all conditions precedent in this Agreement to theexecution and delivery of such amendment have been satisfied.  Notwithstanding any other provision hereinor elsewhere, no amendment, supplement, waiver or consent of or with respect toany other Transaction Document that affects any right, power, authority, duty,benefit, protection, privilege, immunity or indemnity of the Owner Trustee (assuch or in its individual capacity) shall be binding on the Owner Trustee (assuch or in its individual capacity) unless the Owner Trustee (as such and inits individual capacity) shall have expressly consented thereto in writing.

###  

28

----

 

## **Section 11.2**         **No LegalTitle to Owner Trust Estate in the Depositor**.

##  

The Depositor shall not have legal title to any partof the Owner Trust Estate.  TheDepositor shall be entitled to receive distributions with respect to itsundivided beneficial interest therein only in accordance with Articles Vand IX.  No transfer, by operationof law or otherwise, of any right, title or interest of the Depositor in and toits beneficial interest in the Owner Trust Estate shall operate to terminate ordissolve this Agreement, the Trust, or the trusts hereunder or entitle anytransferee to an accounting or to the transfer to it of legal title to any partof the Owner Trust Estate.

 

## **Section 11.3**         **Limitationon Rights of Others**.

##  

The provisions of this Agreement are solely for thebenefit of the Owner Trustee (as such and in its individual capacity), theInsurer, the Depositor, the Administrator, the Servicer, the IndemnifiedParties and, to the extent expressly provided herein, the Indenture Trustee andthe Noteholders, and nothing in this Agreement or the Certificate, whetherexpress or implied, shall be construed to give to any other Person any legal orequitable right, remedy or claim in the Owner Trust Estate or under or inrespect of this Agreement or any covenants, conditions or provisions containedherein.

 

## **Section11.4**         **Notices**.

##  

All demands, requests, directions, instructions,notices and other communications under this Agreement shall be in writing,personally delivered, sent by telecopier, overnight courier or mailed bycertified mail, return receipt requested, and shall be deemed to have been dulygiven upon receipt 1. in the case of the Owner Trustee, at the Corporate TrustOffice, with a copy to Deutsche Bank Trust Company Americas, 60 Wall Street, 26thFloor, New York, New York 10005, Attention: Structured Finance Services 2. in the case of the Depositor, at thefollowing address: 675 Bering Drive, Suite 710, Houston, Texas 77057, 3. in thecase of the Indenture Trustee, at the following address: Sixth Street andMarquette Avenue MAC N9311-161, Minneapolis, Minnesota 55479, Attention:Corporate Trust Services - Asset-Backed Administration, 4. in the case ofMoody’s, at the following address: Moody’s Investors Service, Inc., ABSMonitoring Department, 99 Church Street, New York, New York 10007, 5. in thecase of S&P, at the following address: Standard & Poor’s RatingsServices, a division of The McGraw-Hill Companies, Inc., 55 Water Street, 43rdFloor, New York, New York 10041, Attention: Asset Backed SurveillanceDepartment, and 6. in the case of the Insurer, at the following address: MBIAInsurance Corporation, 113 King Street, Armonk, New York 10504, Attention:Insured Portfolio Management, Structured Finance.

 

## **Section11.5**         **Severability**.

##  

If any provision of this Agreement or the Certificateshall be held for any reason whatsoever invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions of thisAgreement and the Certificate shall not in any way be affected or impairedthereby.

 

29

----

 

## **Section 11.6**         **SeparateCounterparts**.

##  

This Agreement may be executed in any number ofcounterparts, each of which counterparts when so executed shall be deemed to bean original, and all of which counterparts shall together constitute but oneand the same instrument.

 

## **Section 11.7**         **Successorsand Assigns**.

##  

All covenants and agreements in this Agreement shallbe binding upon, and inure to the benefit of the Depositor, the Insurer and theOwner Trustee (as such and in its individual capacity) and its successors asherein provided.

 

## **Section 11.8**         **Covenantsof the Depositor**.

##  

The Depositor shall not at any time institute againstthe Trust, or join in any institution against the Trust of, any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings, or otherproceedings under any United States federal or state bankruptcy or similar lawin connection with any obligations relating to the Notes, this Agreement or anyof the other Transaction Documents.

