INDENTURE between FORD CREDIT AUTO OWNER TRUST 2007-B, as Issuer and THE BANK OF NEW YORK, as Indenture Trustee Dated as of October 1, 2007
Exhibit
4.1
between
as
Issuer
and
THE
BANK
OF NEW YORK,
as
Indenture Trustee
Dated
as
of October 1, 2007
TABLE
OF CONTENTS
ARTICLE
I USAGE, DEFINITIONS AND INCORPORATION BY REFERENCE
|
||
Section
1.1
|
Usage,
Definitions and Incorporation by Reference.
|
1
|
Section
1.2
|
Incorporation
by Reference of Trust Indenture Act.
|
1
|
ARTICLE
II THE NOTES
|
||
Section
2.1
|
Form.
|
2
|
Section
2.2
|
Execution,
Authentication and Delivery.
|
2
|
Section
2.3
|
Tax
Treatment.
|
3
|
Section
2.4
|
Registration;
Registration of Transfer and Exchange.
|
3
|
Section
2.5
|
Mutilated,
Destroyed, Lost or Stolen Notes.
|
7
|
Section
2.6
|
Persons
Deemed Owners.
|
8
|
Section
2.7
|
Payment
of Principal and Interest..
|
8
|
Section
2.8
|
Cancellation.
|
9
|
Section
2.9
|
Release
of Collateral.
|
9
|
Section
2.10
|
Book-Entry
Notes.
|
9
|
Section
2.11
|
Definitive
Notes.
|
10
|
Section
2.12
|
Authenticating
Agents.
|
10
|
Section
2.13
|
Note
Paying Agents.
|
11
|
ARTICLE
III COVENANTS AND REPRESENTATIONS
|
||
Section
3.1
|
Payment
of Principal and Interest.
|
11
|
Section
3.2
|
Maintenance
of Office or Agency.
|
11
|
Section
3.3
|
Money
for Payments To Be Held in Trust.
|
11
|
Section
3.4
|
Existence.
|
13
|
Section
3.5
|
Protection
of Collateral.
|
13
|
Section
3.6
|
Performance
of Obligations; Servicing of Receivables.
|
13
|
Section
3.7
|
Negative
Covenants.
|
14
|
Section
3.8
|
Opinions
as to Collateral.
|
15
|
Section
3.9
|
Annual
Statement as to Compliance
|
15
|
Section
3.10
|
Consolidation
and Merger; Sale of Assets
|
15
|
Section
3.11
|
Successor
or Transferee.
|
16
|
Section
3.12
|
No
Other Activities.
|
16
|
Section
3.13
|
Further
Instruments and Acts.
|
16
|
Section
3.14
|
Restricted
Payments.
|
16
|
Section
3.15
|
Notice
of Events of Default.
|
17
|
Section
3.16
|
Representations
and Warranties of the Issuer as to Security Interest
|
17
|
Section
3.17
|
Audits
of the Issuer.
|
18
|
Section
3.18
|
Representations
and Warranties of the Issuer
|
18
|
Section
3.19
|
Calculation
Agent
|
19
|
i
ARTICLE
IV SATISFACTION AND DISCHARGE
|
||
Section
4.1
|
Satisfaction
and Discharge of Indenture.
|
19
|
ARTICLE
V REMEDIES
|
||
Section
5.1
|
Events
of Default.
|
20
|
Section
5.2
|
Acceleration
of Maturity; Rescission and Annulment.
|
20
|
Section
5.3
|
Collection
of Indebtedness by the Indenture Trustee.
|
21
|
Section
5.4
|
Trustee
May File Proofs of Claim.
|
21
|
Section
5.5
|
Trustee
May Enforce Claims Without Possession of Notes.
|
22
|
Section
5.6
|
Remedies;
Priorities.
|
22
|
Section
5.7
|
Optional
Preservation of the Collateral
|
24
|
Section
5.8
|
Limitation
of Suits.
|
24
|
Section
5.9
|
Unconditional
Rights of Noteholders To Receive Principal and Interest.
|
24
|
Section
5.10
|
Restoration
of Rights and Remedies.
|
25
|
Section
5.11
|
Rights
and Remedies Cumulative.
|
25
|
Section
5.12
|
Delay
or Omission Not a Waiver.
|
25
|
Section
5.13
|
Control
by Controlling Class of Noteholders.
|
25
|
Section
5.14
|
Waiver
of Defaults and Events of Default.
|
26
|
Section
5.15
|
Undertaking
for Costs.
|
26
|
Section
5.16
|
Waiver
of Stay or Extension Laws.
|
26
|
Section
5.17
|
Performance
and Enforcement of Certain Obligations.
|
26
|
ARTICLE
VI THE INDENTURE TRUSTEE
|
||
Section
6.1
|
Duties
of Indenture Trustee.
|
27
|
Section
6.2
|
Rights
of Indenture Trustee.
|
28
|
Section
6.3
|
Individual
Rights of Indenture Trustee.
|
29
|
Section
6.4
|
Indenture
Trustee's Disclaimer.
|
29
|
Section
6.5
|
Notice
of Defaults.
|
29
|
Section
6.6
|
Reports
by Indenture Trustee.
|
29
|
Section
6.7
|
Compensation
and Indemnity.
|
30
|
Section
6.8
|
Replacement
of Indenture Trustee.
|
31
|
Section
6.9
|
Successor
Indenture Trustee by Merger.
|
32
|
Section
6.10
|
Appointment
of Separate Indenture Trustee or Co-Indenture Trustee.
