exv4w2






Exhibit 4.2




 

 








AMENDED AND RESTATED

TRUST AGREEMENT




between



FORD CREDIT AUTO RECEIVABLES TWO LLC,

as Depositor



and



U.S. BANK TRUST NATIONAL ASSOCIATION,

as Owner Trustee



for



FORD CREDIT AUTO OWNER TRUST 2011-B



Dated as of July 1, 2011



 

 






















 
















TABLE OF CONTENTS




	 	 	 	 	 	 	 

	ARTICLE I USAGE AND DEFINITIONS	 	 	1	 
	Section 1.1.
	 	Usage and Definitions	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II ORGANIZATION OF THE TRUST	 	 	1	 
	Section 2.1.
	 	Name	 	 	1	 
	Section 2.2.
	 	Office	 	 	1	 
	Section 2.3.
	 	Purposes and Powers	 	 	1	 
	Section 2.4.
	 	Appointment of the Owner Trustee	 	 	2	 
	Section 2.5.
	 	Contribution and Conveyance of Trust Property	 	 	2	 
	Section 2.6.
	 	Declaration of Trust	 	 	2	 
	Section 2.7.
	 	Liability of the Depositor; Conduct of Activities; Liability to Third Parties 	 	 	3	 
	Section 2.8.
	 	Title to Trust Property	 	 	3	 
	Section 2.9.
	 	Situs of Issuer	 	 	3	 
	Section 2.10.
	 	Representations and Warranties of the Depositor	 	 	3	 
	Section 2.11.
	 	Tax Matters	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE III RESIDUAL INTEREST AND TRANSFER OF INTERESTS	 	 	6	 
	Section 3.1.
	 	The Residual Interest	 	 	6	 
	Section 3.2.
	 	Registration of Residual Interests; Transfer of the Residual Interest	 	 	7	 
	Section 3.3.
	 	Capital Accounts	 	 	8	 
	Section 3.4.
	 	Maintenance of Office or Agency	 	 	8	 
	Section 3.5.
	 	Distributions to the Holder of the Residual Interest	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE IV APPLICATION OF TRUST FUNDS; CERTAIN DUTIES	 	 	9	 
	Section 4.1.
	 	Application of Trust Funds	 	 	9	 
	Section 4.2.
	 	Method of Payment	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE V AUTHORITY AND DUTIES OF THE OWNER TRUSTEE	 	 	10	 
	Section 5.1.
	 	General Authority	 	 	10	 
	Section 5.2.
	 	General Duties	 	 	10	 
	Section 5.3.
	 	Action upon Prior Notice with Respect to Certain Matters	 	 	10	 
	Section 5.4.
	 	Action upon Direction by the Holder of the Residual Interest with Respect to Certain Matters	 	 	11	 
	Section 5.5.
	 	Action with Respect to Bankruptcy	 	 	11	 
	Section 5.6.
	 	Action upon Instruction	 	 	11	 
	Section 5.7.
	 	No Duties Except as Specified in this Agreement or in Instructions	 	 	12	 
	Section 5.8.
	 	No Action Except Under Specified Documents or Instructions	 	 	12	 
	Section 5.9.
	 	Prohibition on Certain Actions	 	 	12	 
	Section 5.10.
	 	Audits of the Owner Trustee	 	 	12	 
	Section 5.11.
	 	Furnishing of Documents	 	 	13	 
	Section 5.12.
	 	Sarbanes-Oxley Act	 	 	13	 
	Section 5.13.
	 	Maintenance of Licenses	 	 	13	 
	Section 5.14.
	 	Covenants for Reporting of Repurchase Demands due to Breaches of	 	 	 	 
	 
	 	Representations and Warranties	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE VI REGARDING THE OWNER TRUSTEE	 	 	14	 






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	Section 6.1.
	 	Acceptance of Trusts and Duties	 	 	14	 
	Section 6.2.
	 	Representations and Warranties of the Owner Trustee	 	 	15	 
	Section 6.3.
	 	Reliance; Advice of Counsel	 	 	16	 
	Section 6.4.
	 	Not Acting in Individual Capacity	 	 	16	 
	Section 6.5.
	 	U.S. Bank Trust National Association May Own Notes	 	 	17	 
	Section 6.6.
	 	Duty to Update Disclosure	 	 	17	 
	 
	 	 	 	 	 	 
	ARTICLE VII COMPENSATION AND INDEMNIFICATION OF THE OWNER TRUSTEE; ORGANIZATIONAL EXPENSES	 	 	17	 
	Section 7.1.
	 	Owner Trustee’s Fees and Expenses	 	 	17	 
	Section 7.2.
	 	Indemnification of the Owner Trustee	 	 	17	 
	Section 7.3.
	 	Organizational Expenses of the Issuer	 	 	19	 
	Section 7.4.
	 	Certain Expenses of the Indenture Trustee and the Owner Trustee	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE VIII TERMINATION	 	 	19	 
	Section 8.1.
	 	Termination of Trust Agreement	 	 	19	 
	 
	 	 	 	 	 	 
	ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES	 	 	20	 
	Section 9.1.
	 	Eligibility Requirements for the Owner Trustee	 	 	20	 
	Section 9.2.
	 	Resignation or Removal of the Owner Trustee	 	 	20	 
	Section 9.3.
	 	Successor Owner Trustee	 	 	21	 
	Section 9.4.
	 	Merger or Consolidation of the Owner Trustee	 	 	21	 
	Section 9.5.
	 	Appointment of Separate Trustee or Co-Trustee	 	 	22	 
	Section 9.6.
	 	Compliance with Delaware Statutory Trust Act	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	 	23	 
	Section 10.1.
	 	Supplements and Amendments	 	 	23	 
	Section 10.2.
	 	No Legal Title to Trust Property in the Holder of the Residual Interest	 	 	25	 
	Section 10.3.
	 	Limitation on Rights of Others	 	 	25	 
	Section 10.4.
	 	Notices	 	 	25	 
	Section 10.5.
	 	GOVERNING LAW	 	 	26	 
	Section 10.6.
	 	WAIVER OF JURY TRIAL	 	 	26	 
	Section 10.7.
	 	Severability	 	 	26	 
	Section 10.8.
	 	Counterparts	 	 	26	 
	Section 10.9.
	 	Headings	 	 	27	 
	Section 10.10.
	 	No Petition	 	 	27	 
	 
	 	 	 	 	 	 
	Exhibit A Form of Certificate of Trust	 	 	A-1	 






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     AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 1, 2011 (this “Agreement”),
between FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited liability company, as Depositor,
and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as trustee under this Agreement, to establish Ford Credit Auto Owner Trust
2011-B.



BACKGROUND




     The parties to this Agreement wish to amend and restate in its entirety the original Trust
Agreement, dated as of January 28, 2011, between the Depositor and the Owner Trustee.



ARTICLE I

USAGE AND DEFINITIONS




     Section 1.1. Usage and Definitions. Capitalized terms used but not otherwise defined
in this Agreement are defined in Appendix A to the Sale and Servicing Agreement, dated as of July
1, 2011, among Ford Credit Auto Owner Trust 2011-B, as Issuer, Ford Credit Auto Receivables Two
LLC, as Depositor, and Ford Motor Credit Company LLC, as Servicer. Appendix A also contains rules
as to usage applicable to this Agreement. Appendix A is incorporated by reference into this
Agreement.



ARTICLE II

ORGANIZATION OF THE TRUST




     Section 2.1. Name. The trust was created and is known as “Ford Credit Auto Owner
Trust 2011-B”, in which name the Owner Trustee may conduct the activities of the Issuer, make and
execute contracts and other instruments on behalf of the Issuer and sue and be sued on behalf of
the Issuer.



     Section 2.2. Office. The office of the Issuer is in care of the Owner Trustee at its
Corporate Trust Office.



     Section 2.3. Purposes and Powers.



     (a) The purpose of the Issuer is, and the Issuer will have the power and authority, to engage
in the following activities:




     (i) to acquire the Receivables and other Trust Property pursuant to the Sale and
Servicing Agreement from the Depositor in exchange for the Notes and the Residual Interest;




     (ii) to Grant the Collateral to the Indenture Trustee pursuant to the Indenture;




     (iii) to enter into and perform its obligations under the Transaction Documents;




     (iv) to enter into and perform its obligations under any interest rate hedge agreement
or agreements with one or more hedge counterparties;



 









 






     (v) to issue the Notes pursuant to the Indenture and to sell the Notes upon the order
of the Depositor;




     (vi) to pay interest on and principal of the Notes;




     (vii) to issue additional securities pursuant to one or more supplemental indentures or
amendments to this Agreement and to transfer all or a portion of such securities to the
Depositor or other holder of a Residual Interest, subject to compliance with the Transaction
Documents, in exchange for all or a portion of the Residual Interest;




     (viii) to engage in those activities, including entering into agreements, that are
necessary, appropriate or convenient to accomplish the foregoing or are incidental to the
foregoing; and




     (ix) subject to compliance with the Transaction Documents, to engage in such other
activities as may be required in connection with conservation of the Trust Property and the
making of payments to the Noteholders and distributions to the holder of the Residual
Interest.



     (b) The Issuer will not engage in any activity other than as required or authorized by this
Agreement or the other Transaction Documents.



     Section 2.4. Appointment of the Owner Trustee. The Depositor appoints the Owner
Trustee as trustee of the Issuer effective as of the Cutoff Date, to have all the rights, powers
and duties set forth in this Agreement.