 

## **Section11.9**         **No Petition**.

##  

The Owner Trustee (not in its individual capacity butsolely as Owner Trustee), by entering into this Agreement and the Depositor,the Indenture Trustee and each Noteholder, by accepting the benefits of thisAgreement, hereby covenant and agree and shall be deemed to covenant and agreethat they will not at any time institute against or knowingly or intentionallycooperate or encourage any other Person in instituting against, the Depositoror the Trust, in any, bankruptcy, reorganization, arrangement, insolvency orliquidation proceedings, or other proceedings under any United States federalor state bankruptcy or similar law in connection with any obligations relatingto the Notes, this Agreement or any of the other Transaction Documents.

 

## **Section 11.10**               **Headings**.

##  

The Article and Section headings herein and the Tableof Contents are for convenience only and shall not define or limit any of theterms or provisions hereof.

 

## **Section 11.11**               **GoverningLaw**.

##  

This Agreement shall be construed in accordance withthe laws of the State of Delaware and the obligations, rights and remedies ofthe parties under this Agreement shall be determined in accordance with suchlaws.

 

## **Section 11.12**               **Amendment of Trust Agreement**.

##  

This Agreement amends, restates and replaces in itsentirety the Original Trust Agreement.

 

30

----

 

## **Section 11.13**               **Owner Trustee Presumption**.

##  

For all purposes, the Owner Trustee shall be entitledto presume (and shall be fully protected in presuming) that no Insurer Defaulthas occurred or exists unless a Responsible Officer of the Owner Trustee hasobtained actual knowledge or received written notice to the contrary.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

31

----

 

IN WITNESS WHEREOF, the parties hereto have causedthis Trust Agreement to be duly executed by their respective officers,thereunto duly authorized and duly attested, all as of the day and year firstabove written.

 
|   | FIRST INVESTORS  AUTO FUNDING CORPORATION, |
|--------|--------------------------------------------|
|   | as Depositor                               |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |   |   |
|   | Title:                                     |   |   |
|   |                                       |
|   |                                       |
|   | DEUTSCHE BANK  TRUST COMPANY DELAWARE,     |
|   | as Owner Trustee                           |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |   |   |
|   | Title:                                     |   |   |
|        |                                            |  |  |  |  |

 

----

 

ExhibitAForm of Certificate

 

**THIS CERTIFICATEOR ANY INTEREST HEREIN MAY NOT BE TRANSFERRED,ASSIGNED, EXCHANGED OR CONVEYED**

** **

FIRST INVESTORSAUTO OWNER TRUST 2003-A

 

CERTIFICATE

 

Evidencing a beneficial interest in the property ofthe Trust, as defined below, which property includes a pool of retailinstallment sales contracts secured by new and used automobiles and light-dutytrucks sold to the Trust by First Investors Auto Funding Corporation.  The property of the Trust has been pledgedto the Indenture Trustee pursuant to the Indenture to secure the payment of theNotes issued thereunder.

 

(This Certificate does not represent an interest in orobligation of, First Investors Auto Funding Corporation, Deutsche Bank TrustCompany Delaware, First Investors Financial Services, Inc. or any of theirrespective affiliates, except to the extent described below.)

 

THIS CERTIFIES THAT First Investors Auto FundingCorporation is the registered owner of a beneficial interest in First InvestorsAuto Owner Trust 2003-A (the “*Trust*”) formed by First Investors AutoFunding Corporation, a Delaware company (the “*Depositor*”).

 

The Trust was created pursuant to an initial TrustAgreement, dated as of November 12, 2003 as amended by the Amended and RestatedTrust Agreement (as further amended, supplemented or otherwise modified and ineffect from time to time, the “*TrustAgreement*”), by andbetween the Depositor and Deutsche Bank Trust Company Delaware, as ownertrustee (the “Owner Trustee”), a summary of certain of the pertinentprovisions of which is set forth below. To the extent not otherwise definedherein, the capitalized terms used herein have the meanings assigned to them inthe Trust Agreement or the Sale and Allocation Agreement, dated as of November20, 2003 (as amended, supplemented or otherwise modified and in effect fromtime to time, the “*Sale and Allocation Agreement*”), byand among the Trust, the Indenture Trustee, the Depositor and First InvestorsServicing Corporation, as servicer (the “*Servicer*”), as applicable.

