**Exhibit 10.114**

 

**EXECUTION COPY**

 

 

FIRST INVESTORS AUTOFUNDING CORPORATION,as Depositor,

 

and

 

WELLS FARGO DELAWARETRUST COMPANY,as Owner Trustee

 

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AMENDED AND RESTATEDTRUST AGREEMENTDated as of May 5, 2005

 

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**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                                        |   |
| Section 3.7  | Regarding  Indenture Trustee                                        |   |
|              |                                                                |   |
| 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 |   |
|                   |                                                                     |        |  |

 

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| Section 6.5   | No  Action Except Under Specified Documents or Instructions |   |
|--------------------|-------------------------------------------------------------|--------|
| Section 6.6   | Restrictions                                                |   |
|               |                                                        |   |
| 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                                   |   |
|                    |                                                             |        |  |

 

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| Exhibit A | Form of Certificate |   |
|----------------|--------------------------|--------|
| Exhibit B | Certificate of Trust     |   |

 

iii

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AMENDED AND RESTATEDTRUST AGREEMENT, dated as of May 5, 2005 (as amended, supplemented orotherwise modified and in effect from time to time, this “*Agreement*”),between FIRST INVESTORS AUTO FUNDING CORPORATION, a Delaware corporation, asdepositor (the “*Depositor*”),and WELLS FARGO DELAWARE TRUST COMPANY, a Delaware limited purpose trustcompany, (in its capacity as owner trustee and not in its individual capacity,the “*Owner Trustee*”).

 

WHEREAS, the Depositorand the Owner Trustee have entered into a Trust Agreement, dated as of April 15,2005 (the “*Original Trust Agreement*”);and

 

WHEREAS, the Depositorand Owner Trustee desire to amend and restate the Original Trust Agreement inits entirety as provided herein.

 

NOW, THEREFORE, inconsideration of the premises and mutual covenants herein contained and othergood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, it is hereby agreed by and between the Depositor and theOwner Trustee that the Original Trust Agreement be amended and restated andreplaced in its entirety as follows:

 

# **Article IDefinitions**

# ** **

## **Section 1.1**                                   **Definitions**.

##  

Except as otherwisespecified herein or as the context may otherwise require, the following termsshall have the respective meanings set forth below for all purposes of thisAgreement.

 

Administrator:  First Investors Financial Services, Inc.,or any successor administrator.

 

Affiliate:  With respect to any Person, any other Persondirectly or indirectly controlling, controlled by or under direct or indirectcommon control with such Person.  Forpurposes of this definition, “control” when used with respect to any Personshall mean the power to direct the management and policies of such Person,directly or indirectly, whether through the ownership of voting securities, bycontract or otherwise.

 

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 certificate evidencing the beneficial interest of the holder thereofin the Trust as specified therein, substantially in the form of Exhibit Aattached hereto.

 

Certificate of Trust:  The Certificate of Trust attached hereto as Exhibit Bfiled with the Secretary of the State of Delaware on April 15, 2005 forthe Trust pursuant to Section 3810(a) of the Statutory Trust Act.

 

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Certificate Register:  As defined in Section 3.4.

 

Certificate Registrar:  As defined in Section 3.4.

 

Code:  The Internal Revenue Code of 1986, as amendedfrom 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, 919 North Market Street, Suite 700, Wilmington Delaware 19801,Attention: Corporate Trust Administration, or at such other address as theOwner Trustee may designate from time to time by notice to the Depositor, orthe principal corporate trust office of any successor Owner Trustee at theaddress designated by such successor Owner Trustee by notice to the Depositor.

 

Depositor:  First Investors Auto Funding Corporation, aDelaware corporation, in its capacity as depositor under this Agreement, andits successors.

 

Depositor Account:  As defined in Section 5.1.

 

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

 

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

 

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

 

Final Note Payment Date:  July 16, 2012.

 

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

 

Indenture:  The Indenture, dated as of May 5, 2005between the Trust and Wells Fargo Bank, National Association, a nationalbanking association, as indenture trustee and as custodian, as amended,supplemented or otherwise modified and in effect from time to time.

 

Independent:  As defined in the Indenture.

 

Initial Pool Balance:  $150,920,720.68.

 

Insurer:  MBIA Insurance Corporation, a New York stockinsurance 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 to Article IIof the Sale and Allocation Agreement and all monies deposited from time to timein the Collection Account, the Note Payment Accounts, the Prefunding Accountand the Reserve Account.

 

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Owner Trustee:  Wells Fargo Delaware Trust Company, aDelaware limited purpose trust company, not in its individual capacity butsolely as Owner Trustee under this Agreement, and any successor Owner Trusteeunder this Agreement.

 

Paying Agent:  The Owner Trustee or any other Personappointed as Paying Agent with respect to the Certificate in accordance with Section 3.6.

 

Prepayment Date:  The Payment Date specified by the Servicerpursuant to Section 5.16 of the Sale and Allocation Agreement.

 

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 AllocationAgreement:  The Saleand Allocation Agreement, dated as of the date hereof, by and among the Depositor,the Indenture Trustee, the Securities Intermediary, the Trust and the Servicer,as amended, supplemented or otherwise modified and in effect from time 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 or otherwise modified and in effect from time to time.

 

Transfer:  To sell, transfer, assign, participate,pledge or otherwise dispose 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 bythis Agreement.

 

## **Section 1.2**                                   **Other Definitional 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.

 

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### (c)                                  Asused in this Agreement and in any certificate or other documents made ordelivered pursuant hereto or thereto, accounting terms not defined in thisAgreement or in any such certificate or other document, and accounting termspartly defined in this Agreement or in any such certificate or other documentto the extent not defined, shall have the respective meanings assigned to themunder generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreementor in any such certificate or other document are inconsistent with the meaningsof such terms under generally accepted accounting principles, the definitionscontained in this Agreement or in any such certificate or other document shallcontrol.

###  

### (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 references contained in thisAgreement are references to Articles, Sections and Exhibits in or to thisAgreement 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**

# ** **

## **Section 2.1**                                   **Name**.

##  

The name of the Trustshall be “First Investors Auto Owner Trust 2005-A,” in which name the Trust andthe Owner Trustee shall have power and authority and each is hereby authorizedand empowered to conduct the business of the Trust, make and execute contractsand other instruments on behalf of the Trust and sue and be sued.

 

## **Section 2.2**                                   **Office**.

##  

The office of the Trustshall be in care of the Owner Trustee at the Corporate Trust Office or at suchother address in the State of Delaware as the Owner Trustee may designate bywritten notice to the Depositor.

 

## **Section 2.3**                                   **Purposes and Powers**.

##  

The purpose of the Trustis, and the Trust shall have power and authority and is hereby authorized andempowered, without the need for further action on the part of the Trust, andthe Owner Trustee shall have power and authority and is hereby authorized andempowered, in the 

 

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name and on behalfof 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:

 

### (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 ReserveAccount and the Prefunding Account, to pay the organizational, start-up andtransactional expenses of the Trust and to pay the balance to the Depositorpursuant to the Sale and Allocation Agreement in consideration for the purchaseof Contracts;

###  

### (c)                                  topay interest on (with respect to the Class A Notes) and principal of theNotes and 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 herebyauthorized to engage in the foregoing activities.  The Trust shall not engage in any activityother than in connection with the foregoing or other than as required orauthorized by the terms of this Agreement or the other Transaction Documents.

 

Any acts of the OwnerTrustee and of any person designated and authorized to act by the Depositorwhich acts would have been authorized by this Agreement except that such actswere taken prior to the date of this Agreement are hereby severally authorized,ratified, confirmed and adopted as acts in the name and on behalf of the Trust,including without limitation the execution, delivery and performance by theTrust of the Purchase Agreement, dated April 27, 2005, among the Trust,the Seller and Wachovia Capital Markets, LLC.

 

## **Section 2.4**                                   **Appointment of Owner Trustee**.

##  

The Depositor herebyappoints Wells Fargo Delaware Trust Company as owner trustee, as trustee of theTrust effective as of the date hereof, to have all the rights, powers andauthority set forth herein and in the Statutory Trust Act and Wells FargoDelaware Trust Company, as owner trustee, hereby accepts such appointment.

 

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## **Section 2.5**                                   **Organizational Matters**.

##  

The Depositor shall payfrom amounts payable to it pursuant to Section 3.5(d)(xi) of the Sale andAllocation Agreement, the organizational expenses of the Trust as they mayarise or shall, upon the request of the Owner Trustee, promptly reimburse theOwner Trustee, in its individual capacity, for any such expenses paid by theOwner Trustee, in its individual capacity. The net proceeds from the sale ofthe Class A Notes shall be used to purchase Contracts and related propertyfrom the Depositor in accordance with Section 2.1 of the Sale andAllocation Agreement and to fund the Reserve Account and the Prefunding Accountin the amounts required by the Sale and Allocation Agreement.