|
33
|
Section
6.11
|
Eligibility;
Disqualification.
|
33
|
Section
6.12
|
Preferential
Collection of Claims Against Issuer.
|
34
|
Section
6.13
|
Audits
of the Indenture Trustee.
|
34
|
Section
6.14
|
Representations
and Warranties of the Indenture Trustee
|
35
|
Section
6.15
|
Duty
to Update Disclosure
|
36
|
ARTICLE
VII NOTEHOLDERS' LISTS AND REPORTS
|
||
Section
7.1
|
Names
and Addresses of Noteholders.
|
36
|
Section
7.2
|
Preservation
of Information; Communications to Noteholders.
|
36
|
Section
7.3
|
Reports
by Issuer.
|
37
|
ii
Section
7.4
|
Reports
by Indenture Trustee.
|
37
|
ARTICLE
VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
|
||
Section
8.1
|
Collection
of Money
|
37
|
Section
8.2
|
Trust
Accounts; Distributions and Disbursements.
|
38
|
Section
8.3
|
General
Provisions Regarding Bank Accounts.
|
41
|
Section
8.4
|
Release
of Collateral.
|
42
|
ARTICLE
IX SUPPLEMENTAL INDENTURES
|
||
Section
9.1
|
Supplemental
Indentures Without Consent of Noteholders.
|
43
|
Section
9.2
|
Supplemental
Indentures with Consent of Noteholders.
|
44
|
Section
9.3
|
Execution
of Supplemental Indentures.
|
45
|
Section
9.4
|
Effect
of Supplemental Indenture.
|
45
|
Section
9.5
|
Conformity
with Trust Indenture Act.
|
45
|
Section
9.6
|
Reference
in Notes to Supplemental Indentures.
|
46
|
ARTICLE
X REDEMPTION OF NOTES
|
||
Section
10.1
|
Redemption.
|
46
|
ARTICLE
XI MISCELLANEOUS
|
||
Section
11.1
|
Compliance
Certificates and Opinions, etc.
|
47
|
Section
11.2
|
Form
of Documents Delivered to Indenture Trustee.
|
48
|
Section
11.3
|
Acts
of Noteholders.
|
48
|
Section
11.4
|
Notices,
etc., to Indenture Trustee, Issuer and Rating Agencies.
|
49
|
Section
11.5
|
Notices
to Noteholders; Waiver.
|
49
|
Section
11.6
|
Conflict
with Trust Indenture Act.
|
50
|
Section
11.7
|
Benefits
of Indenture.
|
50
|
Section
11.8
|
GOVERNING
LAW.
|
50
|
Section
11.9
|
Submission
to Jurisdiction.
|
50
|
Section
11.10
|
WAIVER
OF JURY TRIAL.
|
51
|
Section
11.11
|
Severability.
|
51
|
Section
11.12
|
Counterparts.
|
51
|
Section
11.13
|
Headings.
|
51
|
Section
11.14
|
Recording
of Indenture.
|
51
|
Section
11.15
|
Trust
Obligation.
|
51
|
Section
11.16
|
Subordination
of Claims against the Depositor.
|
51
|
Section
11.17
|
No
Petition.
|
52
|
iii
EXHIBIT
A-1
|
FORM
OF CLASS A-1 NOTE
|
A-1-1
|
|
EXHIBIT
A-2a
|
FORM
OF CLASS A-2a NOTE
|
A-2a-1
|
|
EXHIBIT
A-2b
|
FORM
OF CLASS A-2b NOTE
|
A-2b-1
|
|
EXHIBIT
A-3a
|
FORM
OF CLASS A-3a NOTE
|
A-3a-1
|
|
EXHIBIT
A-3b
|
FORM
OF CLASS A-3b NOTE
|
A-3b-1
|
|
EXHIBIT
A-4a
|
FORM
OF CLASS A-4a NOTE
|
A-4a-1
|
|
EXHIBIT
A-4b
|
FORM
OF CLASS X-0x XXXX
|
X-0x-0
|
|
XXXXXXX
X
|
FORM
OF CLASS B NOTE
|
B-1
|
|
EXHIBIT
C
|
FORM
OF CLASS C NOTE
|
C-1
|
|
EXHIBIT
D
|
FORM
OF CLASS D NOTE
|
D-1
|
|
EXHIBIT
E
|
FORM
OF INVESTMENT LETTER: CLASS D NOTES
|
E-1
|
|
SCHEDULE
A
|
Schedule
of Receivables
|
SA-1
|
iv
CROSS
REFERENCE TABLE1
TIA
Section
|
Indenture
Section
|
|
310
(a)(1)
|
6.11
|
|
(a)(2)
|
6.11
|
|
(a)(3)
|
6.10
|
|
(a)(4)
|
N.A.2
|
|
(a)(5)
|
6.11
|
|
(b)
|
6.8;
6.11
|
|
(c)
|
N.A.
|
|
311
(a)
|
6.12
|
|
(b)
|
6.12
|
|
(c)
|
N.A.
|
|
312
(a)
|
7.1;
7.2
|
|
(b)
|
7.2
|
|
(c)
|
7.2
|
|
313
(a)
|
. 7.4
|
|
(b)
|
7.4
|
|
(c)
|
7.4
|
|
(d)
|
7.4
|
|
314
(a)
|
3.9,
7.3
|
|
(b)
|
3.8,
11.13
|
|
(c)(1)
|
11.1
|
|
(c)(2)
|
11.1
|
|
(c)(3)
|
11.1
|
|
(d)
|
11.1
|
|
(e)
|
11.1
|
|
315
(a)
|
6.1
|
|
(b)
|
6.5
|
|
(c)
|
6.1
|
|
(d)
|
6.1
|
|
(e)
|
5.15
|
|
316
(a)(1)(A)
|
5.13
|
|
(a)(1)(B)
|
5.14
|
|
(a)(2)
|
N.A.