     Section 2.5. Contribution and Conveyance of Trust Property. As of the date of the
formation of the Issuer, the Depositor contributed to the Owner Trustee the amount of $1. The
Owner Trustee acknowledges receipt in trust from the Depositor, as of such date, of such
contribution, which constitutes the initial Trust Property. On the Closing Date, the Depositor
will sell to the Issuer the Trust Property in exchange for the Notes.



     Section 2.6. Declaration of Trust. The Owner Trustee will hold the Trust Property in
trust upon and subject to the conditions set forth in this Agreement for the use and benefit of the
holder of the Residual Interest, subject to the obligations of the Issuer under the Transaction
Documents. It is the intention of the parties that the Issuer constitute a statutory trust under
the Delaware Statutory Trust Act and that this Agreement constitute the governing instrument of
such statutory trust. Effective as of the Cutoff Date, the Owner Trustee will have the rights,
powers and duties set forth in this Agreement and in the Delaware Statutory Trust Act with respect
to accomplishing the purposes of the Issuer. A Certificate of Trust substantially in the form of Exhibit A and
any necessary certificate of amendment has been filed with the Secretary of State of the State of
Delaware.



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     Section 2.7. Liability of the Depositor; Conduct of Activities; Liability to Third
Parties.



     (a) The Depositor, as initial holder of the entire Residual Interest, will be entitled to the
same limitation of personal liability extended to stockholders or a private corporation for profit
organized under the Delaware General Corporation Law.



     (b) The activities and affairs of the Issuer will be operated in such a manner as to preserve
(i) the limited liability of the Depositor, (ii) the separateness of the Issuer from the activities
of the Depositor and Ford Credit and (iii) until one year and one day after all Notes and any
additional securities issued pursuant to Section 3.1(b) are paid in full, the bankruptcy remote
status of the Issuer.



     (c) Except as otherwise provided in this Agreement, none of the Depositor, the Administrator
or any of their Affiliates or any director, manager, officer or employee of any such Person, will
be liable for the debts, obligations or liabilities of the Issuer.



     Section 2.8. Title to Trust Property. Legal title to the Trust Property will be
vested in the Issuer as a separate legal entity, except where applicable law in any jurisdiction
requires title to any part of the Trust Property to be vested in a trustee or trustees, in which
case title will be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.



     Section 2.9. Situs of Issuer. The Issuer will be administered in the States of
Delaware and Illinois. All bank accounts maintained by the Owner Trustee on behalf of the Issuer
will be located in the State of Delaware. The Issuer will not have any employees in any state
other than the State of Delaware, except that U.S. Bank Trust National Association, in its capacity
as Owner Trustee or any other capacity, may have employees within or outside the State of Delaware.
Payments will be received by the Issuer only in Delaware, and payments will be made by the Issuer
only from Delaware. The principal office of the Issuer will be in care of the Owner Trustee in the
State of Delaware.



     Section 2.10. Representations and Warranties of the Depositor. The Depositor
represents and warrants to the Owner Trustee as of the Closing Date:



     (a) Organization and Qualification. The Depositor is duly organized and is validly
existing as a limited liability company in good standing under the laws of the State of Delaware.
The Depositor is qualified as a foreign limited liability company in good standing and has
obtained all necessary licenses and approvals in all jurisdictions in which the ownership or
lease of its properties or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or approvals would not have a
material adverse effect on the Depositor’s ability to perform its obligations under this Agreement
or the other Transaction Documents to which it is a party.



     (b) Power, Authorization and Enforceability. The Depositor has the power and
authority to execute, deliver and perform the terms of this Agreement. The Depositor has
authorized the execution, delivery and performance of the terms of each of the Transaction
Documents to which it is a party. Each of the Transaction Documents to which the Depositor is



3









 







a party is the legal, valid and binding obligation of the Depositor enforceable against the
Depositor, except as may be limited by insolvency, bankruptcy, reorganization or other laws
relating to the enforcement of creditors’ rights or by general equitable principles.



     (c) No Conflicts and No Violation. The consummation of the transactions contemplated
by the Transaction Documents to which the Depositor is a party and the fulfillment of the terms of
the Transaction Documents to which the Depositor is a party will not: (i) conflict with or result
in a material breach of the terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement, guarantee or similar agreement or instrument under which
the Depositor is a debtor or guarantor, (ii) result in the creation or imposition of any Lien upon
any of the properties or assets of the Depositor pursuant to the terms of any such indenture,
mortgage, deed of trust, loan agreement, guarantee or similar agreement or instrument (other than
this Agreement), (iii) violate the Certificate of Formation or Limited Liability Company Agreement
of the Depositor, or (iv) violate any law or, to the Depositor’s knowledge, any order, rule, or
regulation applicable to the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over the Depositor
or its properties, in each case which conflict, breach, default, Lien, or violation would
reasonably be expected to have a material adverse effect on the Depositor’s ability to perform its
obligations under the Transaction Documents.



     (d) No Proceedings. To the Depositor’s knowledge, there are no proceedings or
investigations pending or overtly threatened in writing, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction over the Depositor
or its properties: (i) asserting the invalidity of any of the Transaction Documents or the Notes,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by any of the Transaction Documents, (iii) seeking any determination or ruling that
would reasonably be expected to have a material adverse effect on the Depositor’s ability to
perform its obligations under, or the validity or enforceability of, any of the Transaction
Documents or the Notes, or (iv) that would reasonably be expected to (A) affect the treatment of
the Notes as indebtedness for U.S. federal income or Applicable Tax State income or franchise tax
purposes, (B) be deemed to cause a taxable exchange of the Notes for U.S. federal income tax
purposes or (C) cause the Issuer to be treated as an association or publicly traded partnership
taxable as a corporation for U.S. federal income tax purposes, in each case, other than such
proceedings that, to the Depositor’s knowledge, would not reasonably be expected to have a material
adverse effect upon the Depositor or materially and adversely affect the performance by the
Depositor of its obligations under, or the validity and enforceability of,
the Transaction Documents or the Notes or materially and adversely affect the tax treatment of
the Issuer or the Notes.



     Section 2.11. Tax Matters.



     (a) It is the intention of the parties and Ford Credit that, for purposes of U.S. federal
income, State and local income and franchise tax and any other income taxes, so long as the Issuer
has no equity owner other than the Depositor (as determined for U.S. federal income tax purposes),
the Issuer will be treated as an entity disregarded as separate from the Depositor. If
beneficially owned by a Person other than Ford Credit, each Class of Notes is intended to be
treated as indebtedness for U.S. federal income tax purposes. The Depositor agrees, and the



4









 







Noteholders by acceptance of their Notes agree in the Indenture, to such treatment and each agrees
to take no action inconsistent with such treatment.



     (b) If one or more Classes of Notes is recharacterized as an equity interest in the Issuer,
and not as indebtedness (any such Class, a “Recharacterized Class”) and any such
Recharacterized Class is treated as not owned by Ford Credit or the Depositor (if the Depositor is
not an entity disregarded as separate from Ford Credit for U.S. federal income tax purposes) for
U.S. federal income, or State or local income or franchise tax purposes, the parties intend that
the Issuer be characterized as a partnership among Ford Credit or the Depositor (to the extent
either is at that time treated as an equity owner of the Issuer for U.S. federal income tax
purposes), any other holder of the Residual Interest and any holders of the Recharacterized Class
or Classes. In that event, for purposes of U.S. federal income, State and local income or
franchise tax each month:




     (i) amounts paid as interest to holders of any Recharacterized Class will be treated as
a guaranteed payment within the meaning of Section 707(c) of the Code;




     (ii) to the extent the characterization provided for in Section 2.11(a) is not
respected, gross ordinary income of the Issuer for such month as determined for U.S. federal
income tax purposes will be allocated to the holders of each Recharacterized Class as of the
Record Date occurring within such month, in an amount equal to the sum of (A) the interest
accrued to such Recharacterized Class for such month, (B) the portion of the market discount
on the Receivables accrued during such month that is allocable to the excess, if any, of the
aggregate initial Note Balance of such Recharacterized Class over the initial aggregate
issue price of the Notes of such Recharacterized Class and (C) any amount expected to be
distributed to the holders of such Class of Notes pursuant to Section 8.2 of the Indenture
(to the extent not previously allocated pursuant to this Section 2.11(b)(ii)) to the extent
necessary to reverse any net loss previously allocated to holders of the Notes of such
Recharacterized Class (to the extent not previously reversed pursuant to this Section
2.11(b)(ii)(C)); and




     (iii) thereafter all remaining net income of the Issuer (subject to the modifications
set forth below) for such month as determined for U.S. federal income tax
purposes (and each item of income, gain, credit, loss or deduction entering into the
computation thereof) will be allocated to the holder of the Residual Interest.



     If the gross ordinary income of the Issuer for any month is insufficient for the allocations
described in Section 2.11(b)(ii) above, subsequent gross ordinary income will first be allocated to
each Recharacterized Class in alphabetical order (if applicable) to make up such shortfall before
any allocation pursuant to Section 2.11(b)(iii). Net losses of the Issuer, if any, for any month
as determined for U.S. federal income tax purposes (and each item of income, gain, credit, loss or
deduction entering into the computation thereof) will be allocated to the holder of the Residual
Interest to the extent the holder of the Residual Interest is reasonably expected to bear the
economic burden of such net losses, and any remaining net losses will be allocated in reverse
alphabetical order (if applicable) to each Recharacterized Class, in each case, until the Note
Balance of such Recharacterized Class is reduced to zero as of the Record Date occurring within
such month, and among each Recharacterized Class, in proportion to their ownership of the



5









 







aggregate Note Balance of such Recharacterized Class on such Record Date. The tax matters partner designated
pursuant to Section 2.11(f) is authorized to modify the allocations in this Section 2.11(b) if
necessary or appropriate, in its sole discretion, for the allocations to fairly reflect the
economic income, gain or loss to the holder of the Residual Interest or the holders of a
Recharacterized Class or as otherwise required by the Code.