 

## **Section 2.6**                                   **Declaration of Trust**.

##  

The Owner Trustee herebydeclares that it will hold the Owner Trust Estate in trust upon and subject tothe conditions set forth herein for the use and benefit of the Depositor,subject to the obligations of the Trust under the Transaction Documents.  It is the intention of the parties heretothat the Trust constitute a statutory trust under the Statutory Trust Act and thatthis Agreement constitute the governing instrument of such statutorytrust.  Effective as of the date hereof,the Owner Trustee shall have all rights, powers and authority set forth hereinand in the Statutory Trust Act with respect to accomplishing the purposes ofthe Trust. The Owner Trustee shall have power and authority and is herebyauthorized and empowered to execute and file any certificate to be filed underthe Statutory Trust Act.

 

## **Section 2.7**                                   **Title of Trust Property**.

##  

Legal title to theentirety of the Owner Trust Estate shall be vested at all times in the Trust asa separate legal entity, except where applicable law in any jurisdictionrequires title to any part of the Owner Trust Estate to be vested in a trusteeor trustees, in which case title shall be deemed to be vested in the OwnerTrustee, a co-trustee and/or a separate trustee, as the case may be.

 

## **Section 2.8**                                   **Situs of Trust**.

##  

The Trust shall belocated in the State of Delaware.  Allbank accounts maintained by the Owner Trustee on behalf of the Trust shall belocated in the State of Delaware.  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, and payments will be made by theTrust only from the State of Delaware. The only office of the Trust will be at the Corporate Trust Office inthe State of Delaware.

 

## **Section 2.9**                                   **Representations and Warranties of the Depositor**.

##  

The Depositor herebyrepresents and warrants to the Owner Trustee (as such and in its individualcapacity) 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 

 

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### to own its properties and to conduct its business assuch properties are currently owned 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 alljurisdictions in which the ownership or lease of property or the conduct of itsbusiness requires 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 regulationapplicable to 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, theIndenture, any of the other Transaction Documents or the Notes, (ii) seekingto prevent the issuance of the Notes or the consummation of any of thetransactions contemplated by this Agreement, the Indenture or any of the otherTransaction Documents, (iii) seeking any determination or ruling thatmight materially and adversely affect the performance by the Depositor of itsobligations under, or the validity or enforceability of, this Agreement or anyother Transaction Document to which the Depositor is a party or (iv) whichmight adversely affect the federal income tax attributes, or Applicable TaxState franchise or income tax attributes, of the Notes; and

###  

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

 

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## **Section 2.10**                            **Federal Income Tax Matters**.

##  

(a)                                  Itis the intent of the Depositor that, for purposes of federal income, state andlocal income and franchise tax and any other taxes, the Trust will not betreated as an association or publicly traded partnership taxable as acorporation.  Any person having aninterest in the Certificate, including the Seller, by acceptance of itsinterest in the Certificate, and the Owner Trustee agree to such treatment andagree to take no action inconsistent with such treatment, including the makingof an election under Treasury Regulation Section 301.7701-3 on behalf ofthe Trust such that the Trust is treated as an association taxable as acorporation.

 

(b)                                 Itis the intention of the Depositor that, solely for income and franchise taxpurposes, the Trust, shall be treated as (i) a division of theCertificateholder that is ignored as an entity separate from theCertificateholder if, for federal income tax purposes, there is a singleCertificateholder or (ii) a partnership if, for federal income taxpurposes, the Trust is considered to have more than one Certificateholder.  The parties agree that, unless otherwiserequired by appropriate tax authorities, the Trust will file or cause to be filedannual or other necessary returns, reports and other forms consistent with thecharacterization of the Trust, as it relates to the assets in the Trust and theCertificate, as a division of the Certificateholder or partnership, as justdescribed, for such tax purposes and that such parties will take no actioninconsistent with such treatment.

 

(c)                                  Pursuantto the Administration Agreement, the Administrator has agreed to perform thefollowing actions on behalf of the Trust: (i) deliver (or cause to bedelivered) to the Certificateholder, as may be required by the Code andapplicable Treasury Regulations, such information as may be required (includingSchedule K-1 to IRS Form 1065, if the Trust, is treated as apartnership for federal income tax purposes), to enable the Certificateholderto prepare its federal and state income tax returns, (ii) prepare or causeto be prepared, and file or cause to be filed, all tax returns relating to theTrust (including a partnership information return, IRS Form 1065, if theTrust, is treated as a partnership for federal income tax purposes) and theCertificateholders shall direct the Administrator in writing to make suchelections as may from time to time be required or appropriate under anyapplicable state or federal statute or rule or regulation thereunder so asto maintain the characterization of the Trust as a division of a singleCertificateholder or a partnership, as the case may be, for federal income taxpurposes (in each case, in the sole determination of the Certificateholdersunless otherwise required by appropriate taxing authorites) and (iii) prepareor cause to be prepared, and file or cause to be filed, deliver or cause to bedelivered any annual or other necessary returns, reports or forms relating tothe Notes and the Certificate (including information returns on IRS Form 1099).  The Trust shall make all elections pursuantto this Section 2.10 on returns relating to the Certificate, if any,furnished to it in execution form by the Administrator and any other returns asmay be required by law and so furnished to it by and at the direction of theAdministrator, and in doing so shall be entitled to, and shall be fullyprotected if it shall, rely entirely upon, and shall have no liability forinformation provided by, or calculations provided by, the Administrator.  All tax returns in respect of the Trust shallbe signed by the Seller, and if the Seller shall no longer hold theCertificate, the Certificateholder holding the greatest percentage interest inthe Certificate, unless some other party is required by law to sign such return(in which case such other party shall sign). If the Trust is characterized as a partnership for federal income tax 

 

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purposes, theSeller, and if the Seller shall no longer hold any Owner Trust Certificate, theCertificateholder holding of the greatest percentage interest, shall be the “taxmatters partner” of the Trust pursuant to the Code.

 

(d)                                 Theholder of an interest in the Certificate shall not sell or suffer to be transferredsuch interest unless it shall first have either received an opinion of counselto the effect that such sale or transfer would not cause the Trust to betaxable as an association or publicly traded partnership taxable as acorporation or provided the Trust indemnification satisfactory to the OwnerTrustee with respect to any such tax or other expense that might be imposed onor incurred by the Trust as a result of such action.

 

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

# ** **

## **Section 3.1**                                   **Ownership**.

##  

The Seller shall be thesole beneficial owner of the Trust.

 

## **Section 3.2**                                   **The Certificate**.

##  

The Certificate shall beissued to the Seller on the Closing Date as a registered, definitive, physicalcertificate, substantially in the form set forth in Exhibit Aattached hereto.  The Certificate shallnot be Transferred by the Seller to any other Person.

 

The Certificate may be inprinted or typewritten form and shall be executed on behalf of the Trust bymanual or facsimile signature of an authorized officer of the OwnerTrustee.  If the Certificate bears themanual or facsimile signatures of individuals who were, at the time when suchsignatures shall have been affixed, authorized to sign on behalf of the Trust,it shall be validly issued and entitled to the benefits of this Agreement,notwithstanding that such individuals or any of them shall have ceased to be soauthorized prior to the authentication and delivery of the Certificate or didnot hold such offices at the date of authentication and delivery of theCertificate.

 

## **Section 3.3**                                   **Authentication of the Certificate**.

##  

As of the date hereof,the Owner Trustee shall cause the Certificate to be executed on behalf of theTrust, authenticated, issued and delivered upon written order of the Depositorsigned by its manager, its president, any vice president, its secretary or itstreasurer, without further action by the Depositor.  Thereupon, such Certificate shall be dulyauthorized, validly issued and entitled to the benefits of this Agreement.  The Certificate shall not entitle its holderto any benefit under this Agreement, or be valid for any purpose, unless thereshall appear on such Certificate a certificate of authentication substantiallyin the form set forth in Exhibit A executed by the Owner Trustee orits authenticating agent, by manual signature, which authentication shallconstitute conclusive evidence that the Certificate is entitled to the benefitsof this Agreement and has been duly authenticated, duly authorized, validlyissued and delivered hereunder.  TheCertificate shall be dated the date of its authentication.

 

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## **Section 3.4**                                   **Registration of the Certificate**.

##  

The Certificate Registrar(defined below) shall cause to be kept, at its Corporate Trust Office (asdefined in the Sale and Allocation 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 the purpose 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 Owner Trusteeshall promptly appoint a successor or, if it elects not to make such anappointment, assume the duties of Certificate Registrar.