|
|
(b)
|
5.9
|
|
(c)
|
N.A
|
|
317
(a)(1)
|
5.4
|
|
(a)(2)
|
5.4
|
|
(b)
|
3.3
|
|
318
(a)
|
11.6
|
_______________________
1
|
Note: This
Cross Reference Table is not deemed, for any purpose, to be part
of this
Indenture.
|
2
|
N.A.
means Not Applicable.
|
v
INDENTURE,
dated as of October 1, 2007 (this "Indenture"), between FORD CREDIT AUTO
OWNER TRUST 2007-B, a Delaware statutory trust, as Issuer, and THE BANK OF
NEW
YORK, a New York banking corporation, as Indenture Trustee for the benefit
of
the Secured Parties.
Each
party agrees as follows for the benefit of the other party and for the equal
and
ratable benefit of the Secured Parties.
GRANTING
CLAUSE
The
Issuer Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee
for the benefit of the Secured Parties, all of the Issuer's right, title and
interest in, to and under, whether now owned or hereafter acquired, the
Collateral.
The
foregoing Grant is made in trust to secure (a) the payment of principal of,
interest on and any other amounts owing in respect of the Notes as provided
in
this Indenture and (b) compliance by the Issuer with the provisions of this
Indenture and the Interest Rate Swaps for the benefit of the Secured
Parties.
The
Indenture Trustee acknowledges such Grant, accepts the trusts under this
Indenture in accordance with this Indenture and agrees to perform the duties
required in this Indenture to the best of its ability to protect the interests
of the Secured Parties.
ARTICLE
I
USAGE,
DEFINITIONS AND INCORPORATION BY REFERENCE
Section
1.1 Usage,
Definitions and Incorporation
by Reference. Capitalized
terms used but
not otherwise defined in this Indenture are defined in Appendix A to the
Sale
and Servicing
Agreement. Appendix A also contains rules as to usage applicable to
this Indenture. Appendix A is incorporated by reference into this
Indenture.
Section
1.2 Incorporation
by Reference of Trust
Indenture Act. Whenever
this Indenture refers to a
provision of the TIA,
the provision is incorporated by
reference in and made a part of this Indenture. The following TIA
terms used in this Indenture have the following meanings:
"indenture
securities" means the Notes.
"indenture
security holder" means a Noteholder.
"indenture
to be qualified" means this Indenture.
"indenture
trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor"
on the indenture securities means the Issuer and any other obligor on the
indenture securities.
All
other
TIA terms used in this Indenture that are defined in the TIA, defined by TIA
reference to another statute or defined by Securities and Exchange Commission
rule have the meaning assigned to them by such definitions.
1
ARTICLE
II
THE
NOTES
Section
2.1 Form.
(a) Each
Class of Notes, together with the Indenture Trustee's certificates of
authentication, will be in substantially the form set forth in the related
Exhibit with such variations as are required or permitted by this
Indenture. The Notes may have such marks of identification and such
legends or endorsements placed on them as may be determined, consistent with
this Indenture, by the officers executing such Notes, as evidenced by their
execution of such Notes. The physical Notes will be produced by any
method as determined by the officers executing such Notes, as evidenced by
their
execution of such Notes.
(b) Each
Note will be dated the date of its authentication. The terms of
the Notes set forth in Exhibit X-0, Xxxxxxx X-0x, Exhibit X-0x, Xxxxxxx X-0x,
Xxxxxxx X-0x, Xxxxxxx A-4a, Exhibit A-4b, Exhibit B, Exhibit C and Exhibit
D are
part of this Indenture and are incorporated into this Indenture by
reference.
Section
2.2 Execution,
Authentication and Delivery.
(a) A
Responsible Person of the Issuer will execute the Notes on behalf of the
Issuer. The signature of such Responsible Person on the Notes may be
manual or facsimile. Notes bearing the manual or facsimile signature
of an individual who was a Responsible Person of the Issuer will bind the
Issuer, notwithstanding that such individual has ceased to hold such office
before the authentication and delivery of such Notes or did not hold such office
at the date of issuance of such Notes.
(b) The
Indenture Trustee will, upon Issuer Order, authenticate and deliver the Notes
for original issue in the Classes, Note Interest Rates and initial Note Balances
as set forth below.
Class
|
Note
Interest Rate
|
Initial
Note Balance
|
Class
A-1 Notes
|
5.29180%
|
$771,000,000
|
Class
A-2a Notes
|
5.26%
|
$200,000,000
|
Class
A-2b Notes
|
one-month
LIBOR + 0.33%
|
$863,700,000
|
Class
A-3a Notes
|
5.15%
|
$410,500,000
|
Class
A-3b Notes
|
one-month
LIBOR + 0.34%
|
$400,000,000
|
Class
A-4a Notes
|
5.24%
|
$173,100,000
|
Class
A-4b Notes
|
one-month
LIBOR + 0.38%
|
$80,000,000
|
Class
B Notes
|
5.69%
|
$91,600,000
|
Class
C Notes
|
6.33%
|
$61,000,000
|
Class
D Notes
|
7.79%
|
$61,000,000
|
(c) The
Notes (other than the Class C Notes and the Class D Notes) will be issuable
as
Book-Entry Notes. The Class C Notes and the Class D Notes will be
issuable as Definitive Notes. The Notes (other than the Class A-1
Notes, the Class C Notes and the Class D Notes) will be issuable in minimum
denominations of $100,000 and in multiples of $1,000 in excess
thereof. The Class A-1 Notes, the Class C Notes and the Class D
Notes will be issuable in minimum denominations of $250,000 and in multiples
of
$1,000 in excess thereof.