     (c) The parties agree that, unless otherwise required by the appropriate tax authorities, the
Depositor, on behalf of the Issuer, will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterizations described in Section
2.11(a).



     (d) The Owner Trustee will not elect or cause the Issuer to elect, and the other parties to
this Agreement will not elect or permit an election to be made, to treat the Issuer as an
association taxable as a corporation for U.S. federal income tax purposes pursuant to Treasury
Regulation §301.7701-3.



     (e) If at any time the Issuer is not treated as an entity disregarded as separate from the
Depositor for U.S. federal income tax purposes, the Owner Trustee will, based on information
provided by or on behalf of the Depositor, (i) maintain the books of the Issuer on the basis of a
calendar year and the accrual method of accounting, (ii) deliver to the holder of the Residual
Interest such information as may be required under the Code to enable such holder to prepare its
U.S. federal and State income tax returns, (iii) file any tax returns relating to the Issuer and
make such elections as may be required or appropriate under any applicable U.S. federal or State
statute and (iv) collect any withholding tax as described in and in accordance with Section 4.1(c).



     (f) If at any time the Issuer is not treated as an entity disregarded as separate from the
Depositor for U.S. federal income tax purposes, the Depositor so long as it is treated as holding
any equity interest in the Issuer for U.S. federal income tax purposes, and otherwise, the owner of
such equity interests designated by a majority of such owners, will (i) prepare and sign, on behalf
of the Issuer, the tax returns of the Issuer and (ii) be designated the “tax matters partner” of
the Issuer pursuant to Section 6231(a)(7)(A) of the Code.



ARTICLE III

RESIDUAL INTEREST AND TRANSFER OF INTERESTS




     Section 3.1. The Residual Interest.



     (a) Upon the formation of the Issuer by the contribution and conveyance by the Depositor
pursuant to Section 2.5, the Depositor will be the sole holder of the Residual Interest. The
holder of the Residual Interest will be entitled, pro rata, to any amounts not needed on any
Payment Date to make payments on the Notes and on all other obligations to be paid under the
Indenture and this Agreement, and to receive amounts remaining in the Reserve Account following the
payment in full of the Notes and of all other amounts owing or to be distributed under this
Agreement, the Indenture or the Sale and Servicing Agreement to the Secured Parties upon the
termination of the Issuer.



     (b) The Depositor may exchange its Residual Interest for additional securities issued by the
Issuer pursuant to one or more supplemental indentures to the Indenture or amendments to



6









 







this Agreement. Such additional securities may consist of one or more classes of notes, certificates or
other securities, as directed by the Depositor, each having the characteristics, rights and
obligations as may be directed by the Depositor (which may include subordination to one or more
other classes of such additional securities); provided:




     (i) the Depositor delivers, or causes the Administrator to deliver, to the Indenture
Trustee and the Owner Trustee an Officer’s Certificate to the effect that the issuance of
such additional securities will not have a material adverse effect on the Notes;




     (ii) the Depositor delivers an Opinion of Counsel to the Indenture Trustee and the
Owner Trustee to the effect that the issuance of such additional securities will not (A)
cause any Note to be deemed sold or exchanged for purposes of Section 1001 of the Code, (B)
cause the Issuer to be treated as an association or publicly traded partnership taxable as a
corporation for U.S. federal income tax purposes, or (C) adversely affect the treatment of
the Notes as debt for U.S. federal income tax purposes; and




     (iii) the Depositor either delivers to the Indenture Trustee and the Owner Trustee (A)
an Opinion of Counsel to the effect that, after giving effect to such exchange, there will
be no withholding imposed under Sections 1441 or 1442 of the Code in respect of payments on
any such additional security or that the withholding tax imposed will be no greater than the
withholding tax imposed prior to such exchange or (B) an Officer’s Certificate that states
withholding is applicable to payments on any such additional securities, the rate of
withholding tax required on such payments, and that such amounts will be withheld and
remitted to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.



     Without limiting the foregoing, one or more classes of such additional securities may, if so
directed by the Depositor, be secured by all or a portion of the Trust Property, so long as such
security interest is subordinated in priority to the security interest granted to the Secured
Parties pursuant to the Indenture. Subject to this Section 3.1(b) and the other terms of the
Transaction Documents, the Owner Trustee, on behalf of the Issuer, will take (at the expense of the
Depositor) all actions requested by the Depositor to facilitate the issuance and sale of any such
additional securities or the Grant and perfection of any security interest granted pursuant to this
Section 3.1(b), including the authorization of the filing of any financing statements in
jurisdictions deemed necessary or advisable by the Depositor to perfect such security interest.



     Section 3.2. Registration of Residual Interests; Transfer of the Residual Interest.
The Issuer appoints the Owner Trustee to be the “Trust Registrar” and to keep a register (the
“Trust Register”) for the purpose of registering Residual Interests and transfers of Residual
Interests as provided in this Agreement. Upon any resignation of the Trust Registrar, the Issuer
will promptly appoint a successor or, if it elects not to make such an appointment, assume the
duties of Trust Registrar. The holder of the Residual Interest will be permitted to sell,
transfer, assign or convey its rights in the Residual Interest to any Person if the following
conditions are satisfied:



     (a) such holder of the Residual Interest delivers an Opinion of Counsel to the Issuer and the
Indenture Trustee to the effect that such action will not cause the Issuer to be or become



7









 







characterized for U.S. federal or any then Applicable Tax State income tax purposes as an
association or publicly traded partnership taxable as a corporation;



     (b) such holder of the Residual Interest delivers to the Indenture Trustee and the Owner
Trustee (i) an Opinion of Counsel to the effect that, after giving effect to such action, there
will be no withholding imposed under Sections 1441 or 1442 of the Code in respect of payments on
any such transferred security or that the withholding tax imposed will be no greater than the
withholding tax imposed prior to such transfer or (ii) an Officer’s Certificate that states
withholding is applicable to payments on any such transferred security, the rate of withholding tax
required on such payments, and that such amounts will be withheld and remitted to the Internal
Revenue Service in satisfaction of the requirements of Sections 1441 and 1442 of the Code;



     (c) the Depositor has notified the transferee or assignee of the Residual Interest of the tax
positions previously taken by it, as holder of the Residual Interest, for U.S. federal and any
Applicable Tax State income tax purposes and the transferee or assignee has agreed to take
positions for U.S. federal and any Applicable Tax State income tax purposes consistent with the tax
positions previously taken by the Depositor, as holder of the Residual Interest;



     (d) the holder or assignee of the Residual Interest delivers to the Indenture Trustee and the
Owner Trustee a certification that it is not, and is not acting on behalf of or investing the
assets of (i) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to
Title I of ERISA, (ii) a “plan” (as defined in Section 4975(e)(1) of the Code) that is subject to
Section 4975 of the Code, (iii) an entity whose underlying assets include “plan assets” by reason
of a plan’s investment in the entity (within the meaning of Department of Labor Regulation 29
C.F.R. Section 2510.3-101 or otherwise under ERISA), or (iv) an employee benefit plan or retirement
arrangement that is subject to any Similar Law; and



     (e) if the assignee of the Residual Interest is Ford Credit or an Affiliate of Ford Credit
that is not a special-purpose, bankruptcy remote entity, the holder of the Residual Interest
provides evidence of satisfaction of the Rating Agency Condition.



     Section 3.3. Capital Accounts. This Section 3.3 will apply only if the Issuer is not
treated as an entity disregarded for U.S. federal income tax purposes.



     (a) The Owner Trustee will establish and maintain, in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations, a separate bookkeeping account (a “Capital
Account”) for the Depositor and each other person treated as an equity owner for U.S. federal
income tax purposes.



     (b) Notwithstanding any other provision of this Agreement to the contrary, the foregoing
provisions of this Section 3.3 regarding the maintenance of Capital Accounts will be construed so
as to comply with the provisions of the Treasury Regulations promulgated pursuant to Section 704 of
the Code. The Depositor is authorized to modify these provisions to the minimum extent necessary
to comply with such regulations.



     Section 3.4. Maintenance of Office or Agency. The Owner Trustee will maintain an
office or offices or agency or agencies where notices and demands to or upon the Owner Trustee



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in respect of the Transaction Documents may be served. The Owner Trustee designates its Corporate
Trust Office for such purposes and will promptly notify the Depositor and the Indenture Trustee of
any change in the location of its Corporate Trust Office.



     Section 3.5. Distributions to the Holder of the Residual Interest. If the Trust
Distribution Account has been established, the Owner Trustee will have the revocable power to
withdraw funds from the Trust Distribution Account for the purpose of making distributions to the
holder of the Residual Interest under this Agreement. The Owner Trustee will make the
distributions pursuant to Sections 3.1, 4.1, 4.2 and 8.1. The Owner Trustee will hold all sums
held by it for distribution to the holder of the Residual Interest in trust for the benefit of the
holder of the Residual Interest until such sums are distributed to the holder of the Residual
Interest.