 

## **Section 3.5**                                   **Mutilated, Destroyed, Lost or Stolen Certificate**.

##  

### (a)                                  If(i) a mutilated Certificate is surrendered to the Certificate Registrar,or the Certificate Registrar receives evidence to its satisfaction of thedestruction, loss or theft of the Certificate, and (ii) there is deliveredto the Certificate 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 its authenticating agent shall authenticate and deliver, inexchange for, or in lieu of, such mutilated, destroyed, lost or stolenCertificate, a replacement Certificate of like tenor and denomination.  If, after the delivery of such replacementCertificate, a protected purchaser of the original Certificate in lieu of whichsuch replacement Certificate was issued presents for payment such originalCertificate, the Trust shall be entitled to recover such replacementCertificate (or such payment) from the Person to whom such replacementCertificate was delivered or any Person taking such replacement Certificatefrom such Person to whom such replacement Certificate was delivered or anyassignee of such Person, except a protected purchaser, and shall be entitled torecover upon the security or indemnity provided therefor to the extent of anyloss, damage, cost or expense incurred by the Trust or the Owner Trustee (assuch or in its individual capacity) in connection therewith.

###  

### (b)                                 Uponthe issuance of any replacement Certificate under this Section 3.5,the Trust may require the payment by the Depositor of a sum sufficient to coverany tax or other governmental charge that may be imposed in connection withsuch issuance and any other reasonable expenses (including the fees andexpenses of the Owner Trustee (as such and in its individual capacity)) relatedthereto.

###  

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

 

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### (d)                                 Theprovisions of this Section 3.5 are exclusive and shall preclude (tothe extent lawful) all other rights and remedies with respect to thereplacement or payment of any mutilated, destroyed, lost or stolen Certificate.

###  

## **Section 3.6**                                   **Appointment of Paying Agent**.

##  

The Paying Agent withrespect to the Certificate shall initially be the Owner Trustee, and anyco-paying agent chosen by the Owner Trustee (which may be Wells Fargo Bank,National Association).  The Owner Trusteeshall be permitted to resign as Paying Agent upon thirty (30) days’ writtennotice to the Depositor.  In the eventthat Wells Fargo Delaware Trust Company shall no longer be the Paying Agent,the Owner Trustee, with the consent of the Insurer, shall appoint a successorto act as Paying Agent (which shall be a bank or trust company).  The rights, benefits, protections, privilegesand immunities of the Owner Trustee (as such or in its individual capacity)under this Agreement shall apply to the Owner Trustee also in its role asPaying Agent, for so long as the Owner Trustee shall act as Paying Agent and,to the extent applicable, to any other paying agent appointed hereunder.  Any reference in this Agreement to the PayingAgent shall include any co-paying agent unless the context requires otherwise.

 

## **Section 3.7****                                   RegardingIndenture Trustee.**

##  

The parties to this TrustAgreement and each holder of a Certificate by its acceptance thereof expresslyacknowledge and consent to Wells Fargo Bank, National Association, an affiliateof the Owner Trustee, acting as Indenture Trustee pursuant to theIndenture.  The Owner Trustee maydischarge its functions hereunder and under the other Transaction Documentsfully, without hindrance or regard to conflict of interest principles, duty ofloyalty principles or other breach of fiduciary duties to the extent that anysuch conflict or breach arises from the performance by it of its express dutiesset forth in this Trust Agreement, all of which defenses, claims or assertionsare hereby expressly waived by the other parties hereto and each holder of aCertificate.

 

# **Article IVActions by Owner Trustee**

# ** **

## **Section 4.1**                                   **Prior Notice with Respect to Certain Matters**.

##  

With respect to thefollowing matters, the Trust shall not take action unless (a) at leastthirty (30) days before the taking of such action, the Owner Trustee shall havenotified the Insurer and the Rating Agencies in writing of the proposed actionand (b) the Insurer, if an Insurer Default shall not have occurred and becontinuing, shall have previously consented in writing thereto and theDepositor shall not have (i) notified the Owner Trustee in writing priorto the 30th day after such notice is given that it has withheld consent or (ii) providedalternative written direction prior to the 30th day after such notice is given:

 

(A)                              theinitiation of any claim or lawsuit by the Trust (except claims or lawsuitsbrought by the Servicer in connection with the collection of the Contracts) andthe settlement of any action, claim or lawsuit brought by or against 

 

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theTrust (except with respect to the aforementioned claims or lawsuits forcollection by the Servicer of the Contracts);

 

(B)                                theelection by the Trust to file an amendment to the Certificate of Trust (unlesssuch amendment is required to be filed under the Statutory Trust Act);

 

(C)                                theamendment of the Indenture by a supplemental indenture in circumstances wherethe consent of any Noteholder is required;

 

(D)                               theappointment pursuant to the Indenture of a successor Note Registrar, PayingAgent for the Notes or Indenture Trustee or pursuant to this Agreement of asuccessor Certificate Registrar, or the consent to the assignment by the NoteRegistrar, Paying Agent for the Notes or Indenture Trustee or CertificateRegistrar of its obligations under the Indenture or this Agreement, asapplicable;

 

(E)                                 theconsent to the calling or waiver of any default of any Transaction Document;

 

(F)                                 theconsent to the assignment by the Indenture Trustee or Servicer of theirrespective obligations under any Transaction Document, unless permitted in theTransaction Documents;

 

(G)                                causethe Trust to incur, assume or guaranty any indebtedness other than as set forthin this Agreement or the Transaction Documents;

 

(H)                               possessTrust assets, or assign the Trust’s right to property, for other than a Trustpurpose;

 

(I)                                    causethe Trust to lend any funds to any entity, unless permitted in this Agreementor the Transaction Documents;

 

(J)                                   exceptas provided in Article IX hereof, dissolve, terminate or liquidatethe Trust in whole or in part;

 

(K)                               mergeor consolidate the Trust with or into any other entity, or convey or transferall or substantially all of the Trust’s assets to any other entity;

 

(L)                                 doany act that conflicts with any other Transaction Document;

 

(M)                            doany act which would make it impossible to carry on the ordinary business of theTrust as described in Section 2.3 hereof;

 

(N)                               confessa judgment against the Trust; or

 

(O)                               changethe Trust’s purpose and powers from those set forth in this Agreement.

 

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In addition, the Trustshall not commingle its assets with those of any other entity.  The Trust shall maintain its financial andaccounting books and records separately from those of any other entity.  Except as expressly set forth herein, theTrust shall not pay any indebtedness, operating expenses or liabilities of anyother entity.  The Trust shall maintainappropriate minutes or other records of all appropriate actions and shallmaintain its offices separate from the offices of the Depositor and theServicer.  The Trust shall maintain anarms length relationship with its Affiliates, conduct its own business in itsown name and hold itself out a separate entity from all other Persons.

 

## **Section 4.2**                                   **Action by Depositor with Respect to CertainMatters**.

##  

The Owner Trustee maynot, except upon the occurrence of an Event of Servicing Termination subsequentto the payment in full of the Notes and in accordance with the writtendirection of the Insurer, if an Insurer Default shall not have occurred and becontinuing, or the Depositor (with the consent of the Insurer, provided that anInsurer Default shall not have occurred and be continuing) (a) remove theServicer pursuant to 5.02 of the Servicing Agreement, (b) appoint asuccessor Servicer pursuant to 5.02 of the Servicing Agreement, (c) removethe Administrator pursuant to Section 9 of the Administration Agreement, (d) appointa successor Administrator pursuant to Section 9 of the AdministrationAgreement or (e) sell the Contracts after the termination of theIndenture, except as expressly provided in the Transaction Documents.

 

## **Section 4.3**                                   **Action by Owner Trustee with Respect to Bankruptcy**.

##  

### (a)                                  TheTrust shall not, without the prior written consent of the Owner Trustee, (i) instituteany proceedings to adjudicate the Trust as bankrupt or insolvent, (ii) consentto the institution of bankruptcy or insolvency proceedings against the Trust, (iii) filea petition seeking or consenting to reorganization or relief under anyapplicable federal or state law relating to bankruptcy with respect to theTrust, (iv) consent to the appointment of a receiver, liquidator, assignee,trustee, sequestrator (or other similar official) of the Trust or a substantialpart of its property, (v) make any assignment for the benefit of the Trust’screditors, (vi) admit in writing its inability to pay its debts generallyas they become due, or (vii) take any action in furtherance of any of theforegoing (any of the above foregoing actions, a “*BankruptcyAction*”).  In consideringwhether to give or withhold written consent to any Bankruptcy Action by theTrust, the Owner Trustee, with the consent of the Depositor (hereby given,which consent the Depositor believes to be in the Trust’s and its bestinterests), shall consider the interest of the Noteholders and the Insurer inaddition to the interests of the Trust and whether the Trust is insolvent.  The Owner Trustee shall have no duty to givesuch written consent to Bankruptcy Action by the Trust if the Owner Trusteeshall not have been furnished (at the expense of the Person that requested thatsuch letter be furnished to the Owner Trustee) a letter from an independentaccounting firm of national reputation stating that in the opinion of such firmthe Trust is then insolvent.