(d) No
Note will be entitled to any benefit under this Indenture or be valid for any
purpose, unless it bears a certificate of authentication substantially in the
form provided for in this Indenture executed by the Indenture Trustee by the
manual signature of one of its authorized signatories, and such certificate
upon
any Note will be conclusive evidence, and the only evidence, that such Note
has
been duly authenticated and delivered under this Indenture.
2
Section
2.3 Tax
Treatment. The
Issuer intends that Notes that are owned or beneficially owned by a Person
other
than Ford Credit or its Affiliates will be indebtedness of the Issuer, secured
by the Collateral, for U.S. federal, State and local income, single business
and
franchise tax purposes. The Issuer, by entering into this Indenture,
and each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of an interest in the applicable Book-Entry Note), agree to treat
the
Notes for U.S. federal, State and local income, single business and franchise
tax purposes as indebtedness of the Issuer.
Section
2.4 Registration;
Registration of Transfer and Exchange.
(a) The
Issuer appoints the Indenture Trustee to be the "Note Registrar" and to
keep a register (the "Note Register") for the purpose of registering
Notes and transfers of Notes as provided in this Indenture. Upon any
resignation of the Note Registrar, the Issuer will promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar. If the Issuer appoints a Person other than the Indenture
Trustee as Note Registrar, (i) the Issuer will notify the Indenture Trustee
of
such appointment, (ii) the Indenture Trustee will have the right to inspect
the
Note Register at all reasonable times and to obtain copies of the Note Register
and (iii) the Indenture Trustee will have the right to rely upon a certificate
executed by an officer of the Note Registrar as to the names and addresses
of
the Noteholders and the principal amounts and number of the Notes.
(b) Upon
surrender for registration of transfer of any Note at the office or agency
of
the Issuer maintained under Section 3.2, if the requirements of Section 8-401(a)
of the UCC are met, the Issuer will execute, the Indenture Trustee will
authenticate and the Noteholder will obtain from the Indenture Trustee, in
the
name of the designated transferee or transferees, one or more new Notes of
the
same Class, in any authorized denomination, in the same aggregate principal
amount.
(c) A
Noteholder may exchange Notes for other Notes of the same Class, in any
authorized denominations, in the same aggregate principal amount, by
surrendering the Notes to be exchanged at the office or agency of the Issuer
maintained under Section 3.2. If the requirements of Section 8-401(a)
of the UCC are met, the Issuer will execute, the Indenture Trustee will
authenticate and the Noteholder will obtain from the Indenture Trustee the
Notes
that the Noteholder making such exchange is entitled to receive.
(d) All
Notes issued upon any registration of transfer or exchange of Notes will be
the
valid obligations of the Issuer, evidencing the same debt, and entitled to
the
same benefits under this Indenture as the Notes surrendered upon such
registration of transfer or exchange.
(e) Every
Note presented or surrendered for registration of transfer or exchange will
be
(i) duly endorsed by, or be accompanied by a written instrument of transfer
in
form satisfactory to the Note Registrar or the Indenture Trustee duly executed
by, the Noteholder of such Note or such Noteholder's attorney duly authorized
in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, the Securities Transfer Agents
Medallion Program, all in accordance with the Exchange Act, and (ii) accompanied
by such other documents as the Indenture Trustee may require.
(f) None
of the Issuer, the Note Registrar or the Indenture Trustee will impose a service
charge on a Noteholder for any registration of transfer or exchange of
Notes. The Issuer, the Note Registrar or the Indenture Trustee may
require such Noteholder to pay an amount sufficient to cover any tax or other
governmental charge that may be imposed in connection with such registration
of
transfer or exchange of the Notes.
3
(g) Neither
the Issuer nor the Note Registrar will be required to register transfers or
exchanges of Notes selected for redemption or Notes whose next Payment Date
is
not more than 15 days after the requested date of such transfer or
exchange.
(h) Neither
the Class A-1 Notes, the Class C Notes nor the Class D Notes have been
registered under the Securities Act or any state securities law. None
of the Issuer, the Note Registrar or the Indenture Trustee is obligated to
register the Class A-1 Notes, the Class C Notes or the Class D Notes under
the
Securities Act or any other securities or "blue sky" laws or to take any other
action not otherwise required under this Indenture or the Trust Agreement to
permit the transfer of any Class A-1 Note, Class C Note or Class D Note without
registration.
(i) No
Class A-1 Note, Class C Note or Class D Note may be sold, transferred, assigned,
participated, pledged, or otherwise disposed of (any such act, a "Class A-1
Note Transfer," a "Class C Note Transfer," or a "Class D Note
Transfer," respectively) to any Person except in accordance with the
provisions of this Section 2.4, and any attempted Class A-1 Note Transfer,
Class
C Note Transfer or Class D Note Transfer in violation of this Section 2.4 will
be null and void (each a "Void Class A-1 Note Transfer," a "Void Class
C Note Transfer," or a "Void Class D Note Transfer,"
respectively).