ARTICLE IV

APPLICATION OF TRUST FUNDS; CERTAIN DUTIES




     Section 4.1. Application of Trust Funds. Upon request of the Depositor, the Owner
Trustee will establish and maintain the Trust Distribution Account as provided in Section 4.1 of
the Sale and Servicing Agreement. If the Trust Distribution Account has been established:



     (a) On each Payment Date, the Owner Trustee, based on the information contained in the Monthly
Investor Report, will withdraw the amounts deposited into the Trust Distribution Account pursuant
to Sections 8.2(c)(xiii), 8.2(d)(viii) and 8.2(e)(xiv) of the Indenture on or before such Payment
Date and distribute such amounts to the holder of the Residual Interest.



     (b) Following the satisfaction and discharge of the Indenture and the payment in full of the
principal and interest on the Notes, the Owner Trustee will distribute any remaining funds in the
Trust Distribution Account to the holder of the Residual Interest.



     (c) If any withholding tax is imposed on the Issuer’s payment (or allocations of income) to
the holder of the Residual Interest, such tax will reduce the amount otherwise distributable to
such holder in accordance with this Section 4.1(c). The Owner Trustee is authorized and directed
to retain from amounts otherwise distributable to the holder of the Residual Interest sufficient
funds for the payment of any such withholding tax that is legally owed by the Issuer (but such
authorization will not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the holder of the Residual
Interest will be treated as cash distributed to such holder at the time it is withheld by the
Issuer and remitted to the appropriate taxing authority. If there is a possibility that
withholding tax is payable with respect to a distribution, the Owner Trustee may, in its sole
discretion, withhold such amounts in accordance with this Section 4.1(c). If the holder of a
Residual Interest wishes to apply for a refund of any such withholding tax, the Owner Trustee will
reasonably cooperate with such holder in making such claim so long as such holder agrees to
reimburse the Owner Trustee for any out-of-pocket expenses incurred in so cooperating.



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     Section 4.2. Method of Payment. Distributions required to be made to the holder of
the Residual Interest on any Payment Date will be made by wire transfer, in immediately available
funds, to the account specified by such holder to the Owner Trustee.



ARTICLE V

AUTHORITY AND DUTIES OF THE OWNER TRUSTEE




     Section 5.1. General Authority.



     (a) Upon the Depositor’s execution of this Agreement, the Owner Trustee is authorized and
directed, on behalf of the Issuer, to (i) execute and deliver the Transaction Documents and each
certificate or other document attached as an exhibit to or contemplated by the Transaction
Documents to which the Issuer is to be a party and (ii) direct the Indenture Trustee to
authenticate and deliver the Notes.



     (b) The Owner Trustee is authorized to take all actions required of the Issuer pursuant to the
Transaction Documents and is authorized to take such action on behalf of the Issuer as is permitted
by the Transaction Documents that the Servicer or the Administrator directs with
respect to the Transaction Documents, except to the extent that this Agreement requires the
consent of the Noteholders or the holder of the Residual Interest for such action.



     Section 5.2. General Duties. Subject to Section 5.3, it is the duty of the Owner
Trustee to discharge all of its responsibilities pursuant to this Agreement and the Transaction
Documents to which the Issuer is a party and to administer the Issuer in the interest of the holder
of the Residual Interest, subject to the Lien of the Indenture and in accordance with the
Transaction Documents. The Owner Trustee will be deemed to have discharged its duties and
responsibilities under the Transaction Documents to the extent the Administrator is required in the
Administration Agreement to perform any act or to discharge such duty of the Owner Trustee or the
Issuer under any Transaction Document. The Owner Trustee will not be held liable for the default
or failure of the Administrator to carry out its obligations under the Administration Agreement.
The Owner Trustee will have no obligation to administer, service or collect the Receivables or to
maintain, monitor or otherwise supervise the administration, servicing or collection of the
Receivables.



     Section 5.3. Action upon Prior Notice with Respect to Certain Matters. With respect
to the following matters, the Owner Trustee may not take action unless (i) at least 30 days before
taking such action, the Owner Trustee has notified the Indenture Trustee (who will notify the
Noteholders), the holder of the Residual Interest and the Administrator (who will notify the Rating
Agencies) of the proposed action and (ii) the Indenture Trustee acting upon instruction of the
Noteholders of a majority of the Note Balance of the Controlling Class (or if no Notes are
Outstanding, the holder of the Residual Interest) have not notified the Owner Trustee before the
30th day after receipt of such notice that such majority of the Note Balance of the Controlling
Class (or if no Notes are Outstanding, the holder of the Residual Interest) has withheld consent or
provided alternative direction:



     (a) the initiation of any material claim or lawsuit by the Issuer and the settlement of any
material action, claim or lawsuit brought by or against the Issuer;



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     (b) the election by the Issuer to file an amendment to the Certificate of Trust (unless such
amendment is required to be filed under the Delaware Statutory Trust Act), except to cure any
ambiguity or to amend or supplement any provision in a manner or to add any provision that would
not materially adversely affect the interests of the holders of the Notes or the Residual Interest;



     (c) the appointment pursuant to the Indenture of a successor Indenture Trustee or the consent
to the assignment by the Indenture Trustee of its obligations under the Indenture or this
Agreement; and



     (d) consenting to the Administrator taking any of the actions described in clauses (a) through
(c) above.



     Section 5.4. Action upon Direction by the Holder of the Residual Interest with Respect to
Certain Matters.



     (a) The Owner Trustee on behalf of the Issuer will not execute an amendment to the Sale and
Servicing Agreement, the Indenture or the Administration Agreement that would materially adversely
affect the holder of the Residual Interest without the consent of such holder.



     (b) The Owner Trustee will not (i) remove the Servicer or appoint a successor Servicer under
Article VII of the Sale and Servicing Agreement, or (ii) remove the Administrator or appoint a
successor Administrator under Article V of the Administration Agreement unless (A) there is a
Servicer Termination Event subsequent to the payment in full of the Notes and (B) the holder of the
Residual Interest directs the Owner Trustee to take such action.



     Section 5.5. Action with Respect to Bankruptcy. The Owner Trustee may not commence a
voluntary proceeding in bankruptcy relating to the Issuer unless the Notes have been paid in full
and the holder of the Residual Interest approves of such commencement in advance and delivers to
the Owner Trustee a certificate certifying that it reasonably believes that the Issuer is
insolvent.



     Section 5.6. Action upon Instruction.



     (a) The Owner Trustee will not be required to take any action under any Transaction Document
if the Owner Trustee reasonably determines, or is advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee, is contrary to any Transaction Document or is
contrary to law.



     (b) If (i) the Owner Trustee is unsure as to the application of any provision of any
Transaction Document, (ii) any provision of any Transaction Document is, or appears to be, in
conflict with any other applicable provision, (iii) this Agreement permits any determination by the
Owner Trustee or is silent or is incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts or (iv) the Owner Trustee is unable to
decide between alternative courses of action permitted or required by any Transaction Document, the
Owner Trustee may, and with respect to clause (iv) will, notify the Administrator requesting
instruction and, to the extent that the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Owner Trustee will not be liable



11









 





to any Person on account of such action or inaction. If the Owner Trustee does not receive appropriate
instruction within ten days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it may, but will be under
no duty to, take or refrain from taking such action, not inconsistent with the Transaction
Documents, as it deems to be in the best interests of the holder of the Residual Interest, and will
have no liability to any Person for such action or inaction.



     Section 5.7. No Duties Except as Specified in this Agreement or in Instructions.
The Owner Trustee has no duty or obligation to manage, make any payment with respect to,
register, record, sell, dispose of, or otherwise deal with the Trust Property, or to otherwise take
or refrain from taking any action under, or in connection with, any document contemplated by this
Agreement to which the Owner Trustee or the Issuer is a party, except as provided by this Agreement
or in any document or instruction received by the Owner Trustee pursuant to Section 5.6. No
implied duties or obligations will be read into any Transaction Document against the Owner Trustee.
The Owner Trustee has no responsibility for filing any financing statements or continuation
statements or to otherwise perfect or maintain the perfection of any security interest or Lien
granted to it under this Agreement or to prepare or file any Securities and Exchange Commission
filing for the Issuer or to record any Transaction Document. The Owner Trustee nevertheless agrees
that it will promptly take, at its own cost and expense, all action as may be necessary to
discharge any Lien (other than the Lien of the Indenture) on any part of the Trust Property that
results from actions by, or claims against, the Owner Trustee that are not related to the ownership
or the administration of the Trust Property.



     Section 5.8. No Action Except Under Specified Documents or Instructions. The Owner
Trustee will not manage, control, use, sell, dispose of or otherwise deal with any part of the
Trust Property except (a) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (b) in accordance with the other Transaction
Documents to which the Issuer or the Owner Trustee is a party and (c) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section 5.6. The Depositor will
not direct the Owner Trustee to take any action that would violate this Section 5.8.



     Section 5.9. Prohibition on Certain Actions. The Owner Trustee will not take any
action (a) that is inconsistent with the purposes of the Issuer set forth in Section 2.3 or (b)
that, to the knowledge of the Owner Trustee, would (i) cause any Class of Notes not to be treated
as indebtedness for U.S. federal income or Applicable Tax State income or franchise tax purposes,
(ii) be deemed to cause a sale or exchange of the Notes for purposes of Section 1001 of the Code
(unless no gain or loss would be recognized on such deemed sale or exchange for U.S. federal income
tax purposes) or (iii) cause the Issuer or any portion thereof to be taxable as an association (or
publicly traded partnership) taxable as a corporation for U.S. federal income or Applicable Tax
State income or franchise tax purposes. The Administrator will not direct the Owner Trustee to
take action that would violate this Section 5.9.