###  

The Owner Trustee (assuch and in its individual capacity) shall not be personally liable to anyPerson on account of the Owner Trustee’s good faith reliance on the provisionsof this Section or in connection with the Owner Trustee’s giving priorwritten consent to Bankruptcy Action by the Trust in accordance herewith, orwithholding such consent, in good faith, and neither the Trust nor theDepositor shall have any claim for breach of fiduciary duty or otherwise 

 

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against the OwnerTrustee (as such and in its individual capacity) for giving or withholding itsconsent to any such Bankruptcy 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.

###  

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

###  

## **Section 4.4**                                   **Restrictions on Insurer’s Power**.

##  

Neither the Insurer northe Depositor shall direct the Owner Trustee to take or refrain from taking anyaction if such action or inaction would be contrary to any obligation of theTrust or the Owner Trustee under this Agreement or any of the other TransactionDocuments or would be contrary to Section 2.3, nor shall the OwnerTrustee be obligated to follow any such direction, if given.

 

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

# ** **

## **Section 5.1**                                   **Establishment of Depositor Account**.

##  

Pursuant to Section 3.1(c) ofthe Sale and Allocation Agreement, there shall be maintained in the name of theTrust at an Eligible Institution a segregated trust account designated as theDepositor Account (the “*Depositor Account*”).  The Depositor Account shall be held in trustfor the benefit of the holder of the Certificate.  All monies deposited from time to time in theDepositor Account pursuant to the Sale and Allocation Agreement shall beapplied as provided in this Agreement.

 

## **Section 5.2**                                   **Application of 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 holder of the Certificate.

###  

In addition, the PayingAgent with respect to the Certificate shall, after payment of all liabilitiesof the Trust, including any amounts owing to the Owner Trustee and the Insurerunder the Transaction Documents, promptly remit to the holder of theCertificate any amounts received from the Indenture Trustee for the benefit ofthe holder of the Certificate in respect of excess 

 

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amounts from theReserve 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 holder of the Certificate, such tax shall reducethe amount otherwise distributable to the holder of the Certificate inaccordance with this Section 5.2. The Owner Trustee and each Paying Agent with respect to the Certificateis hereby authorized and directed to retain (as directed in writing by theAdministrator) from amounts otherwise distributable to the holder of theCertificate sufficient funds for the payment of any such withholding tax thatis 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 outcome of suchproceedings).  The amount of anywithholding tax imposed with respect to the holder of the Certificate shall betreated as cash distributed to the holder of the Certificate at the time it iswithheld by the Trust and remitted to the appropriate taxing authority.  If there is a possibility that withholdingtax is payable with respect to a distribution, the Owner Trustee or the PayingAgent with respect to the Certificate may, in its sole discretion, withholdsuch amounts in accordance with this Section 5.2.  If the holder of the Certificate wishes toapply for a refund of any such withholding tax, the Owner Trustee shallreasonably cooperate with the holder of the Certificate in making such claim solong as the holder of the Certificate agrees to reimburse the Owner Trustee, assuch and in its individual capacity, for any expenses incurred.

###  

## **Section 5.3**                                   **Method of Payment**.

##  

Subject to Section 9.1(c),distributions required to be made to the holder of the Certificate on anyPayment Date shall be made to the holder of the Certificate by wire transfer,in immediately available funds, to the account (reasonably identified to thePaying Agent in writing) of the holder of the Certificate at a bank or otherentity having appropriate facilities therefor. Notwithstanding the foregoing, the final distribution in respect of theCertificate (whether on the Final Note Payment Date or otherwise) will bepayable only upon presentation and surrender of the Certificate at the officeof the Paying Agent with respect to the Certificate.

 

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

##  

Subject to Sections5.1 and 5.2, monies received by the Owner Trustee hereunder need notbe segregated in any manner except to the extent required by law, the Indentureor the Sale and Allocation Agreement and may be deposited under such generalconditions as may be prescribed by law, and the Owner Trustee shall not bepersonally liable for any interest thereon.

 

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

# ** **

## **Section 6.1**                                   **General Authority**.

##  

The Owner Trustee shallhave power and authority and is hereby authorized and empowered in the name andon behalf of the Trust to execute and deliver the Transaction Documents towhich the Trust is to be a party and each certificate or other documentattached as 

 

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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-1 Notesand Class A-2 Notes in the aggregate principal amounts of $69,000,000.00and $106,493,000.00, respectively, and Class B Notes in the aggregateprincipal amount of $5,427,618.68.  In additionto the foregoing, the Owner Trustee shall have power and authority and ishereby authorized and empowered in the name and on behalf of the Trust to takeall actions required of or permitted to be taken by the Trust pursuant to theTransaction Documents.  The Owner Trusteeshall have power and authority and is hereby authorized and empowered in thename and on behalf of the Trust from time to time to take such action on behalfof the Trust as is permitted by the Transaction Documents and which the Serviceror the Administrator recommends with respect to the Transaction Documents.

 

## **Section 6.2**                                   **General Duties**.

##  

It shall be the duty ofthe Owner Trustee to perform (or cause to be performed) all of the dutiesexpressly required to be performed by the Owner Trustee under this Agreementand the other Transaction Documents to which the Trust is a party.  Notwithstanding the foregoing, the OwnerTrustee shall be deemed to have discharged its duties and responsibilities hereunderand under the Transaction Documents to the extent the Administrator or anyother Person is required in the Administration Agreement or any otherTransaction Document to perform any act or to discharge such duty of the OwnerTrustee or the Trust hereunder or under any other Transaction Document, and theOwner Trustee shall not be held personally liable for the default or failure ofthe Administrator or any other Person to carry out its obligations under theAdministration Agreement or any other Transaction Document.

 

## **Section 6.3**                                   **Action Upon 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 OwnerTrustee shall not be required to take any action hereunder or under anyTransaction Document if the Owner Trustee shall have reasonably determined, orshall have been advised by counsel, that such action is likely to result inpersonal liability on the part of the Owner Trustee or is contrary to the termshereof or 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 

 

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### 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 (orwithin such shorter period of time as reasonably may be specified in suchnotice or may be necessary under the circumstances) it may, but shall be underno duty to, take or refrain from taking such action as it shall deem to be inthe best interests of the Depositor and shall have no personal liability to anyPerson for 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 is ambiguousas to its application, or is, or appears to be, in conflict with any otherapplicable provision, or in the event that this Agreement permits anydetermination by the Owner Trustee or is silent or is incomplete as to thecourse of action that the Owner Trustee is required or permitted to take withrespect to a particular set of facts, the Owner Trustee may give notice (insuch form as shall be appropriate under the circumstances) to the Insurer (solong as no Insurer Default has occurred and is continuing) and the Depositorrequesting instruction and, to the extent that the Owner Trustee acts orrefrains from acting in good faith in accordance with any such instructionreceived, the Owner Trustee shall not be personally liable, on account of suchaction or inaction, to any Person.  Ifthe Owner Trustee shall not have received appropriate instruction within ten (10) daysof such notice (or within such shorter period of time as reasonably may bespecified in such notice or may be necessary under the circumstances) it may,but shall be under no duty to, take or refrain from taking such action as itshall deem to be in the best interests of the Depositor and shall have nopersonal liability to any Person for such action or inaction.

###  

## **Section 6.4**                                   **No Duties Except as Specified in this Agreement orin Instructions**.

##  

The Owner Trustee shallnot have any duty or obligation to manage, make any payment with respect to,register, record, sell, dispose of or otherwise deal with the Owner TrustEstate, or to otherwise take or refrain from taking any action under, or inconnection with, this Agreement or any document contemplated hereby, except theduties expressly required to be performed by the Owner Trustee by the terms ofthis Agreement or in any document or written instruction received by the OwnerTrustee pursuant to Section 6.3, and no implied duties orobligations shall be read into this Agreement or any other Transaction Documentagainst the Owner Trustee.  The OwnerTrustee shall have no responsibility for filing any financing or continuationstatement in any public office at any time or otherwise to perfect or maintainthe perfection of any security interest or lien or to prepare or file anySecurities and Exchange Commission filing for the Trust or to record thisAgreement or any other Transaction Document. The Owner Trustee, in its individual capacity, shall, however, at itsown cost and expense, promptly take all action as may be necessary to dischargeany lien (other than the lien of the Indenture) on any part of the Owner TrustEstate that results from actions by, or claims against, the Owner Trustee, inits individual 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 Action Except Under Specified Documents orInstructions**.