(j) Each
Class A-1 Note will bear a legend to the effect of the legend contained in
Exhibit A-1 unless determined otherwise by the Administrator (as certified
to
the Indenture Trustee in an Officer's Certificate) consistent with applicable
law.
As
a
condition to the registration of any Class A-1 Note Transfer, the prospective
transferee of such Class A-1 Note will be deemed to represent to the Indenture
Trustee, the Note Registrar and the Issuer the following:
(i) It
understands that the Class A-1 Notes have not been and will not be registered
under the Securities Act or any state or other applicable securities or "blue
sky" law.
(ii) It
understands that Class A-1 Note Transfers are only permitted if made in
compliance with the Securities Act and other applicable laws and only to a
person that the holder reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act (a
"QIB").
(iii) It
(A) is a QIB, (B) is aware that the sale to it is being made in reliance on
Rule
144A under the Securities Act and if it is acquiring such Class A-1 Notes or
any
interest or participation in the Class A-1 Notes for the account of another
QIB,
such other QIB is aware that the sale is being made in reliance on Rule 144A
under the Securities Act and (C) is acquiring such Class A-1 Notes or any
interest or participation in the Class A-1 Notes for its own account or for
the
account of another QIB.
(iv) It
is purchasing the Class A-1 Notes for its own account or for one or more
investor accounts for which it is acting as fiduciary or agent, in each case
for
investment, and not with a view to offer, transfer, assign, participate, pledge
or otherwise dispose of such Class A-1 Notes in connection with any distribution
of such Class A-1 Notes that would violate the Securities Act.
4
(k) Each
Class C Note will bear a legend to the effect of the legend contained in Exhibit
C unless determined otherwise by the Administrator (as certified to the
Indenture Trustee in an Officer's Certificate) consistent with applicable
law.
As
a
condition to the registration of any Class C Note Transfer, the prospective
transferee of such Class C Note will be deemed to represent to the Indenture
Trustee, the Note Registrar and the Issuer the following:
(i) It
understands that the Class C Notes have not been and will not be registered
under the Securities Act or any state or other applicable securities or "blue
sky" law.
(ii) It
understands that Class C Note Transfers are only permitted if made in compliance
with the Securities Act and other applicable laws and only to a person that
the
holder reasonably believes is a QIB.
(iii) It
(A) is a QIB, (B) is aware that the sale to it is being made in reliance on
Rule
144A under the Securities Act and if it is acquiring such Class C Notes or
any
interest or participation in the Class C Notes for the account of another QIB,
such other QIB is aware that the sale is being made in reliance on Rule 144A
under the Securities Act and (C) is acquiring such Class C Notes or any interest
or participation in the Class C Notes for its own account or for the account
of
another QIB.
(iv) It
is purchasing the Class C Notes for its own account or for one or more investor
accounts for which it is acting as fiduciary or agent, in each case for
investment, and not with a view to offer, transfer, assign, participate, pledge
or otherwise dispose of such Class C Notes in connection with any distribution
of such Class C Notes that would violate the Securities Act.
(l) Each
Class D Note will bear a legend to the effect of the legend contained in Exhibit
D unless determined otherwise by the Administrator (as certified to the
Indenture Trustee in an Officer's Certificate) consistent with applicable
law.
As
a
condition to the registration of any Class D Note Transfer, the prospective
transferee of such Class D Note will be required to represent in writing to
the
Depositor, the Note Registrar and the Issuer the following, unless determined
otherwise by the Administrator (as certified to the Indenture Trustee in an
Officer's Certificate):
(i) It
understands that no subsequent Class D Note Transfer is permitted unless it
causes its proposed transferee to provide to the Issuer, the Note Registrar
and
the Depositor a letter substantially in the form of Exhibit E hereof (with
such
changes therein as may be approved by the Depositor), as applicable, or such
other written statement as the Depositor will prescribe.
(ii) It
is either:
(1) not,
and each account (if any) for which it is purchasing the Class D Notes is not
(a) an employee benefit plan, as defined in Section 3(3) of ERISA, subject
to
Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code subject
to Section 4975 of the Code, or (c) 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 (the "Plan Assets
Regulation") or otherwise under ERISA), with each of (a) through (c) in this
subsection (1) being a "Benefit Plan Investor"; or
5
(2) an
insurance company acting on behalf of a general account and (a) on the date
of
purchase less than 25% (or such lower percentage as may be determined by the
Depositor) of the assets of such general account (as reasonably determined
by
it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975
of the Code, (b) the purchase and holding of such Class D Notes are eligible
for
exemptive relief under Section (I) of Prohibited Transaction Class Exemption
95-60, (c) the purchaser agrees that if, after the purchaser's initial
acquisition of the Class D Notes, at any time during any calendar quarter 25%
(or such lower percentage as may be determined by the Depositor) or more of
the
assets of such general account (as reasonably determined by it no less
frequently than each calendar quarter) constitute "plan assets" for purposes
of
Title I of ERISA or Section 4975 of the Code and the Depositor so requests,
it
will dispose of all Class D Notes then held in its general account by the end
of
the next following calendar quarter and (d) is not a person, other than a
Benefit Plan Investor, who has discretionary authority or control with respect
to the assets of the Issuer or any person who provides investment advice for
a
fee (direct or indirect) with respect to such assets or any affiliate (as
defined in the Plan Assets Regulation) of such person.