 

This certificate is the Certificate referred to in theTrust Agreement.  This Certificate isissued under and is subject to the terms, provisions and conditions of theTrust Agreement, to which Trust Agreement the Depositor, by virtue of theacceptance hereof, assents and by which the Depositor is bound. The property ofthe Trust includes: (i) the Contracts; (ii) all amounts received on or inrespect of the Contracts after the applicable Cutoff Date (except interestreceived which is accrued prior to the Cutoff Date); (iii) the CollectionAccount, the Reserve Account, the Prefunding Account, the Class A Note PaymentAccount and the Class B Note Payment Account and all amounts, securities,financial assets, investments and other property deposited in or credited toany of the foregoing and all proceeds thereof; (iv) the security interests inthe Financed Vehicles; (v) all proceeds from claims on or refunds of premiumswith respect to physical damage, theft, credit life and credit disabilityinsurance policies and extended warranties relating to the Financed Vehicles orthe related Obligors; (vi) any Liquidation

 

A-1

----

 

Proceeds; (vii) all of the Trust’s rights to theContract Files; (viii) all of the Trust’s rights under the Servicing Agreement,the Contribution Agreement and the Sale and Allocation Agreement to cause theServicer, the Seller and the Depositor, respectively, to purchase Contractsaffected materially and adversely by breaches of the representations andwarranties of the Servicer made in the Servicing Agreement; and (ix) allpresent and future claims, demands, causes of action and chooses in action inrespect of any or all of the foregoing and all payments on or under and allproceeds of every kind and nature whatsoever in respect of any or all of theforegoing, including all proceeds of the conversion thereof, voluntary orinvoluntary, into cash or other liquid property, all cash proceeds, accounts,accounts receivable, notes, drafts, acceptances, chattel paper, checks, depositaccounts, insurance proceeds, condemnation awards, rights to payment of any andevery kind and other forms of obligations and receivables, instruments andother property which at any time constitute all or part of or are included inthe proceeds of any of the foregoing. THE RIGHTS OF THE TRUST IN THE FOREGOING PROPERTY OF THE TRUST HAVE BEENPLEDGED TO THE INDENTURE TRUSTEE TO SECURE THE PAYMENT OF THE NOTES.

 

Under the Trust Agreement, there will be distributedon the twentieth day of each month or, if such twentieth day is not a BusinessDay, the next Business Day (each, a “*Payment Date*”), commencing on December22, 2003, to the Depositor such amount to be distributed to the Depositor inaccordance with the Sale and Allocation Agreement on such Payment Date.Notwithstanding the foregoing, following the occurrence and during thecontinuation of an Event of Default under the Indenture which has resulted inan acceleration of the Notes or following certain events of insolvency withrespect to the Depositor, no distributions will be made on the Certificateuntil all the Notes have been paid in full.

 

THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREESTHAT ITS RIGHTS TO RECEIVE DISTRIBUTIONS IN RESPECT OF THIS CERTIFICATE ARESUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS DESCRIBED IN THE SALE ANDALLOCATION AGREEMENT AND THE TRUST AGREEMENT.

 

It is the intent of the Depositor and the Servicerthat, for purposes of federal income, state and local income tax and any otherincome taxes, the Trust will not be treated as an association or publiclytraded partnership taxable as a corporation. The Depositor by acceptance of its interest in the Certificate agrees tosuch treatment and agrees to take no action inconsistent with such treatment.

 

The Depositor, by its acceptance of this Certificateor any beneficial interest therein, covenants and agrees and shall be deemed tocovenant and agree that the Depositor will not at any time institute against orknowingly or intentionally cooperate or encourage any other Person ininstituting against the Trust, or join in any institution against the Trust,any bankruptcy, reorganization, arrangement, insolvency or liquidationproceedings, or other proceedings under any United States federal or statebankruptcy or similar law in connection with any obligations relating to theNotes, the Trust Agreement or any of the other Transaction Documents (asdefined in the Trust Agreement).

 

Distributions on this Certificate will be made asprovided in the Trust Agreement by the Paying Agent by wire transfer or checkmailed to the Depositor without the presentation or

 

A-2

----

 

surrender of this Certificate or the making of anynotation hereon.  Except as otherwiseprovided in the Trust Agreement and notwithstanding the above, the finaldistribution on this Certificate will be made after due notice by the OwnerTrustee of the pendency of such distribution and only upon presentation andsurrender of this Certificate at the office or agency maintained for thepurpose by the Paying Agent.