##  

The Owner Trustee shallnot manage, control, use, sell, dispose of or otherwise deal with any part ofthe Owner Trust Estate except (a) in accordance with the powers granted toand the 

 

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authorityconferred upon the Owner Trustee pursuant to this Agreement, (b) inaccordance with the other Transaction Documents to which the Trust or the OwnerTrust is a party and (c) in accordance with any document or instructiondelivered to the Owner Trustee pursuant to Section 6.3.

 

## **Section 6.6**                                   **Restrictions**.

##  

The Owner Trustee shallnot take any action (a) that is inconsistent with the purposes of theTrust set forth in Section 2.3 or (b) that, to the actualknowledge of the Owner Trustee, would (i) adversely affect the treatmentof the Class A Notes as indebtedness for federal income or income orfranchise tax purposes of any Applicable Tax State, (ii) be deemed tocause a taxable exchange of the Class A Notes for federal income or incomeor 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 notdirect the Owner Trustee to take action that would violate the provisions ofthis Section 6.6.

 

# **Article VIIRegarding The Owner Trustee**

# ** **

## **Section 7.1**                                   **Acceptance of Trusts and Duties**.

##  

The Owner Trustee acceptsthe trusts hereby created and agrees to perform the duties expressly requiredto be performed by the Owner Trustee hereunder. The Owner Trustee also agrees to disburse all monies actually receivedby it constituting part of the Owner Trust Estate upon the terms of this Agreementand the other Transaction Documents to which the Trust is a party.  The Owner Trustee shall not be personallyanswerable or accountable hereunder or under any other Transaction Documentunder any circumstances, except for liability to the Trust and the Depositor (a) forits own willful misconduct, bad faith or gross negligence or (b) in thecase of the breach 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 thisAgreement or any other Transaction Document shall require the Owner Trustee toexpend or risk its own funds or otherwise incur 

 

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#### personal financial liability in the performance of any of its duties orin the exercise of any of its rights or powers hereunder or under any otherTransaction Document if the Owner Trustee shall have reasonable grounds tobelieve that repayment of such funds or indemnity satisfactory to it in itsindividual capacity against such risk or liability is not reasonably assured orprovided 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;

####  

#### (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 beunder no obligation to exercise any of the rights or powers vested in it bythis Agreement or any other Transaction Document or to institute, conduct ordefend any litigation under this Agreement or otherwise or in relation to thisAgreement or any other Transaction Document at the request, order or directionof the Depositor or otherwise, unless the Owner Trustee (as such and in itsindividual capacity) has been offered security or indemnity satisfactory to itagainst the costs, expenses and liabilities that may be incurred by the OwnerTrustee therein or thereby.  The right ofthe Owner Trustee to perform any discretionary act enumerated in this Agreementor any other Transaction Document shall not be construed as a duty, and theOwner Trustee shall not be answerable or liable in its individual capacityexcept to the Trust or the Depositor for its own willful misconduct, bad faithor gross negligence in the performance of any such act;

####  

#### (viii)                        under no circumstances shallthe Owner Trustee be personally liable for any representation, warranty,covenant, agreement or indebtedness of the Trust; and

 

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#### (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**                                   **Furnishing of Documents**.

##  

The Owner Trustee shallfurnish to the Depositor (with a copy to the Insurer) promptly upon receipt ofa written request therefor, duplicates or copies of all reports, notices,requests, demands, certificates, financial statements and any other instrumentsfurnished to the Owner Trustee under the Transaction Documents.

 

## **Section 7.3**                                   **Representations and Warranties**.

##  

The Owner Trustee, in itsindividual capacity, hereby represents and warrants to the Depositor that:

 

### (a)                                  itis a limited purpose trust company duly organized and validly existing in goodstanding under the laws of the State of Delaware and has all requisitecorporate power and authority to execute, deliver and perform its obligationsunder this Agreement;

###  

### (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 its behalf;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 and believedby it to be signed by an appropriate Person. The Owner Trustee may conclusively rely (and shall be fully protected inrelying) upon an Opinion of Counsel.  TheOwner Trustee may accept a certified copy of a resolution of the board ofdirectors or other governing body of any Person as conclusive evidence thatsuch resolution has been duly adopted by such body and that the same is in fullforce and effect.  As to any fact ormatter the method of the determination of which is not specifically prescribedherein, the Owner Trustee may for all purposes hereof rely on a certificate,signed by the president or any vice president or by the treasurer or otherauthorized officer of an appropriate Person, as to such fact or matter and suchcertificate shall constitute full protection to the Owner Trustee (as such andin its individual capacity) for any action taken or omitted to be taken by itin good faith in reliance thereon.

 

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### (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.

###  

## **Section 7.5**                                   **Not Acting in Individual Capacity**.

##  

Except as provided inthis Article VII, in accepting the trusts hereby created, WellsFargo Delaware Trust Company, acts solely as Owner Trustee hereunder and not inits individual capacity, and all Persons having any claim against the OwnerTrustee by reason of the transactions contemplated by this Agreement or anyother Transaction Document shall look only to the Owner Trust Estate forpayment or satisfaction thereof.

 

## **Section 7.6**                                   **Owner Trustee Not Liable for Contracts**.

##  

The recitals containedherein and in the Certificate (other than the signature and countersignature ofthe Owner Trustee on the Certificate) shall be taken as the statements of theDepositor, and the Owner Trustee assumes no personal responsibility for thecorrectness thereof.  The Owner Trustee(as such or in its individual capacity) makes no representations as to thevalidity or sufficiency of this Agreement, any other Transaction Document or theCertificate (other than the signature and countersignature of the Owner Trusteeon the Certificate) 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 holder of the Certificate under this Agreement or theNoteholders under the Indenture, including, without limitation, the existence,condition and ownership of any Financed Vehicle, the existence andenforceability of any insurance thereon, the existence and contents of anyContract on any computer or other record thereof, the validity of theassignment of any Contract to the Trust or any intervening assignment, thecompleteness of any Contract, the performance or enforcement of any Contract,the compliance by the Depositor or the Servicer with any warranty orrepresentation made under any Transaction Document or in any related document,or the accuracy of any such warranty or representation or any action of theIndenture Trustee, the Administrator or the Servicer or any subservicer or anyother Person taken in the name of the Owner Trustee.

 

## **Section 7.7**                                   **Owner Trustee May Own Notes**.

##  

The Owner Trustee, in itsindividual or any other capacity, may become the owner or pledgee of Notes andmay deal with the Depositor, the Servicer, the Administrator and the 

 

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Indenture Trusteein banking transactions with the same rights as it would have if it were notOwner Trustee.

 

# **Article VIIICompensation of Owner Trustee**

# ** **

## **Section 8.1**                                   **Owner Trustee’s Fees and Expenses**.

##  

The Owner Trustee in itsindividual capacity shall receive as compensation for its services hereunderthe Owner Trustee Fee, in accordance with the priorities set forth in Section 3.5(d) ofthe Sale and Allocation Agreement, and the Owner Trustee shall be reimbursed inits individual capacity by the Issuer in accordance with the priorities setforth in Section 3.5(d) of the Sale and Allocation Agreement and inaccordance 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.

 

## **Section 8.2**                                   **Indemnification**.

##  

### (a)                                  Tothe extent not paid by the Trust in accordance with Section 3.5(d) ofthe Sale and Allocation Agreement, the Depositor shall be liable for, and shallindemnify, from funds available to it pursuant to Section 3.5(d)(xi) ofthe Sale and Allocation Agreement, the Owner Trustee in its individual capacityand its successors, assigns, directors, officers, employees, agents andservants (collectively, the “*Indemnified Parties*”)from and against, any and all liabilities, obligations, losses, damages, taxes,claims, actions and suits, and any and all reasonable costs, expenses and disbursements(including reasonable legal fees and expenses) of any kind and naturewhatsoever (collectively, “*Expenses*”)which may at any time be imposed on, incurred by, or asserted against the OwnerTrustee in its individual capacity, or any other Indemnified Party in any wayrelating to or arising out of this Agreement, the other Transaction Documents,the Owner Trust Estate, the administration of the Owner Trust Estate or theaction or inaction of the Owner Trustee hereunder; provided, however,that the Depositor shall not be liable for or required to indemnify anIndemnified Party from and against Expenses arising or resulting from any ofthe matters described in clauses (a) and (b) of thethird sentence of Section 7.1. Neither of the Owner Trustee nor the Depositor will in any event beentitled to make any claim upon the Trust Property for the payment orreimbursement of any Expenses except in accordance with the TransactionDocuments.  The indemnities contained inthis Section 8.2 and the other benefits, protections and immunitiesof the Owner Trustee (as such and in its individual capacity) under thisAgreement shall survive the resignation or removal of the Owner Trustee and thetermination 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, the Owner Trustee, by entering into oraccepting this Agreement, acknowledges and agrees that it has no right, titleor interest in or to 