     Section 5.10. Audits of the Owner Trustee. The Owner Trustee agrees that, with
reasonable prior notice, it will permit any authorized representative of the Servicer or the
Administrator, during the Owner Trustee’s normal business hours, to examine and audit the books of
account, records, reports and other documents and materials of the Owner Trustee relating to (a)
the performance of the Owner Trustee’s obligations under this Agreement, (b) any



12









 




payments of fees and expenses of the Owner Trustee in connection with such performance and (c) any claim made by the
Owner Trustee under this Agreement. In addition, the Owner Trustee will permit such
representatives to make copies and extracts of any such books and records and to discuss the same with the Owner
Trustee’s officers and employees. Each of the Servicer and the Administrator will, and will cause
its authorized representatives to, hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Servicer or the Administrator, as the case may be,
may reasonably determine that such disclosure is consistent with its obligations under this
Agreement. The Owner Trustee will maintain all such pertinent books, records, reports and other
documents and materials for a period of two years after the termination of its obligations under
this Agreement.




     Section 5.11. Furnishing of Documents. Upon request from the holder of the Residual
Interest, the Owner Trustee will furnish to such holder copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished to the Owner
Trustee under the Transaction Documents.



     Section 5.12. Sarbanes-Oxley Act. Notwithstanding anything to the contrary in any
Transaction Document, the Owner Trustee will not be required to execute, deliver or certify on
behalf of the Issuer, the Servicer, the Depositor or any other Person any filings, certificates,
affidavits or other instruments required by the Securities and Exchange Commission or required
under the Sarbanes-Oxley Act of 2002. However, any entity executing, delivering or certifying such
filings, certificates, affidavits or other instruments required by the Securities and Exchange
Commission or required under the Sarbanes-Oxley Act of 2002 on behalf of the Issuer may request, at
its option, such subcertifications, including any assessments of compliance required from the Owner
Trustee as it may deem necessary to provide such certifications and the Owner Trustee will
reasonably comply with such request.



     Section 5.13. Maintenance of Licenses. The Owner Trustee will obtain and maintain any
licenses that the Administrator informs the Owner Trustee are required to be obtained or maintained
by the Owner Trustee under the laws of any State in connection with the Owner Trustee’s duties and
obligations under the Transaction Documents.



     Section 5.14. Covenants for Reporting of Repurchase Demands due to Breaches of
Representations and Warranties. The Owner Trustee will (i) notify the Sponsor, the Depositor
and the Servicer, as soon as practicable and in any event within five Business Days, of all demands
or requests communicated (in writing or orally) to the Issuer or the Owner Trustee for the
repurchase of any Receivable pursuant to Section 3.3 of the Purchase Agreement or Section 2.4 of
the Sale and Servicing Agreement and (ii) promptly upon request by the Sponsor, the Depositor or
the Servicer, provide to them any other information reasonably requested to facilitate compliance
by them with Rule 15Ga-1 under the Exchange Act, and Items 1104(e) and 1121(c) of Regulation AB.
In no event will the Owner Trustee or the Issuer have any responsibility or liability in
connection with any filing required to be made by a securitizer under the Exchange Act or
Regulation AB.



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ARTICLE VI

REGARDING THE OWNER TRUSTEE




     Section 6.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts
created by this Agreement and agrees to perform its duties under this Agreement with respect to
such trusts but only in accordance with this Agreement. The Owner Trustee also agrees to
distribute all monies actually received by it constituting part of the Trust Property in accordance
with the Transaction Documents. The Owner Trustee will not be liable under any Transaction
Document under any circumstances, except (i) for its own willful misconduct, bad faith or
negligence (except for errors in judgment) or (ii) if any representation or warranty in Section 6.2
is not true and correct as of the Closing Date. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):



     (a) the Owner Trustee will not be liable with respect to any action taken or omitted to be
taken by it in accordance with the instructions of the Noteholders of a majority of the Note
Balance of the Controlling Class, the Indenture Trustee, the Depositor, the holder of the Residual
Interest, the Administrator or the Servicer;



     (b) no Transaction Document will require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of its rights or powers under any
Transaction Document if the Owner Trustee has reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured or
provided to it;



     (c) the Owner Trustee will not be liable for indebtedness evidenced by or arising under any of
the Transaction Documents, including the principal of and interest on the Notes or amounts
distributable to the holder of the Residual Interest;



     (d) the Owner Trustee will not be responsible for (i) the validity or sufficiency of this
Agreement, (ii) the due execution of this Agreement by the Depositor, (iii) the form, character,
genuineness, sufficiency, value or validity of any of the Trust Property or (iv) the validity or
sufficiency of the other Transaction Documents, the Notes, any Receivable or any related documents,
and the Owner Trustee will in no event assume or incur any liability, duty or obligation to any
Noteholder, the Depositor or the holder of the Residual Interest, other than as provided for in the
Transaction Documents;



     (e) the Owner Trustee will not be liable for the default or misconduct of the Servicer, the
Administrator, the Depositor, the holder of the Residual Interest or the Indenture Trustee under
any of the Transaction Documents or otherwise and the Owner Trustee will have no obligation or
liability to perform the obligations of the Issuer under the Transaction Documents that are
required to be performed by the Administrator under the Administration Agreement, the Servicer
under the Sale and Servicing Agreement or the Indenture Trustee under the Indenture;



     (f) the Owner Trustee will be under no obligation to exercise any of the rights or powers
vested in it by this Agreement or, at the request, order or direction of the Depositor, to
institute, conduct or defend any litigation under this Agreement or in relation to any Transaction
Document or otherwise unless the Depositor has offered to the Owner Trustee reasonable



14









 







security or indemnity satisfactory to it against the costs, expenses, losses, damages, claims and liabilities
that may be incurred by the Owner Trustee. The right of the Owner Trustee to perform any
discretionary act enumerated in any Transaction Document will not be construed as a duty; and



     (g) the Owner Trustee will not be responsible or liable for (i) the legality, validity and
enforceability of any Receivable, (ii) the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle or the maintenance of any such perfection and priority,
(iii) the sufficiency of the Trust Property or the ability of the Trust Property to generate the
amounts necessary to make payments to the Noteholders under the Indenture or distributions to the
holder of the Residual Interest under this Agreement, (iv) the accuracy of any representation or
warranty made under any Transaction Document (other than the representations and warranties made in
Section 6.2) or (v) any action of the Indenture Trustee, the Administrator or the Servicer or any
subservicer taken in the name of the Owner Trustee.



     Section 6.2. Representations and Warranties of the Owner Trustee. The Owner Trustee
represents and warrants to the Depositor as of the Closing Date:



     (a) Organization and Qualification. The Owner Trustee is duly formed and is validly
existing as a national banking association under the laws of the United States. The Owner Trustee
is duly qualified as a national banking association and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of its properties or the conduct of
its activities requires such qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals would not reasonably be expected to have a material adverse
effect on the Owner Trustee’s ability to perform its obligations under this Agreement.



     (b) Power, Authorization and Enforceability. The Owner Trustee has the power and
authority to execute deliver and perform the terms this Agreement. The Owner Trustee has
authorized the execution, delivery and performance of the terms of this Agreement. This Agreement
is the legal, valid and binding obligation of the Owner Trustee enforceable against the Owner
Trustee, except as may be limited by insolvency, bankruptcy, reorganization or other laws relating
to the enforcement of creditors’ rights or by general equitable principles.



     (c) No Conflicts and No Violation. The execution and delivery by the Owner Trustee of
this Agreement, the consummation by the Owner Trustee of the transactions contemplated by this
Agreement and the compliance by the Owner Trustee with this Agreement will not (i) violate any
federal or State law, governmental rule or regulation governing the banking or trust powers of the
Owner Trustee or any judgment or order binding on it, (ii) conflict with, result in a breach of, or
constitute (with or without notice or lapse of time or both) a default under its charter documents
or by-laws or any indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Owner Trustee is a debtor or guarantor or (iii) violate any
law or, to the Owner Trustee’s knowledge, any order, rule, or
regulation applicable to the Owner Trustee of any court or of any federal or State regulatory
body, administrative agency or other governmental instrumentality having jurisdiction over the
Owner Trustee or its properties, in each case which conflict, breach, default, Lien, or violation
would reasonably be expected to have a material adverse effect on the Owner Trustee’s ability to
perform its obligations under this Agreement.



15









 





     (d) No Proceedings. To the Owner Trustee’s knowledge, there are no proceedings or
investigations pending or overtly threatened in writing, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction over the Owner
Trustee or its properties: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions contemplated by any of the
Transaction Documents, or (iii) seeking any determination or ruling that would reasonably be
expected to have a material adverse effect on the Owner Trustee’s ability to perform its
obligations under, or the validity or enforceability of, this Agreement.



     (e) Banking Association. The Owner Trustee is a banking association satisfying
Section 3807(a) of the Delaware Statutory Trust Act and meets the eligibility requirements of
Section 9.1(a).



     (f) Information Provided by the Owner Trustee. The information provided by the Owner
Trustee in its individual capacity in any certificate delivered by a Responsible Person of the
Owner Trustee is true and correct in all material respects.



     Section 6.3. Reliance; Advice of Counsel.