 

Unless the certificate of authentication hereon shallhave been executed by an authorized officer of the Owner Trustee, or itsauthenticating agent by manual signature, this Certificate shall not entitlethe Depositor to any benefit under the Trust Agreement or the Sale andAllocation Agreement or be valid for any purpose.

 

This Certificate shall be construed in accordance withthe laws of the State of Delaware, and the obligations, rights and remedies ofthe parties hereunder shall be determined in accordance with such laws.

 

A-3

----

 

IN WITNESS WHEREOF, the Owner Trustee, on behalf ofthe Trust and not in its individual capacity, has caused this Certificate to beduly executed.

 
|   | FIRST INVESTORS AUTO  OWNER TRUST 2003-A |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | Deutsche Bank Trust  Company Delaware, not in its individual capacity but solely as Owner Trustee |
|   |                                     |
|   | By:                                      |   |   |
|   |                                     | Name: |
|   |                                     | Title: |
|        |                                          |  |  |  |

 

 

**OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION**

 

This is theCertificate referred to in the within-mentioned Trust Agreement.

 

Dated: November      , 2003

 

 

Deutsche Bank TrustCompanyAmericas not in its individual capacitybut solely as Authenticating Agent forthe Owner Trustee

 
| By:                 |                     |   | By: |   |   |
|---------------------|--------------------------|--------|-----|--------|--------|
| Authorized  Officer | as  Authenticating Agent |

** **

**A-4**

----

 

**ExhibitB**Certificate of Trust

** **

THIS TRUST AGREEMENT, dated as of November 12, 2003,between FIRST INVESTORS AUTO FUNDING CORPORATION, a Delaware corporation, asdepositor (the “Depositor”), and DEUTSCHE BANK TRUST COMPANY DELAWARE, aDelaware banking corporation, which is acting hereunder not in its individualcapacity but solely as owner trustee (the “Owner Trustee”).  The Depositor and the Owner Trustee herebyagree as follows:

 

1.             Creationof Trust.

 

(a)           Thetrust created hereby shall be known as “First Investors Auto Owner Trust2003-A.”

 

(b)           TheDepositor hereby assigns, transfers, conveys and sets over to the Owner Trusteethe sum of $1.  The Owner Trustee herebyacknowledges receipt of such amount in trust from the Depositor, which amountshall constitute the initial trust estate. The Owner Trustee hereby declares that it will hold the trust estate intrust for the Depositor.  It is theintention of the parties hereto that the Trust created hereby constitute astatutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del.C. § 3801 etseq. and that this Trust Agreementconstitute the governing instrument of the Trust.  The Owner Trustee is hereby authorized and directed to executeand file a certificate of trust with the Delaware Secretary of State in the formattached hereto.

 

(c)           TheDepositor and the Owner Trustee will enter into an amended and restated TrustAgreement, satisfactory to each such party, to provide for the contemplatedoperation of the Trust created hereby. Prior to the execution and delivery of such amended and restated TrustAgreement, the Owner Trustee shall not have any duty or obligation hereunder orwith respect to the trust estate, except as may be required by applicablelaw.  The Owner Trustee is furtherauthorized and directed to enter into such other documents and take such otheraction as the Depositor specifically directs in written instructions deliveredto the Owner Trustee; provided, however, the Owner Trustee shall not berequired to take any action if the Owner Trustee shall determine, or shall beadvised by counsel, that such action is likely to result in personal liabilityor is contrary to applicable law or any agreement to which the Owner Trustee isa party.

 

2.             Concerningthe Owner Trustee.

 

(a)           Exceptas otherwise expressly required by Section 1 of this Trust Agreement, the OwnerTrustee shall not have any duty or liability with respect to the administrationof the Trust, the investment of the Trust’s property or the payment ofdividends or other distributions of income or principal to the Trust’sbeneficiaries, and no implied obligations shall be inferred from this TrustAgreement on the part of the Owner Trustee. The Owner Trustee shall not be liable for the acts or omissions of theDepositor nor shall the Owner Trustee be liable for any act or omission by itin good faith in accordance with the directions of the Depositor.