 

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### the Other Assets of the Depositor.  To the extent that, notwithstanding theagreements and provisions contained in the preceding sentence, the OwnerTrustee either (i) asserts an interest or claim to, or benefit from, OtherAssets, or (ii) is deemed to have any such interest, claim to, or benefitin or from Other Assets, whether by operation of law, legal process, pursuantto applicable provisions of insolvency laws or otherwise (including by virtueof Section 1111(b) of the Bankruptcy Code or any successor provisionhaving similar effect under the Bankruptcy Code), then the Owner Trusteefurther acknowledges and agrees that any such interest, claim or benefit in orfrom Other Assets is and will be expressly subordinated to the indefeasiblepayment in full, which, under the terms of the relevant documents relating tothe securitization or conveyance of such Other Assets, are entitled to be paidfrom, entitled to the benefits of, or otherwise secured by such Other Assets(whether or not any such entitlement or security interest is legally perfectedor otherwise entitled to a priority of distributions or application underapplicable law, including insolvency laws, and whether or not asserted againstthe Depositor), including the payment of post-petition interest on such otherobligations and liabilities.  This subordinationagreement will be deemed a subordination agreement within the meaning of Section 510(a) ofthe Bankruptcy Code.  The Owner Trusteefurther acknowledges and agrees that no adequate remedy at law exists for abreach of this Section 8.2(b) and the terms of this Section 8.2(b)may be enforced by an action for specific performance.  The provisions of this Section 8.2(b) willbe for the third party benefit of those entitled to rely thereon and willsurvive the termination of this Agreement.

###  

## **Section 8.3**                                   **Payments to the Owner Trustee**.

##  

Any amounts paid to theOwner Trustee in its individual capacity pursuant to this Article VIIIshall be deemed not to be a part of the Owner Trust Estate immediately aftersuch payment.

 

# **Article IXTermination**

# ** **

## **Section 9.1**                                   **Termination of Trust Agreement**.

##  

### (a)                                  TheTrust shall dissolve at the earlier of (i) the payment to the Noteholders,the Depositor and the Insurer of all amounts required to be paid to thempursuant to the terms of the Indenture, the Sale and Allocation Agreement, theInsurance Agreement and Article V herein or (ii) the PaymentDate next succeeding the month which is one year after the maturity or otherliquidation of the last Contract and the disposition of any amounts receivedupon liquidation of any property remaining in the Trust; provided, however,in each case, that the Policy shall have been terminated in accordance with itsterms and returned to the Insurer for cancellation.  The bankruptcy, liquidation, dissolution,death or incapacity of the Depositor shall not operate to terminate or dissolvethis Agreement or the Trust, entitle the Depositor’s legal representatives orheirs to claim an accounting or to take any action or proceeding in any courtfor a partition or winding up of all or any part of the Trust or Owner TrustEstate or otherwise affect the rights, obligations and liabilities of theparties hereto.

###  

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

 

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### (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) BusinessDays of receipt by the Owner Trustee of written notice of such dissolution fromthe Servicer, stating (i) the Payment Date upon or with respect to whichfinal payment of the Certificate shall be made upon presentation and surrenderof the Certificate at the office of the Paying Agent therein specified, (ii) theamount of any such final payment and (iii) that the Record Date otherwiseapplicable to such Payment Date is not applicable, payments being made onlyupon presentation and surrender of the Certificate at the office of the PayingAgent therein specified.  The OwnerTrustee shall give such notice to the Certificate Registrar (if other than theOwner Trustee) and the Paying Agent with respect to the Certificate at the timesuch notice is given to the Depositor. Upon presentation and surrender of the Certificate, the Paying Agentwith respect to the Certificate shall cause to be distributed to the Depositoramounts distributable on such Payment Date pursuant to Section 5.2.  In the event that the Depositor shall notsurrender the Certificate for cancellation within six (6) months after thedate specified in the above mentioned written notice, the Owner Trustee shallgive a second written notice to the Depositor to surrender the Certificate forcancellation and receive the final distribution with respect thereto.  If within one year after the second noticethe Certificate shall not have been surrendered for cancellation, the OwnerTrustee may take appropriate steps, or may appoint an agent to take appropriatesteps, to contact the Depositor concerning surrender of the Certificate and thecost thereof shall be paid out of the funds and other assets that shall remainsubject to this Agreement.  Subject toapplicable escheat laws, any funds remaining in the Trust after exhaustion ofsuch remedies shall be distributed by the Paying Agent with respect to theCertificate to the holder of the Certificate.

###  

### (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 TrustAct, and thereupon, this Agreement shall terminate.

###  

## **Section 9.2**                                   **Notification Regarding Bankruptcy of the Depositor**.

##  

Promptly after theoccurrence of any Insolvency Event with respect to the Depositor, (a) theDepositor shall give the Owner Trustee, the Indenture Trustee and the Insurerwritten notice of such Insolvency Event, (b) the Owner Trustee shall, uponreceipt of such written notice from the Depositor, give prompt written noticeto the Indenture Trustee of the occurrence of such event and (c) theIndenture Trustee shall, upon receipt of such written notice from the Depositoror the Owner Trustee, give prompt written notice to the Noteholders of theoccurrence of such event.

 

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

# ** **

## **Section 10.1**                            **Eligibility Requirements for Owner Trustee**.

##  

The Owner Trustee shallat all times (a) be a Person satisfying the provisions of Section 3807(a) ofthe Statutory Trust Act, (b) be authorized to exercise corporate trustpowers, (c) have or have a parent that has a combined capital, surplus andundivided profits of at least $50,000,000 and be subject to supervision orexamination by federal or state authorities and (d) have (or have a parentthat has) a long-term debt rating of investment grade by each of the RatingAgencies or otherwise be acceptable to each of the Rating Agencies and theInsurer (provided that no Insurer Default shall have occurred and becontinuing).  If such Person shall publishreports of condition at least annually, pursuant to law or to the requirementsof the aforesaid supervising or examining authority, then for the purpose ofthis Section 10.1 the combined capital and surplus of such Personshall be deemed to be its combined capital and surplus as set forth in its mostrecent 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 OwnerTrustee shall resign immediately in the manner and with the effect specified inSection 10.2.

 

## **Section 10.2**                            **Resignation or Removal of Owner Trustee**.

##  

The Owner Trustee may atany time resign and be discharged from the trusts hereby created by givingwritten notice thereof to the Administrator and the Insurer.  Upon receiving such notice of resignation,the Administrator shall promptly appoint a successor Owner Trustee, with theconsent of the Insurer, by written instrument, in duplicate, one copy of whichinstrument shall be delivered to the resigning Owner Trustee and one copy tothe successor Owner Trustee.  If nosuccessor Owner Trustee shall have been so appointed and have acceptedappointment within thirty (30) days after the giving of such notice ofresignation, the resigning Owner Trustee may petition any court of competentjurisdiction at the expense of the Administrator for the appointment of asuccessor Owner Trustee.

 

If at any time the OwnerTrustee shall cease to be eligible in accordance with the provisions of Section 10.1and shall fail to resign after written request therefor by the Administrator,or if at any time the Owner Trustee shall be legally unable to act, or shall beadjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of itsproperty shall be appointed, or any public officer shall take charge or controlof the Owner Trustee or of its property or affairs for the purpose ofrehabilitation, conservation or liquidation, then the Administrator may removethe Owner Trustee.  If the Administratorshall remove 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 orremoval of the Owner Trustee and appointment of a successor Owner Trusteepursuant to this Section 10.2 shall not become effective untileither (a) acceptance of appointment by the successor Owner Trusteepursuant to Section 10.3 and payment of all 

 

25

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amounts owed tothe outgoing Owner Trustee in its individual capacity or (b) the Trust hasbeen dissolved pursuant to Section 9.1 hereof and all amountsreceived, if any, in connection with the liquidation of the Trust shall havebeen distributed to the Noteholders and the Depositor and all amounts owing tothe Insurer have been paid.  The Administratorshall provide notice of such resignation or removal of the Owner Trustee to theIndenture Trustee, the Depositor, the Noteholders and each of the RatingAgencies.

 

## **Section 10.3**                            **Successor Owner Trustee**.

##  

Any successor OwnerTrustee appointed pursuant to Section 10.2 shall execute,acknowledge and deliver to the Administrator and to its predecessor OwnerTrustee an instrument accepting such appointment under this Agreement, andthereupon the resignation or removal of the predecessor Owner Trustee shallbecome effective and such successor Owner Trustee, without any further act,deed or conveyance, shall become fully vested with all the rights, powers,duties and obligations of its predecessor under this Agreement, with likeeffect as if originally named as Owner Trustee. The predecessor Owner Trustee shall, upon payment of amounts owing to itin its individual capacity, deliver to the successor Owner Trustee alldocuments, 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 OwnerTrustee shall accept appointment as provided in this Section 10.3unless, at the time of such acceptance, such successor Owner Trustee shall beeligible pursuant to Section 10.1.