(iii) It
is a person who is (A) a citizen or resident of the United States, (B) a
corporation or partnership organized in or under the laws of the United States
or any State thereof (including the District of Columbia), (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, (D) a trust if a U.S. court is able to exercise
primary supervision over the administration of such trust and one or more
persons described in clause (A), (B), (C) or (E) of this paragraph (iii) has
the
authority to control all substantial decisions of the trust or (E) a person
not
described in clauses (A) through (D) of this paragraph (iii) whose ownership
of
the Class D Notes is effectively connected with such persons conduct of a trade
or business within the United States (within the meaning of the Code) and who
provides the Issuer and the Depositor with an IRS Form W-8ECI (and such other
certifications, representations, or opinions of counsel as may be requested
by
the Issuer or the Depositor).
(iv) It
understands that any purported Class D Note Transfer in contravention of any
of
the restrictions and conditions contained in this Section will be a Void Class
D
Note Transfer, and the purported transferee in a Void Class D Note Transfer
will
not be recognized by the Issuer or any other person as a Class D Noteholder,
for
any purpose.
(m) By
acceptance of any Class A-1 Note, Class C Note or Class D Note, the Class A-1
Noteholder, the Class C Noteholder or the Class D Noteholder, as applicable,
specifically agrees with and represents to the Depositor, the Issuer and the
Note Registrar, that no transfer of a Class A-1 Note, Class C Note or Class
D
Note, respectively, will be made unless the registration requirements of the
Securities Act and any applicable State securities laws are complied with and
(A) such transfer of a Class A-1 Note, Class C Note or Class D Note, as
applicable, is to the Depositor or its Affiliates, or (B) such transfer of
a
Class A-1 Note, Class C Note or Class D Note, as applicable, is exempt from
the
registration requirements under the Securities Act because such Class A-1 Note
Transfer, Class C Note Transfer or Class D Note Transfer, as applicable, is
in
compliance with Rule 144A under the Securities Act, to a transferee who the
transferor reasonably believes is a Qualified Institutional Buyer (as defined
in
the Securities Act) that is purchasing for its own account or for the account
of
a Qualified Institutional Buyer and to whom notice is given that such Class
A-1
Note Transfer, Class C Note Transfer or Class D Note Transfer, as applicable,
is
being made in reliance upon Rule 144A under the Securities Act. With
respect to any Class D Note Transfer the transferee is required to execute
and
deliver to the Indenture Trustee, the Issuer and the Note Registrar an
investment letter substantially in the form attached as Exhibit
E.
6
(n) The
Depositor will make available to the prospective transferor and transferee
of a
Class A-1 Note, Class C Note or Class D Note information requested to satisfy
the requirements of paragraph (d) (4) of Rule 144A (the "Rule 144A
Information"). The Rule 144A Information will include any or all of the
following items requested by the prospective transferee:
(i) the
offering memorandum relating to the Class A-1 Notes, Class C Notes (if any)
or
Class D Notes (if any), as applicable, and any amendments or supplements to
such
offering memorandum;
(ii) the
Monthly Investor Report for each Payment Date preceding such request;
and
(iii) such
other information as is reasonably available to the Indenture Trustee in order
to comply with requests for information pursuant to Rule 144A under the
Securities Act.
(o) Any
Noteholder that purchases and holds the Class A Notes, the Class B Notes or
the
Class C Notes will be deemed to have represented that its purchase and holding
of such Notes does not and will not constitute a non-exempt prohibited
transaction under ERISA or the Code.
Section
2.5 Mutilated, Destroyed,
Lost or Stolen Notes.
(a) If
a mutilated Note is surrendered to the Indenture Trustee or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of a Note, then the Issuer will execute and, upon Issuer Request, the Indenture
Trustee will authenticate and deliver a replacement Note of the same Class
and
principal amount in exchange for or in lieu of such Note so long as (i) the
Indenture Trustee receives such security or indemnity as may be required by
it
to hold the Issuer and the Indenture Trustee harmless, (ii) none of the Issuer,
the Note Registrar or the Indenture Trustee have received notice that such
Note
has been acquired by a protected purchaser, as defined in Section 8-303 of
the
UCC and (iii) the requirements of Section 8-405 of the UCC are
met. However, if any such destroyed, lost or stolen Note (but not a
mutilated Note) is due and payable within 15 days or has been called for
redemption, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Redemption
Date without surrender of such Note. If a protected purchaser of the
original Note in lieu of which such replacement Note was issued (or such payment
made) presents for payment such original Note, the Issuer and the Indenture
Trustee will be entitled to recover such replacement Note (or such payment)
from
the Person to whom it was delivered or any Person taking such replacement Note
(or such payment) from such Person to whom such replacement Note (or such
payment) was delivered or any assignee of such Person, except a protected
purchaser, and will be entitled to recover upon the security or indemnity
provided for such replacement Note (or such payment) for any cost, expense,
loss, damage, claim or liability incurred by the Issuer or the Indenture Trustee
in connection with such replacement Note (or such payment).
(b) Upon
the issuance of any replacement Note under Section 2.5(a), the Issuer may
require the Noteholder of such Note to pay an amount sufficient to cover any
tax
or other governmental charge imposed and any other reasonable expenses incurred
in connection with such replacement Note.
(c) Each
replacement Note issued pursuant to Section 2.5(a) will constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note will be enforceable by anyone and, except as
otherwise provided in this Indenture, will be entitled to all the benefits
of
this Indenture equally and proportionately with all other Notes of the same
Class duly issued under this Indenture.
7
(d) The
provisions of this Section 2.5 are exclusive and preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
Section
2.6 Persons
Deemed Owners.