     (a) The Owner Trustee may rely upon, will be protected in relying upon and will incur no
liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document believed by it to be genuine that
appears on its face to be properly executed and signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or matter the method of
the determination of which is not specifically prescribed in this Agreement, the Owner Trustee may
for all purposes of this Agreement rely on a certificate, signed by the president or any vice
president or by the treasurer or other Responsible Persons of the relevant party, as to such fact
or matter and such certificate will constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.



     (b) In the exercise or administration of the trusts under this Agreement and in the
performance of its duties and obligations under the Transaction Documents, the Owner Trustee (i)
may act directly or through its agents or attorneys pursuant to agreements entered into with any of
them and will not be liable for the conduct or misconduct of such agents or attorneys if the Owner
Trustee selects such agents or attorneys with reasonable care and (ii) may consult with counsel,
accountants and other skilled Persons whom the Owner Trustee selects with reasonable care and
employs. The Owner Trustee will not be liable for anything it does, suffers
or omits to do in good faith in accordance with the written opinion or advice of any such
counsel, accountants or other such Persons that is not contrary to any Transaction Document.



     Section 6.4. Not Acting in Individual Capacity. Except as provided in this Article
VI, in accepting the trusts created by this Agreement, U.S. Bank Trust National Association acts
solely as Owner Trustee under this Agreement and not in its individual capacity. All Persons
having any claim against the Owner Trustee by reason of the transactions contemplated by any
Transaction Document will look only to the Trust Property for payment or satisfaction thereof.



16









 







However, the Owner Trustee will be responsible for any breach of its representations and warranties
made in Section 6.2.



     Section 6.5. U.S. Bank Trust National Association May Own Notes. U.S. Bank Trust
National Association, in its individual or any other capacity, may become the owner or pledgee of
Notes and may deal with the Depositor, the holder of the Residual Interest, the Servicer, the
Administrator and the Indenture Trustee in banking transactions with the same rights as it would
have if it were not the Owner Trustee.



     Section 6.6. Duty to Update Disclosure. The Owner Trustee will notify and provide
information, and certify such information in an Officer’s Certificate, to the Depositor upon any
event or condition relating to the Owner Trustee or actions taken by the Owner Trustee that (A) (i)
is required to be disclosed by the Depositor under Item 2 (the institution of, material
developments in, or termination of legal proceedings against U.S. Bank Trust National Association
that are material to Noteholders) of Form 10-D under the Exchange Act within five days of such
occurrence or (ii) the Depositor reasonably requests of the Owner Trustee that the Depositor, in
good faith, believes is necessary to comply with Regulation AB within five days of request or (B)
(i) is required to be disclosed under Item 6.02 (resignation, removal, replacement or substitution
of U.S. Bank Trust National Association as Owner Trustee) of Form 8-K under the Exchange Act within
two days of a Responsible Person of the Owner Trustee becoming aware of such occurrence or (ii)
causes the information provided by the Owner Trustee in any certificate delivered by a Responsible
Person of the Owner Trustee to be untrue or incorrect in any material respect or is necessary to
make the statements provided by the Owner Trustee in light of the circumstances in which they were
made not misleading within five days of a Responsible Person of the Owner Trustee becoming aware
thereof. The obligations of the Owner Trustee to provide such information with respect to the
period during which it served as Owner Trustee will survive the resignation or removal of the Owner
Trustee under the Agreement.



ARTICLE VII

COMPENSATION AND INDEMNIFICATION OF THE OWNER TRUSTEE;

ORGANIZATIONAL EXPENSES




     Section 7.1. Owner Trustee’s Fees and Expenses. The Issuer will, or will cause the
Administrator to, pay the Owner Trustee as compensation for its services under this Agreement such
fees as have been separately agreed
upon by the Administrator and the Owner Trustee. The Issuer will reimburse the Owner Trustee
for all reasonable out-of-pocket expenses incurred or made by the Owner Trustee in performing its
rights and duties under this Agreement, including the reasonable compensation, expenses and
disbursements of the Owner Trustee’s agents, counsel, accountants and experts, but excluding any
expenses incurred by the Owner Trustee through the Owner Trustee’s own willful misconduct, bad
faith or negligence (other than errors in judgment).



     Section 7.2. Indemnification of the Owner Trustee.



     (a) The Depositor will, or will cause the Administrator to, indemnify, defend and hold
harmless the Owner Trustee, and its respective officers, directors, employees and agents,



17









 







from and against any and all costs, expenses, losses, damages, claims and liabilities (including the
reasonable compensation, expenses and disbursements of the Owner Trustee’s agents, counsel,
accountants and experts) incurred by it in connection with the administration of and the
performance of its duties under this Agreement, including the costs and expenses of defending
itself against any loss, damage, claim or liability incurred by it in connection with the exercise
or performance of any of its powers or duties under the Indenture, but excluding any cost, expense,
loss, damage, claim or liability (i) incurred by the Owner Trustee through the Owner Trustee’s own
willful misconduct, bad faith or negligence (other than errors in judgment) or (ii) arising from
the inaccuracy of any representation or warranty contained in Section 6.2.



     (b) Promptly upon receipt by the Owner Trustee, or any of its officers, directors, employees
and agents (each, an “Indemnified Person”), of notice of the commencement of any Proceeding
against any such Indemnified Person, such Indemnified Person will, if a claim in respect of such
Proceeding is to be made under Section 7.2(a), notify the Depositor and the Administrator of the
commencement of such Proceeding. The Depositor, or, if the Depositor so causes, the Administrator,
may participate in and assume the defense and settlement of any such Proceeding at its expense, and
no settlement of such Proceeding may be made without the approval of the Depositor or the
Administrator, as applicable, and such Indemnified Person, which approvals will not be unreasonably
withheld, delayed or conditioned. After notice from the Depositor or the Administrator, as
applicable, to the Indemnified Person of the intention of the Depositor or the Administrator, as
applicable, to assume the defense of such Proceeding with counsel reasonably satisfactory to the
Indemnified Person, and so long as the Depositor or the Administrator, as applicable, so assumes
the defense of such Proceeding in a manner reasonably satisfactory to the Indemnified Person,
neither the Depositor nor the Administrator will be liable for any legal expenses of counsel to the
Indemnified Person unless there is a conflict between the interests of the Depositor or the
Administrator, as applicable, on one hand, and an Indemnified Person, on the other hand, in which
case the Depositor, or, if Depositor so causes, the Administrator, will pay for the separate
counsel to the Indemnified Person.



     (c) The Depositor’s obligations under this Section 7.2 are obligations solely of the Depositor
and do not constitute a claim against the Depositor to the extent that the Depositor does not have
funds sufficient to make payment of such obligations. The Owner Trustee, by entering into or
accepting this Agreement, acknowledges and agrees that it has no right, title or interest in or to
the Other Assets of the Depositor. Notwithstanding the preceding sentence, if
the Owner Trustee either (i) asserts an interest or claim to, or benefit from, the Other
Assets or (ii) is deemed to have any such interest, claim to, or benefit in or from the Other
Assets, whether by operation of law, legal process, pursuant to insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Bankruptcy Code), then the Owner Trustee further
acknowledges and agrees that any such interest, claim or benefit in or from the Other Assets is
expressly subordinated to the indefeasible payment in full of the other obligations and
liabilities, which, under the relevant documents relating to the securitization or conveyance of
such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured
by such Other Assets (whether or not any such entitlement or security interest is legally perfected
or otherwise entitled to a priority of distributions or application under applicable law, including
insolvency laws, and whether or not asserted against the Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This subordination agreement is
deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. The
Owner Trustee



18









 







further acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 7.2(c) and this Section 7.2(c) may be enforced by an action for specific performance.
This Section 7.2(c) is for the third party benefit of the holders of such other obligations and
liabilities and will survive the termination of this Agreement.



     Section 7.3. Organizational Expenses of the Issuer. The Depositor will, or will cause
the Administrator to, pay the organizational expenses of the Issuer as they may arise or, upon the
request of the Owner Trustee, the Depositor will, or will cause the Administrator to, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.



     Section 7.4. Certain Expenses of the Indenture Trustee and the Owner Trustee. The
Depositor will reimburse (a) the Indenture Trustee and any successor Indenture Trustee for any
expenses associated with the replacement of the Indenture Trustee pursuant to Section 6.8 of the
Indenture and (b) the Owner Trustee and any successor Owner Trustee for any expenses associated
with the replacement of the Owner Trustee pursuant to Section 9.2 of this Agreement, in each case,
to the extent such amounts have not been otherwise paid pursuant to Section 8.2 of the Indenture.



ARTICLE VIII

TERMINATION




     Section 8.1. Termination of Trust Agreement.



     (a) This Agreement (other than the provisions of Article VII) will terminate and be of no
further force or effect and the Issuer will terminate, wind up and dissolve, upon the earlier to
occur of (i) the last remaining Receivable is paid in full, settled, sold or charged off and any
amounts received are applied or (ii) the payment to the Noteholders and any other holders of
securities issued under any supplemental indentures or amendments to this Agreement, the Indenture
Trustee and the Owner Trustee of all amounts required to be paid to them pursuant to the Indenture,
the Sale and Servicing Agreement and Article IV. Any Insolvency Event,
liquidation or dissolution with respect to the Depositor will not (A) operate to terminate
this Agreement or the Issuer, (B) entitle the Depositor’s legal representatives to claim an
accounting or to take any action or proceeding in any court for a partition or winding up of all or
any part of the Issuer or the Trust Property or (C) otherwise affect the rights, obligations and
liabilities of the parties to this Agreement. Upon dissolution of the Issuer, the Owner Trustee
will wind up the activities and affairs of the Issuer as required by Section 3808 of the Delaware
Statutory Trust Act.