 

Any successor OwnerTrustee appointed pursuant to this Section 10.3 shall file anamendment to the Certificate of Trust with the Secretary of State reflectingthe name and principal place of business of such successor in the State ofDelaware.

 

Upon acceptance ofappointment by a successor Owner Trustee pursuant to this Section 10.3,the Administrator shall mail notice of such appointment to the Depositor, theIndenture Trustee, the Noteholders and the Rating Agencies.  If the Administrator shall fail to mail suchnotice within ten (10) days after acceptance of appointment by the successorOwner Trustee, the successor Owner Trustee shall cause such notice to be mailedat the expense of the Administrator.

 

## **Section 10.4**                            **Merger or Consolidation 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 RatingAgencies and Insurer with 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 

 

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### a Certificate shall have been authenticated but notdelivered, any such successor to the Owner Trustee may adopt the certificate ofauthentication of any predecessor trustee and deliver the Certificate soauthenticated, and in case at that time the Certificate shall not have beenauthenticated, such successor to the Owner Trustee may authenticate theCertificate either in the name of any predecessor trustee or in the name of thesuccessor to the Owner Trustee.  In allsuch cases such certificate shall have the full force which the Certificate orthis Agreement provide that the certificate of the Owner Trustee shall have.

###  

## **Section 10.5**                            **Appointment of 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 andthe Owner Trustee acting jointly may at any time accept the resignation of orremove any separate trustee or co-trustee.

 

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### (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, specifically including every provision of thisAgreement relating to the conduct of, affecting the liability of, or affordingprotection to, the Owner Trustee.  Eachsuch instrument shall be filed with the Owner Trustee and a copy thereof givento 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.

###  

# **Article XIMiscellaneous**

# ** **

## **Section 11.1**                            **Supplements and 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, andwith the 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) anOpinion of Counsel shall be furnished to the Owner Trustee and the IndentureTrustee to the effect that such amendment (A) will not materiallyadversely affect the federal or any Applicable Tax State income or franchisetaxation of any outstanding Note or any Noteholder and (B) will not causethe Trust to be an association or publicly traded partnership 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 notless than 51% of the Class A Note Balance, for the purpose of adding anyprovisions to, or changing in any manner or eliminating any of the 

 

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### provisions of, this Agreement or modifying in anymanner the rights of the Noteholders; provided, however, that,subject to the express rights of the Insurer under the Transaction Documents,no such amendment shall (i) increase or reduce in any manner the amountof, or accelerate or delay the timing of, or change the allocation or priorityof, collections of payments on the Contracts or distributions that are requiredto be made on any Note, or change the Class A Note Rate, or (ii) reducethe aforesaid percentage of the Class A Note Balance required to consentto any such amendment, without the consent of all the Noteholders affectedthereby or (iii) adversely affect the ratings of the Class A Notes bythe Rating Agencies (without giving effect to the Policy) without the consentof the Holders (as defined in the Indenture) of Class A Notes evidencingnot less than 66 2/3% of the aggregate principal amount of the then outstandingClass A Notes; and, providedfurther, that (A) such actionshall not, as evidenced by an Opinion of Counsel satisfactory to the OwnerTrustee, the Insurer and the Indenture Trustee, adversely affect in anymaterial respect the interests of any Noteholder and (B) an Opinion ofCounsel shall be furnished to the Indenture Trustee, the Insurer and the OwnerTrustee to the effect that such amendment (1) will not materiallyadversely affect the federal or any Applicable Tax State income or franchisetaxation of any outstanding Note or any Noteholder and (2) will not causethe Trust to be an association or publicly traded partnership taxable as acorporation for federal or any Applicable Tax State income or franchise taxpurposes.

###  

### (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 Indenture Trusteepursuant to this Section 11.1 to approve the particular form of anyproposed amendment or consent, but it shall be sufficient if such consent shallapprove the substance thereof. The manner of obtaining such consents (and anyother 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 herein orelsewhere, no amendment, supplement, waiver or consent of or with respect toany other Transaction Document that affects 

 

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### any right, power, authority, duty, benefit,protection, privilege, immunity or indemnity of the Owner Trustee (as such orin its individual capacity) shall be binding on the Owner Trustee (as such orin its individual capacity) unless the Owner Trustee (as such and in itsindividual capacity) shall have expressly consented thereto in writing.

###  

## **Section 11.2**                            **No Legal Title to Owner Trust Estate in theDepositor**.

##  

The Depositor shall nothave legal title to any part of the Owner Trust Estate.  The Depositor shall be entitled to receivedistributions with respect to its undivided beneficial interest therein only inaccordance with Articles V and IX.  No transfer, by operation of law orotherwise, of any right, title or interest of the Depositor in and to itsbeneficial 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**                            **Limitation on Rights of Others**.

##  

The provisions of thisAgreement are solely for the benefit of the Owner Trustee (as such and in itsindividual capacity), the Insurer, the Depositor, the Administrator, theServicer, the Indemnified Parties and, to the extent expressly provided herein,the Indenture Trustee and the Noteholders, and nothing in this Agreement or theCertificate, whether express or implied, shall be construed to give to anyother Person any legal or equitable right, remedy or claim in the Owner TrustEstate or under or in respect of this Agreement or any covenants, conditions orprovisions contained herein.

 

## **Section 11.4**                            **Notices**.

##  

All demands, requests,directions, instructions, notices and other communications under this Agreementshall be in writing, personally delivered, sent by telecopier, overnightcourier or mailed by certified mail, return receipt requested, and shall bedeemed to have been duly given upon receipt 1. in the case of the OwnerTrustee, at the Corporate Trust Office, with a copy to Wells Fargo DelawareTrust Company, 919 North Market Street, Suite 700, Wilmington, DE 19801,Attention:  Corporate TrustAdministration, 2. in the case of the Depositor, at the following address: 675Bering Drive, Suite 710, Houston, Texas 77057, 3. in the case of theIndenture Trustee, at the following address: Sixth Street and Marquette AvenueMAC N9311-161, Minneapolis, Minnesota 55479, Attention: Corporate TrustServices - Asset-Backed Administration, 4. in the case of Moody’s, at thefollowing address: Moody’s Investors Service, Inc., 99 Church Street, 4thFloor, New York, New York 10007, ServicerReports@moodys.com, Attn: Yan Yan,with an additional copy to Moody’s Investors Service, Inc., 99 ChurchStreet, 4th Floor, New York, New York 10007, Attn: ABS Monitoring Department,5. in the case of S&P, if available electronically, atServicer_reports@sandp.com, and if not available electronically, at thefollowing address: Standard & Poor’s Ratings Services, a division ofThe McGraw-Hill Companies, Inc., 55 Water Street, 43rd Floor, New York,New York 10041, Attention: ABS Surveillance Group, and 6. in the case of theInsurer, at the following address: MBIA Insurance Corporation, 113 King Street,Armonk, New York 10504, Attention: Insured Portfolio Management, StructuredFinance.

 

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## **Section 11.5**                            **Severability**.

##  

If any provision of thisAgreement or the Certificate shall be held for any reason whatsoever invalid,illegal or unenforceable, the validity, legality and enforceability of theremaining provisions of this Agreement and the Certificate shall not in any waybe affected or impaired thereby.

 

## **Section 11.6**                            **Separate Counterparts**.

##  

This Agreement may beexecuted in any number of counterparts, each of which counterparts when soexecuted shall be deemed to be an original, and all of which counterparts shalltogether constitute but one and the same instrument.

 

## **Section 11.7**                            **Successors and Assigns**.

##  

All covenants andagreements in this Agreement shall be binding upon, and inure to the benefit ofthe Depositor, the Insurer and the Owner Trustee (as such and in its individualcapacity) and its successors as herein provided.

 

## **Section 11.8**                            **Covenants of the Depositor**.

##  

The Depositor shall notat any time institute against the Trust, or join in any institution against theTrust of, 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 11.9**                            **No Petition**.

##  

The Owner Trustee (not inits individual capacity but solely as Owner Trustee), by entering into thisAgreement and the Depositor, the Indenture Trustee and each Noteholder, byaccepting the benefits of this Agreement, hereby covenant and agree and shallbe deemed to covenant and agree that they will not at any time institute againstor knowingly or intentionally cooperate or encourage any other Person ininstituting against, the Depositor or the Trust, in 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.