(a) With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
any Note is registered as of such date as the owner of such Note for the purpose
of receiving payments of principal of and any interest on such Note and for
all
other purposes, and none of the Issuer, the Indenture Trustee or any agent
of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
Section
2.7 Payment
of Principal and Interest..
(a) Each
Class of Notes will accrue interest at the applicable Note Interest
Rate. Interest on each Note will be due and payable on each Payment
Date as specified in such Note. Interest on the Class A-1 Notes, the
Class A-2b Notes, the Class A-3b Notes and the Class A-4b Notes will be computed
on the basis of actual number of days elapsed and a 360-day
year. Interest on the Notes (other than the Class A-1 Notes, Class
A-2b Notes, the Class A-3b Notes and the Class A-4b Notes) will be computed
on
the basis of a 360-day year consisting of twelve 30-day months.
(b) Interest
and principal payments on each Class of Notes will be made ratably to the
Noteholders of such Class entitled to such payments. On each Payment
Date before the issuance of Definitive Notes, distributions to be made with
respect to interest on and principal of the Book-Entry Notes will be paid to
the
Registered Noteholder by wire transfer in immediately available funds to the
account designated by the nominee of the Clearing Agency (initially, such
nominee will be Cede & Co.). Distributions to be made with
respect to interest on and principal of the Class C Notes and Class D Notes
and,
on and after the date on which Definitive Notes are issued, the Class A Notes
and the Class B Notes will be paid to the Registered Noteholder (i) if such
Noteholder has provided to the Note Registrar appropriate instructions at least
5 Business Days before such Payment Date and the aggregate original principal
amount of such Noteholder's Notes is at least $1,000,000, by wire transfer
in
immediately available funds to the account of such Noteholder or (ii) by check
mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on the related Record
Date. However, the final installment of principal (whether
payable by wire transfer or check) of each Note on a Payment Date, the
Redemption Date or the applicable Final Scheduled Payment Date will be
payable only upon presentation and surrender of such Note. The
Indenture Trustee will notify each Registered Noteholder of the date on which
the Issuer expects that the final installment of principal of and interest
on
such Registered Noteholder's Notes will be paid not later than 5 days before
such date. Such notice will specify the place where such Notes may be
presented and surrendered for payment of such installment. All funds
paid by wire transfers or checks that are returned undelivered will be held
in
accordance with Section 3.3.
(c) The
principal of each Note will be payable in installments on each Payment Date
as
specified in such Note. The entire unpaid Note Balance of each Class
of Notes will be due and payable on the earlier of their applicable Final
Scheduled Payment Date and the Redemption Date. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a).
Section
2.8 Cancellation. Any
Person that receives a
Note surrendered for payment, registration of transfer, exchange or redemption
will deliver such Note to the Indenture Trustee. The Indenture
Trustee will promptly cancel all Notes it receives that have been surrendered
for payment, registration of transfer or exchange, or redemption. The
Issuer
may deliver to the Indenture Trustee
for cancellation any Notes previously authenticated and delivered under this
Indenture which the Issuer
may have acquired in any manner, and
the Indenture Trustee will promptly cancel such Notes. No Notes will
be authenticated in lieu of or in exchange for any Notes cancelled as provided
in this Section 2.8. The Indenture Trustee may hold or dispose of all
cancelled Notes in accordance with its standard retention or disposal policy
unless the Issuer
directs, by Issuer
Order, that they be destroyed or
returned to it (so long as such Notes have not been disposed of previously
by
the Indenture Trustee).
8
Section
2.9 Release
of Collateral.
The
Indenture Trustee will release property from the lien of this Indenture only
in
accordance with Sections 8.4 and 10.1.
Section
2.10 Book-Entry
Notes. The
Book-Entry Notes, upon
original issuance, will be issued in the form of typewritten Notes representing
the Book-Entry Notes and delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Issuer. The
Book-Entry Notes will
be registered initially on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner will receive a
Definitive Note representing such Note Owner's
interest in such Note, except as
provided in Section 2.11. Unless and until definitive, fully
registered Notes (the "Definitive
Notes")
have been issued to Note Owners
pursuant to Section 2.11:
(a) with
respect to Book-Entry Notes, the Note Registrar and the Indenture Trustee will
be entitled to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Book-Entry Notes
and
the giving of notices, instructions or directions under this Indenture) as
the
sole Noteholder of the Book-Entry Notes, and will have no obligation to the
Note
Owners;
(b) the
Clearing Agency will make book-entry transfers among its participants and
receive and transmit payments of principal of and interest on the Book-Entry
Notes to such participants;
(c) to
the extent that the provisions of this Section 2.10 conflict with any other
provisions of this Indenture, the provisions of this Section 2.10 will
control;
(d) the
rights of Note Owners may be exercised only through the Clearing Agency and
will
be limited to those established by law and agreements between such Note Owners
and the Clearing Agency and/or its participants pursuant to the DTC Letter;
and
(e) whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Noteholders of a specified percentage of the Note Balance
of
the Notes Outstanding (or the Controlling Class), the Clearing Agency will
be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or the Clearing Agency's
participants owning or representing, respectively, such required percentage
of
the beneficial interest of the Notes Outstanding (or the Controlling Class)
and
has delivered such instructions to the Indenture Trustee.