 

B-1

----

 

(b)           TheOwner Trustee accepts the trusts hereby created and agrees to perform itsduties hereunder with respect to the same but only upon the terms of this TrustAgreement.  The Owner Trustee shall notbe personally liable under any circumstances, except for its own willfulmisconduct or gross negligence.  Inparticular, but not by way of limitation:

 

(i)            TheOwner Trustee shall not be personally liable for any error of judgment made ingood faith by an officer or employee of the Owner Trustee;

 

(ii)           Noprovision of this Trust Agreement shall require the Owner Trustee to expend orrisk its personal funds or otherwise incur any financial liability in theperformance of its rights or duties hereunder, if the Owner Trustee shall havereasonable grounds for believing that repayment of such funds or adequateindemnity against such risk or liability is not reasonably assured or providedto it;

 

(iii)          Under no circumstance shall the Owner Trusteebe personally liable for any representation, warranty, covenant or indebtednessof the Trust;

 

(iv)          TheOwner Trustee shall not be personally responsible for or in respect of thegenuineness, form or value of the Trust property, the validity or sufficiencyof this Trust Agreement or for the due execution hereof by the Depositor;

 

(v)           Inthe event that the Owner Trustee is unsure of the course of action to be taken byit hereunder, the Owner Trustee may request instructions from the Depositor andto the extent the Owner Trustee follows such instructions in good faith itshall not be liable to any person.  Inthe event that no instructions are provided within the time requested by theOwner Trustee, it shall have no duty or liability for its failure to take anyaction or for any action it takes in good faith;

 

(vi)          Allfunds deposited with the Owner Trustee hereunder may be held in a non-interestbearing trust account and the Owner Trustee shall not be liable for anyinterest thereon or for any loss as a result of the investment thereof at thedirection of the Depositor; and

 

(vii)         To the extent that, at law or in equity, theOwner Trustee has duties and liabilities relating thereto to the Depositor orthe Trust, the Depositor agrees that such duties and liabilities are replacedby the terms of this Trust Agreement.

 

(c)           TheOwner Trustee shall incur no liability to anyone in acting upon any documentbelieved by it to be genuine and believed by it to be signed by the properparty or parties.  The Owner Trustee mayaccept a certified copy of a resolution of the board of directors or othergoverning body of any corporate party as conclusive evidence that suchresolution has been duly adopted by such body and that the same is in fullforce and effect.  As to any fact ormatter the manner of ascertainment of which is not specifically prescribedherein, the Owner Trustee may for all purposes hereof rely on a certificate,signed by the Depositor, as to such fact or matter, and such certificate shallconstitute full protection to the Owner Trustee for any action taken or omittedto be taken by it in good faith in reliance thereon.

 

(d)           Inthe exercise or administration of the trusts hereunder, the Owner Trustee (i)may act directly or, at the expense of the Trust, through agents or attorneys,and the

 

B-2

----

 

Owner Trusteeshall not be liable for the default or misconduct of such agents or attorneysif such agents or attorneys shall have been selected by the Owner Trustee ingood faith, and (ii) may, at the expense of the Trust, consult with counsel,accountants and other experts, and it shall not be liable for anything done,suffered or omitted in good faith by it in accordance with the advice oropinion of any such counsel, accountants or other experts.

 

(e)           Exceptas expressly provided in this Section 2, in accepting and performing the trustshereby created, the Owner Trustee acts solely as trustee hereunder and not inits individual capacity, and all persons having any claim against the OwnerTrustee by reason of the transactions contemplated by this Trust Agreementshall look only to the Trust’s property for payment or satisfaction thereof.

 

3.             Compensationand Indemnification.

 

(a)           TheDepositor hereby agrees to (i) compensate the Owner Trustee in accordance witha separate fee agreement with the Owner Trustee, (ii) reimburse the OwnerTrustee for all reasonable expenses (including reasonable fees and expenses ofcounsel and other experts) and (iii) indemnify, defend and hold harmless theOwner Trustee and any of the officers, directors, employees and agents of theOwner Trustee (the “Indemnified Persons”) from and against any and all losses,damages, liabilities, claims, actions, suits, costs, expenses, disbursements(including the reasonable fees and expenses of counsel), taxes and penalties ofany kind and nature whatsoever (collectively, “Expenses”), to the extent thatsuch Expenses arise out of or are imposed upon or asserted at any time againstsuch Indemnified Persons with respect to the performance of this TrustAgreement, the creation, operation or termination of the Trust or thetransactions contemplated hereby; provided, however, that theDepositor shall not be required to indemnify any Indemnified Person for anyExpenses which are a result of the willful misconduct, bad faith or grossnegligence of such Indemnified Person.