     (b) The Depositor may not revoke or terminate the Issuer, unless it is the holder of 100% of
the Residual Interest and in accordance with Section 8.1(a).



     (c) Upon termination of the Issuer, any remaining Trust Property will be distributed to the
holder of the Residual Interest, and the Owner Trustee will cause the Certificate of Trust to be
cancelled by preparing, executing and filing a certificate of cancellation with the Secretary of
State of the State of Delaware in accordance with Section 3810(c) of the Delaware Statutory Trust
Act or as otherwise required by the Delaware Statutory Trust Act. Upon the filing of such
certificate of cancellation, the Owner Trustee’s services under this Agreement will



19









 







simultaneously terminate. The Owner Trustee will deliver a file-stamped copy of such certificate of cancellation
to the Administrator promptly upon such document becoming available following such filing.



ARTICLE IX

SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES




     Section 9.1. Eligibility Requirements for the Owner Trustee.



     (a) The Owner Trustee must (i) be authorized to exercise corporate trust powers, (ii) have a
combined capital and surplus of at least $50,000,000 and be subject to supervision or examination
by federal or State authorities and (iii) have (or have a parent that has) a long-term debt rating
of investment grade by each of the Rating Agencies or be otherwise acceptable to the Rating
Agencies. If such corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the purpose of this Section
9.1, the combined capital and surplus of such corporation will be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If the Owner Trustee
ceases to be eligible in accordance with this Section 9.1, it must resign immediately in the manner
and with the effect specified in Section 9.2. The Owner Trustee will promptly notify the Depositor
and the Administrator if it ceases to satisfy the requirements of this Section 9.1.



     (b) The Owner Trustee must satisfy Section 3807(a) of the Delaware Statutory Trust Act.



     Section 9.2. Resignation or Removal of the Owner Trustee.



     (a) The Owner Trustee may resign and be discharged from the trusts created by this Agreement
by giving notice to the Depositor and the Administrator.



     (b) The Administrator may remove the Owner Trustee upon notice to the Owner Trustee and will
remove the Owner Trustee if:




     (i) the Owner Trustee ceases to be eligible in accordance with Section 9.1;




     (ii) the Owner Trustee is legally unable to act; or




     (iii) an Insolvency Event with respect to the Owner Trustee has occurred and is
continuing.



     (c) If the Owner Trustee resigns or the Administrator removes the Owner Trustee, the
Administrator will promptly (i) appoint a successor Owner Trustee, by written instrument, in
duplicate and (ii) deliver one copy of such instrument to the outgoing Owner Trustee and one copy
to the successor Owner Trustee. The Owner Trustee will be entitled to payment through the date of
its resignation or removal from distributions made under Section 8.2 of the Indenture. If no
successor Owner Trustee is appointed and has accepted such appointment within 30 days after the
Administrator’s receipt of notice of resignation or removal of the Owner Trustee, the outgoing
Owner Trustee may petition any court of competent jurisdiction for the appointment of



20









 







a successor Owner Trustee. The right to appoint or to petition for the appointment of any such successor Owner
Trustee does not relieve the outgoing Owner Trustee from any obligations otherwise imposed on it
under the Transaction Documents until the appointment of the successor Owner Trustee has become
effective.



     (d) No resignation or removal of the Owner Trustee and appointment of a successor Owner
Trustee pursuant to this Section 9.2 will become effective until (i) the successor Owner Trustee
accepts its appointment as the Owner Trustee pursuant to Section 9.3(a) and (ii) the successor
Owner Trustee files the certificate of amendment to the Certificate of Trust referred to in Section
9.3(d). The Administrator will notify the Depositor, the Indenture Trustee and the Rating Agencies
of any resignation or removal of the Owner Trustee.



     Section 9.3. Successor Owner Trustee.



     (a) Any successor Owner Trustee appointed pursuant to Section 9.2 must execute and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment
under this Agreement. Upon the resignation or removal of the predecessor Owner Trustee becoming
effective pursuant to Section 9.2(d), such successor Owner Trustee, without any further act, will
become fully vested with all the rights, powers, duties, and obligations of its predecessor under
this Agreement. The predecessor Owner Trustee will, upon payment of its fees and expenses, deliver
to the successor Owner Trustee all documents and statements and monies held by it under this
Agreement, and the Administrator and the predecessor Owner Trustee will execute and deliver such
instruments and do such other things as may reasonably be required to vest and confirm in the
successor Owner Trustee all such rights, powers, duties and obligations.



     (b) No successor Owner Trustee may accept appointment as provided in this Section 9.3 unless,
at the time of such acceptance, such successor Owner Trustee is eligible pursuant to Section 9.1.



     (c) Upon the acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.3, the Administrator will notify the Depositor, the Indenture Trustee, the Noteholders and the
Rating Agencies of such successor Owner Trustee.



     (d) Any successor Owner Trustee appointed under this Agreement will promptly file a
certificate of amendment to the Certificate of Trust with the Secretary of State of the State of
Delaware identifying the name and principal place of business of such successor Owner Trustee in
the State of Delaware. The successor Owner Trustee will deliver a file-stamped copy of such
certificate of amendment to the Administrator promptly upon such document becoming available
following such filing.



     Section 9.4. Merger or Consolidation of the Owner Trustee. Any Person (a) into which
the Owner Trustee may be merged or converted or with which it may be consolidated, (b) resulting
from any merger, conversion or consolidation to which the Owner Trustee is a party or (c)
succeeding to all or substantially all of the corporate trust business of the Owner Trustee will,
provided such Person is eligible pursuant to Section 9.1, be the successor of the Owner Trustee
under this Agreement without the execution or filing of any document or any further act (except



21









 







as required under this Section 9.4); provided, that the Owner Trustee (i) notifies the Issuer
(who will notify the Rating Agencies) of such merger or consolidation within 15 Business Days of
such event and (ii) files a certificate of amendment to the Certificate of Trust as required by
Section 9.3(d).



     Section 9.5. Appointment of Separate Trustee or Co-Trustee.



     (a) Notwithstanding any other provision of this Agreement, for the purpose of meeting any
legal requirements of any jurisdiction in which any part of the Trust Property or any Financed
Vehicle may be located, the Administrator and the Owner Trustee acting jointly will have the power
and will execute and deliver all instruments to appoint one or more Persons approved by the Owner
Trustee to act as a separate trustee or as separate trustees, or as co-trustee, jointly with the
Owner Trustee, of all or any part of the Issuer, and to vest in such Person, in such capacity, such
title to the Trust Property, or any part thereof, and, subject to this Section 9.5, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner Trustee consider
necessary or desirable. If the Administrator has not joined in such appointment within 15 Business
Days of its receipt of a request so to do, the Owner Trustee will have the power to make such
appointment. No separate trustee or co-trustee under this Agreement will be required to meet the
terms of eligibility as a successor trustee pursuant to Section 9.1 and no notice of the
appointment of any separate trustee or co-trustee is required.



     (b) Each separate trustee and co-trustee will, to the extent permitted by law, be appointed
and act subject to the following:




     (i) all rights, powers, duties, and obligations conferred or imposed upon the Owner
Trustee will be conferred upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee is incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties, and obligations (including the
holding of title to the Trust Property or any portion thereof in any such jurisdiction) may
be exercised and performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;




     (ii) no trustee under this Agreement will be personally liable by reason of any act or
omission of any other trustee under this Agreement; and




     (iii) the Administrator and the Owner Trustee acting jointly may accept the resignation
of or remove any separate trustee or co-trustee.



     (c) Any notice, request or other writing given to the Owner Trustee will be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or co-trustee must refer to this
Agreement and the conditions of this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, will be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or separately, as may be



22









 







provided in such instrument, subject to this Agreement. The Owner Trustee will keep a copy of each such
instrument in its files and will deliver a copy of each such instrument to the Administrator.



     (d) Any separate trustee or co-trustee may appoint the Owner Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee dies, becomes incapable of acting, resigns or is removed, all of its estates,
properties, rights, remedies and trusts will vest in and be exercised by the Owner Trustee, to the
extent permitted by law, without the appointment of a new or successor trustee.



     Section 9.6. Compliance with Delaware Statutory Trust Act. Notwithstanding anything
in this Agreement to the contrary, the Issuer must have at least one trustee that meets the
requirements of Section 3807(a) of the Delaware Statutory Trust Act.



ARTICLE X

MISCELLANEOUS




     Section 10.1. Supplements and Amendments.



     (a) This Agreement may be amended by the holder of the Residual Interest and the Owner
Trustee, with prior notice by the Administrator to the Rating Agencies, without the consent of any
of the Noteholders, for the purpose of curing any ambiguity or correcting or supplementing any
provisions in this Agreement inconsistent with any other provision of this Agreement.