 

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

##  

The Article and Section headingsherein and the Table of Contents are for convenience only and shall not defineor limit any of the terms or provisions hereof.

 

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## **Section 11.11**                     **Governing Law**.

##  

This Agreement shall beconstrued in accordance with the laws of the State of Delaware and theobligations, rights and remedies of the parties under this Agreement shall bedetermined in accordance with such laws.

 

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

##  

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

 

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

##  

For all purposes, theOwner Trustee shall be entitled to presume (and shall be fully protected inpresuming) that no Insurer Default has occurred or exists unless a ResponsibleOfficer of the Owner Trustee has obtained actual knowledge or received writtennotice to the contrary.

 

[REMAINDER OF PAGEINTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, theparties hereto have caused this Trust Agreement to be duly executed by theirrespective officers, thereunto duly authorized and duly attested, all as of theday and year first above written.

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

 

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Exhibit AForm of Certificate

 

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

** **

FIRST INVESTORS AUTO OWNER TRUST 2005-A

 

CERTIFICATE

 

Evidencing a beneficialinterest in the property of the Trust, as defined below, which propertyincludes a pool of retail installment sales contracts secured by new and usedautomobiles and light-duty trucks sold to the Trust by First Investors AutoFunding Corporation.  The property of theTrust has been pledged to the Indenture Trustee pursuant to the Indenture tosecure the payment of the Notes issued thereunder.

 

(This Certificate doesnot represent an interest in or obligation of First Investors Auto FundingCorporation, Wells Fargo Delaware Trust Company, First Investors FinancialServices, Inc. or any of their respective affiliates, except to the extentdescribed below.)

 

THIS CERTIFIES THAT FirstInvestors Financial Services, Inc. is the registered owner of a beneficialinterest in First Investors Auto Owner Trust 2005-A (the “*Trust*”)formed by First Investors Auto Funding Corporation, a Delaware company (the “*Depositor*”).

 

The Trust was createdpursuant to an initial Trust Agreement, dated as of April 15, 2005 asamended by the Amended and Restated Trust Agreement (as further amended,supplemented or otherwise modified and in effect from time to time, the “*TrustAgreement*”), by andbetween the Depositor and Wells Fargo Delaware Trust Company, as owner trustee(the “Owner Trustee”), a summary of certain of the pertinent provisionsof which is set forth below.  To theextent not otherwise defined herein, the capitalized terms used herein have themeanings assigned to them in the Trust Agreement or the Sale and AllocationAgreement, dated as of May 5, 2005 (as amended, supplemented or otherwisemodified and in effect from time to time, the “*Sale andAllocation Agreement*”), by and among the Trust, the IndentureTrustee, the Depositor and First Investors Servicing Corporation, as servicer(the “*Servicer*”), as applicable.

 

This certificate is theCertificate referred to in the Trust Agreement. This Certificate is issued under and is subject to the terms, provisionsand conditions of the Trust Agreement, to which Trust Agreement the holder ofthis Certificate, by virtue of the acceptance hereof, assents and by which theholder of this Certificate is bound. The property of the Trust includes: (i) theContracts; (ii) all amounts received on or in respect of the Contractsafter the applicable Cutoff Date (except interest received which is accruedprior to the Cutoff Date); (iii) the Collection Account, the ReserveAccount, the Prefunding Account, the Class A Note Payment Account and the Class BNote Payment Account and all amounts, securities, financial assets, investmentsand other property deposited in or credited to any of the foregoing and allproceeds thereof; (iv) the security interests in the Financed Vehicles; (v) allproceeds from claims on or refunds of premiums with respect to physical damage,theft, credit life and credit disability insurance policies and extendedwarranties relating to the Financed Vehicles or the related Obligors; (vi) 

 

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any LiquidationProceeds; (vii) all of the Trust’s rights to the Contract Files; (viii) allof the Trust’s rights under the Servicing Agreement, the Contribution Agreementand the Sale and Allocation Agreement to cause the Servicer, the Seller and theDepositor, respectively, to purchase Contracts affected materially andadversely by breaches of the representations and warranties of the Servicermade in the Servicing Agreement; and (ix) all present and future claims,demands, causes of action and chooses in action in respect of any or all of theforegoing and all payments on or under and all proceeds of every kind andnature whatsoever in respect of any or all of the foregoing, including allproceeds of the conversion thereof, voluntary or involuntary, into cash orother liquid property, all cash proceeds, accounts, accounts receivable, notes,drafts, acceptances, chattel paper, checks, deposit accounts, insuranceproceeds, condemnation awards, rights to payment of any and every kind andother forms of obligations and receivables, instruments and other propertywhich at any time constitute all or part of or are included in the proceeds ofany of the foregoing.  THE RIGHTS OF THETRUST IN THE FOREGOING PROPERTY OF THE TRUST HAVE BEEN PLEDGED TO THE INDENTURETRUSTEE TO SECURE THE PAYMENT OF THE NOTES.

 

Under the Trust Agreement,there will be distributed on the fifteenth day of each month or, if suchfifteenth day is not a Business Day, the next Business Day (each, a “*Payment Date*”), commencing on May 16,2005, to the holder of this Certificate such amount to be distributed to theholder of this Certificate in accordance with the Sale and Allocation Agreementon such Payment Date. Notwithstanding the foregoing, following the occurrenceand during the continuation of an Event of Default under the Indenture whichhas resulted in an acceleration of the Notes, no distributions will be made onthe Certificate until all the Notes have been paid in full.

 

THE HOLDER OF THISCERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO RECEIVE DISTRIBUTIONS INRESPECT OF THIS CERTIFICATE ARE SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERSAS DESCRIBED IN THE SALE AND ALLOCATION AGREEMENT AND THE TRUST AGREEMENT.

 

It is the intent of theDepositor that, for purposes of federal income, state and local income tax andany other income taxes, the Trust will not be treated as an association orpublicly traded partnership taxable as a corporation.  Any person having an interest in theCertificate by acceptance of its interest in the Certificate agrees to such treatmentand agrees to take no action inconsistent with such treatment.

 

The holder of thisCertificate, by its acceptance of this Certificate or any beneficial interesttherein, covenants and agrees and shall be deemed to covenant and agree that itwill not at any time institute against or knowingly or intentionally cooperateor encourage any other Person in instituting against the Trust, or join in anyinstitution against the Trust, any bankruptcy, reorganization, arrangement,insolvency or liquidation proceedings, or other proceedings under any UnitedStates federal or state bankruptcy or similar law in connection with anyobligations relating to the Notes, the Trust Agreement or any of the otherTransaction Documents (as defined in the Trust Agreement).

 

Distributions on thisCertificate will be made as provided in the Trust Agreement by the Paying Agentby wire transfer or check mailed to the holder of this Certificate without the 

 

A-2

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presentation orsurrender of this Certificate or the making of any notation hereon.  Except as otherwise provided in the TrustAgreement and notwithstanding the above, the final distribution on thisCertificate will be made after due notice by the Owner Trustee of the pendencyof such distribution and only upon presentation and surrender of thisCertificate at the office or agency maintained for the purpose by the PayingAgent.

 

Unless the certificate ofauthentication hereon shall have been executed by an authorized officer of theOwner Trustee, or its authenticating agent by manual signature, thisCertificate shall not entitle the holder of this Certificate to any benefitunder the Trust Agreement or the Sale and Allocation Agreement or be valid forany purpose.

 

This Certificate shall beconstrued in accordance with the laws of the State of Delaware, and theobligations, rights and remedies of the parties hereunder shall be determinedin accordance with such laws.

 

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IN WITNESS WHEREOF, theOwner Trustee, on behalf of the Trust and not in its individual capacity, hascaused this Certificate to be duly executed.

 
|   | FIRST INVESTORS  AUTO OWNER TRUST 2005-A |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | Wells Fargo  Delaware Trust Company, not in  its individual capacity but solely as Owner   Trustee |
|   |                                     |
|   | By:                                      |   |   |
|   | Name:                                    |
|   | Title:                                   |
|        |                                          |  |  |  |

 

 

**OWNERTRUSTEE’S CERTIFICATE OF AUTHENTICATION**

 

Thisis the Certificate referred to in the within-mentioned Trust Agreement.

 

Dated:May     , 2005

 

 
| Wells Fargo  Delaware Trust Company  not in its individual capacity but solely  as Owner Trustee |               |   |
|--------------------------------------------------------------------------------------------------|--------------------|--------|
|                                                                                             |               |   |
| By:                                                                                              |               |   | By: |   |   |
|                                                                                             | Authorized Officer |   |   | as Authenticating Agent |   |

 

A-4

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**Exhibit B**

**Certificate of Trust**

** **

**[Copy of Filed Certificate To BeAttached]**

 

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