 

(b)           Tothe fullest extent permitted by law, Expenses to be incurred by an IndemnifiedPerson shall, from time to time, be advanced by, or on behalf of, the Depositorprior to the final disposition of any matter upon receipt by the Depositor ofan undertaking by, or on behalf of, such Indemnified Person to repay suchamount if it shall be determined that the Indemnified Person is not entitled tobe indemnified under this Agreement.

 

(c)           Assecurity for any amounts owing to the Owner Trustee hereunder, the OwnerTrustee shall have a lien against the Trust property, which lien shall be priorto the rights of the Depositor or any other beneficial owner of the Trust.  The obligations of the Depositor under thisSection 3 shall survive the termination of this Trust Agreement.

 

4.             TheOwner Trustee may resign upon thirty days prior notice to the Depositor.  If no successor has been appointed withinsuch thirty day period, the Owner Trustee may, at the expense of the Trust,petition a court to appoint a successor trustee.  Any Person into which the Owner Trustee may be merged or withwhich it may be consolidated, or any Person resulting from any merger orconsolidation to which the Owner Trustee shall be a party, or any Person whichsucceeds to all or substantially all of the corporate trust business of theOwner Trustee, shall be the successor Owner Trustee under this Trust Agreementwithout the execution,

 

B-3

----

 

delivery or filingof any paper or instrument or further act to be done on the part of the partieshereto, except as may be required by applicable law.

 

5.             ThisTrust Agreement represents the entire agreement between the parties hereto withrespect to the subject matter hereof, and supersedes all prior agreements andunderstandings between the parties, whether written or oral.

 

6.             ThisTrust Agreement shall be governed by and construed in accordance with the lawsof the State of Delaware, without reference to its conflict of law provisions,and the obligations, rights and remedies of the parties hereunder shall be determinedin accordance with such laws.  Sections3540 and 3561 of Title 12 of the Delaware Code shall not apply to the Trust.

 

7.             ThisTrust Agreement may be executed in two or more counterparts, each of whichshall be an original, but all such counterparts shall together constitute oneand the same agreement.

 

8.             ThisTrust Agreement may be amended and restated by the parties hereto as necessaryto provide for the operation of the Trust; provided, however, that the OwnerTrustee shall not be required to enter into any amendment hereto whichadversely affects the rights, duties or immunities of the Owner Trustee.

 

9.             TheTrust may dissolve at the election of the Depositor.  The Trust shall dissolve and this Trust Agreement shall terminateunless the Trust issues securities within one year after the date hereof.  Upon dissolution, the Owner Trustee shallfile a certificate of cancellation in accordance with the Act and apply thefunds deposited with it pursuant to Section 1(b) above to reimburse the OwnerTrustee for any filing fees or other expenses in connection therewith.  Any remaining funds shall, after payment ofany other expenses of the Trust, be returned to the Depositor.

 

[Signature pagefollows]

 

B-4

----

 

IN WITNESS WHEREOF, the parties hereto have causedthis Trust Agreement to be duly executed by their respective officers hereuntoduly authorized, as of the day and year first above written.

 
|   | DEUTSCHE BANK  TRUST COMPANY   DELAWARE   |
|--------|-------------------------------------------|
|   | as Owner Trustee                          |
|   |                                      |
|   |                                      |
|   | By:                                       |   |   |
|   |                                      | Name: |
|   |                                      | Title: |
|   |                                      |
|   |                                      |
|   | FIRST INVESTORS  AUTO FUNDING CORPORATION |
|   | as Depositor                              |
|   |                                      |
|   |                                      |
|   | By:                                       |   |   |
|   |                                      | Name: |
|   |                                      | Title: |
|        |                                           |  |  |  |

 

B-5

----

 
|   | Acknowledged and  Agreed to:          |
|--------|---------------------------------------|
|   |                                  |
|   |                                  |
|   | DEUTSCHE BANK  TRUST COMPANY AMERICAS |
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   |                                  | Name: |
|   |                                  | Title: |

 

B-6

----