     (b) This Agreement may be amended by the holder of the Residual Interest and the Owner
Trustee, with prior notice by the Administrator to the Rating Agencies, without the consent of any
of the Noteholders, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or issuing securities in exchange for all or a
portion of the Residual Interest, subject to the following conditions:




     (i) such holder delivers an Officer’s Certificate to the Indenture Trustee and the
Owner Trustee to the effect that such amendment will not have a material adverse effect on
the Notes;




     (ii) such holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to be deemed sold or
exchanged for purposes of Section 1001 of the Code, (B) cause the Issuer to be treated as an
association or publicly traded partnership taxable as a corporation for U.S. federal income
tax purposes, or (C) adversely affect the treatment of the Notes as debt for U.S. federal
income tax purposes; and




     (iii) such holder either delivers to the Indenture Trustee and the Owner Trustee (A) an
Opinion of Counsel to the effect that, after giving effect to such amendment, there will be
no withholding imposed under Sections 1441 or 1442 of the Code in respect of payments on any
additional security or that the withholding tax imposed will be no greater than the
withholding tax imposed prior to such amendment or (B) an Officer’s



23









 







Certificate that states
withholding is applicable to payments on any such additional securities, the rate of
withholding tax required on such payments, and that such amounts will be withheld and
remitted to the Internal Revenue Service in satisfaction of the requirements of Sections
1441 and 1442 of the Code.



     (c) This Agreement also may be amended by the holder of the Residual Interest and the Owner
Trustee for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement with prior notice by the Administrator to the Rating Agencies,
subject to the following conditions:




     (i) (A) the Indenture Trustee, to the extent that its rights or obligations would be
affected by such amendment consents (which consent may not be unreasonably withheld, delayed
or conditioned) and (B) the Noteholders of a majority of the Note Balance of each Class of
Notes Outstanding consent to such amendment (with each affected Class voting separately,
except that all Noteholders of Class A Notes will vote together as a single class);




     (ii) such holder delivers an Opinion of Counsel to the Indenture Trustee and the Owner
Trustee to the effect that such amendment will not (A) cause any Note to be
deemed sold or exchanged for purposes of Section 1001 of the Code, (B) cause the Issuer
to be treated as an association or publicly traded partnership taxable as a corporation for
U.S. federal income tax purposes, or (C) adversely affect the treatment of the Notes as debt
for U.S. federal income tax purposes; and




     (iii) such holder either delivers to the Indenture Trustee and the Owner Trustee (A) an
Opinion of Counsel to the effect that, after giving effect to such amendment, there will be
no withholding imposed under Sections 1441 or 1442 of the Code in respect of payments on any
additional security as a result of such amendment or that the withholding tax imposed will
be no greater than the withholding tax imposed prior to such amendment or (B) an Officer’s
Certificate that states withholding is applicable to payments on any such additional
securities, the rate of withholding tax required on such amounts, and that such withheld
amounts are required to be remitted to the Internal Revenue Service in satisfaction of the
requirements of Sections 1441 and 1442 of the Code.



     However, no amendment may (A) increase or reduce the amount of, or accelerate or delay the
timing of, or change the allocation or priority of, collections of payments on Receivables or
distributions that are required to be made for the benefit of the Secured Parties or (B) reduce the
percentage of the Note Balance of the Notes Outstanding required to consent to any such amendment,
in each case, without the consent of all affected Noteholders.



     (d) Promptly after the execution of any such amendment or consent, the Owner Trustee will
notify the Indenture Trustee of the substance of such amendment or consent.



     (e) If the consent of the Noteholders or the Indenture Trustee is required under this Section
10.1, they do not need to approve the particular form of any proposed amendment or consent so long
as their consent approves the substance of the proposed amendment or consent.



24









 







The manner of obtaining such consents will be subject to such reasonable requirements as the Owner Trustee may
prescribe.



     (f) Promptly after the execution of any certificate of amendment to the Certificate of Trust,
the Owner Trustee will cause such amendment to be filed with the Secretary of State of the State of
Delaware. The Owner Trustee will deliver a file-stamped copy of such certificate of amendment to
the Administrator promptly upon such document becoming available following such filing.



     (g) Before the execution of any amendment to this Agreement or certificate of amendment to the
Certificate of Trust, the Owner Trustee will be entitled to receive and rely upon an Opinion of
Counsel delivered by the holder of the Residual Interest to the effect that the execution of such
amendment or certificate of amendment, as applicable, is authorized or permitted by this Agreement.
The Owner Trustee may enter into any such amendment or certificate of amendment that affects the
Owner Trustee’s own rights, duties or immunities under this Agreement or otherwise.



     (h) In connection with the execution of any amendment to this Agreement or any amendment to
any other agreement to which the Issuer is a party, the Owner Trustee will be entitled to receive and rely upon an Opinion of Counsel delivered by the holder of the
Residual Interest to the effect that such amendment is authorized or permitted by the Transaction
Documents and that all conditions precedent in the Transaction Documents for the execution and
delivery thereof by the Issuer or the Owner Trustee, as the case may be, have been satisfied.




     Section 10.2. No Legal Title to Trust Property in the Holder of the Residual Interest.
The holder of the Residual Interest has no legal title to any part of the Trust Property. The
holder of the Residual Interest is entitled to receive distributions with respect to its Residual
Interest only in accordance with Article VIII of the Indenture. No transfer, by operation of law
or otherwise, of any right, title, or interest of the Depositor to and in the Residual Interest in
the Trust Property will operate to terminate this Agreement or the trusts under this Agreement or
entitle any transferee to an accounting or to the transfer to it of legal title to any part of the
Trust Property.



     Section 10.3. Limitation on Rights of Others. Except for Sections 2.6, 7.2 and 10.1,
this Agreement is solely for the benefit of the Owner Trustee, the Depositor, the Administrator,
the Servicer, the holder of the Residual Interest and, to the extent provided in this Agreement,
the Indenture Trustee and the Secured Parties, and nothing in this Agreement (other than Section
2.6), whether express or implied, will be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Property or under or in respect of this Agreement or
any covenants, conditions or provisions contained in this Agreement.



     Section 10.4. Notices.



     (a) All notices, requests, demands, consents, waivers or other communications to or from the
parties to this Agreement must be in writing and will be deemed to have been given and made:



25









 






     (i) upon delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, three days after deposit in the mail;




     (ii) in the case of a fax, when receipt is confirmed by telephone, reply email or reply
fax from the recipient;




     (iii) in the case of an email, when receipt is confirmed by telephone or reply email
from the recipient; and




     (iv) in the case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery (without the requirement of confirmation
of receipt) of an email to such recipient stating that such electronic posting has occurred.



     Any such notice, request, demand, consent or other communication must be delivered or
addressed as set forth on Schedule B to the Sale and Servicing Agreement or at such other address
as any party may designate by notice to the other parties.



     (b) Notices to the Owner Trustee will be addressed to its Corporate Trust Office or to such
other address designated by the Owner Trustee by notice to the Depositor.



     (c) Any notice required or permitted to be mailed to a Noteholder (i) in the case of
Definitive Notes, must be sent by overnight delivery, mailed by registered first class mail,
postage prepaid, or sent by fax, to the address of such Person as shown in the Note Register or
(ii) in the case of Book-Entry Notes, must be delivered pursuant to the applicable procedures of
the Clearing Agency. Any notice so mailed within the time prescribed in this Agreement will be
conclusively presumed to have been properly given, whether or not the Noteholder receives such
notice.



     Section 10.5. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.



     Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.



     Section 10.7. Severability. If any of the covenants, agreements or terms of this
Agreement is held invalid, illegal or unenforceable, then it will be deemed severable from the
remaining covenants, agreements or terms of this Agreement and will in no way affect the validity,
legality or enforceability of the remaining Agreement or of the Notes or the rights of the
Noteholders.



     Section 10.8. Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart will be an original, and all counterparts will together constitute
one and the same instrument.



26









 





     Section 10.9. Headings. The headings in this Agreement are included for convenience
only and will not affect the meaning or interpretation of this Agreement.



     Section 10.10. No Petition. The Owner Trustee (not in its individual capacity but solely as Owner Trustee), by entering
into this Agreement, covenants and agrees that, before the date that is one year and one day (or,
if longer, any applicable preference period) after the payment in full of (a) all securities issued
by the Depositor or by a trust for which the Depositor was a depositor or (b) the Notes, it will
not institute against, or join any other Person in instituting against, the Depositor or the
Issuer, respectively, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, this Agreement or any of the Transaction Documents.
This Section 10.10 will survive the resignation or removal of the Owner Trustee under this
Agreement and the termination of this Agreement.



[Remainder of Page Intentionally Left Blank]








27









 







EXECUTED BY:




	 	 	 	 	 
	 	FORD CREDIT AUTO RECEIVABLES TWO LLC,

     as Depositor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

     as Owner Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 













 






	 	 	 	 	 



Exhibit A




Form of Certificate of Trust of

Ford Credit Auto Owner Trust 2011-B





     This Certificate of Trust of FORD CREDIT AUTO OWNER TRUST 2011-B (the “Trust”), dated
as of ________, 2011 (this “Certificate of Trust”), is being duly executed and filed by
U.S. Bank Trust National Association, a national banking association, as owner trustee (the
“Owner Trustee”), to form a statutory trust under the Delaware Statutory Trust Act (12
Delaware Code, § 3801 et seq.) (the “Act”).




     1. Name. The name of the statutory trust formed hereby is “Ford Credit Auto
Owner Trust 2011-B”.




     2. Owner Trustee. The name and business address of the sole trustee of the
Trust in the State of Delaware is U.S. Bank Trust National Association, Corporate Trust
Services, 300 Delaware Avenue, 9th Floor, Wilmington, Delaware 19801.




     3. Effective Date. This Certificate of Trust will be effective upon filing.



     IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has executed this
Certificate of Trust as of the date first above written in accordance with Section 3811(a)(1) of
the Act.



	 	 	 	 	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

not in its individual capacity but solely as Owner
Trustee

 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-1