Section
2.11 Definitive
Notes. The
Class C Notes and Class D Notes
will be issued as Definitive Notes on the Closing Date. With respect to any
Class or Classes of
Book-Entry Notes, if (i) the Administrator advises the Indenture Trustee that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities as depository for the Book-Entry Notes and the
Administrator is unable to reach an agreement on satisfactory terms with a
qualified successor, (ii) the Administrator notifies the Indenture Trustee
that
it elects to terminate the book-entry system through the Clearing Agency or
(iii) after the occurrence of an Event of Default or an Event of Servicing
Termination, so long as any Book-Entry Notes are Outstanding Note Owners
representing not less than a majority of the Controlling Class notify the
Indenture Trustee and the Clearing Agency that they elect to terminate the
book-entry system through the Clearing Agency, then the Clearing Agency will
notify all Note Owners and the Indenture Trustee of the occurrence of such
election and of the availability of Definitive Notes to the Note
Owners. After the Clearing Agency has surrendered the typewritten
Notes representing the Book-Entry Notes and delivered the registration
instructions to the Indenture Trustee, the Issuer
will execute and the Indenture Trustee
will authenticate the Definitive Notes in accordance with the instructions
of
the Clearing Agency. None of the Issuer,
the Note Registrar or the Indenture
Trustee will be liable for any delay in delivery of such instructions and may
conclusively rely on, and will be protected in relying on, such
instructions. Upon the issuance of Definitive Notes to Note Owners,
the Indenture Trustee will recognize the holders of such Definitive Notes as
Noteholders.
9
Section
2.12 Authenticating
Agents.
(a) The
Indenture Trustee may appoint one or more Persons (each, an "Authenticating
Agent") with the power to act on its behalf and subject to its direction in
the authentication of Notes in connection with issuances, transfers and
exchanges under Sections 2.2, 2.4, 2.5 and 9.6, as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
2.12 is deemed to be the authentication of Notes "by the Indenture
Trustee."
(b) Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
consolidation or conversion to which an Authenticating Agent is a party, or
any
Person succeeding to all or substantially all of the corporate trust business
of
an Authenticating Agent, will be the successor of such Authenticating Agent
under this Indenture without the execution or filing of any document or any
further act.
(c) An
Authenticating Agent may resign by giving notice of resignation to the Indenture
Trustee and the Owner Trustee. The Indenture Trustee may terminate
the agency of an Authenticating Agent by giving notice of termination to such
Authenticating Agent and the Owner Trustee. Upon receiving such
notice of resignation or upon such a termination, the Indenture Trustee may
appoint a successor Authenticating Agent and will notify the Owner Trustee
of
any such appointment.
(d) Sections
2.8 and 6.4 will apply to each Authenticating Agent.
Section
2.13 Note
Paying Agents.
(a) The
Indenture Trustee may appoint one or more Note Paying Agents that meet the
eligibility standards for the Indenture Trustee specified in Section
6.11(a). The Note Paying Agents will have the power to make
distributions from the Trust Accounts.
(b) Any
Person into which a Note Paying Agent may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, consolidation
or conversion to which a Note Paying Agent is a party, or any Person succeeding
to all or substantially all of the corporate trust business of a Note Paying
Agent, will be the successor of such Note Paying Agent under this Indenture
without the execution or filing of any document or any further act.
(c) A
Note Paying Agent may resign by giving notice of resignation to the Indenture
Trustee, the Administrator and the Issuer. The Indenture Trustee may
terminate the agency of a Note Paying Agent by giving notice of termination
to
such Note Paying Agent, the Administrator and the Issuer. Upon
receiving such notice of resignation or upon such a termination, the Indenture
Trustee may appoint a successor Note Paying Agent and will notify the
Administrator and the Issuer of any such appointment.
(d) Sections
2.8 and 6.4 will apply to each Note Paying Agent.
10
ARTICLE
III
COVENANTS
AND REPRESENTATIONS
Section
3.1 Payment
of Principal and
Interest. The
Issuer
will duly and punctually pay the
principal of and interest on the Notes in accordance with the Notes and this
Indenture. Amounts withheld under the Code or any State or local tax
law by any Person from a payment to any Noteholder will be considered as having
been paid by the Issuer
to such
Noteholder.
Section
3.2 Maintenance
of Office or
Agency. The
Issuer
will maintain an office or agency in
the Borough of Manhattan, The City of New York, where Notes may be surrendered
for registration of transfer or exchange, and where notices and demands to
or
upon the Issuer
in respect of the Notes and this
Indenture may be served. The Issuer
initially appoints the Indenture
Trustee to serve as its agent for such purposes. The Issuer
will promptly notify the Indenture
Trustee of any change in the location of such office or agency. If
the Issuer
fails to maintain any such office or
agency or fails to furnish the Indenture Trustee with the address of such office
or agency, such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer
appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands.
Section
3.3 Money
for Payments To Be Held in Trust.
(a) All
payments of amounts due and payable with respect to any Notes and the Interest
Rate Swaps that are to be made from amounts withdrawn from the Bank Accounts
will be made on behalf of the Issuer by the Indenture Trustee or by another
Note
Paying Agent, and no amounts so withdrawn from the Bank Accounts for payments
of
Notes may be paid over to the Issuer, except as provided in this Section
3.3.
(b) The
Indenture Trustee (including in its capacity as Note Paying Agent) will cause
each Note Paying Agent (other than the Indenture Trustee itself) to execute
and
deliver to the Indenture Trustee, an instrument in which such Note Paying Agent
agrees with the Indenture Trustee to:
(i) hold
all sums held by it for the payment of amounts due on the Notes in trust for
the
benefit of the Persons entitled to such sums until such sums are paid to such
Persons or otherwise disposed of as provided in this Indenture and pay such
sums
to such Persons as provided in this Indenture;
(ii) give
the Indenture Trustee notice of any default by the Issuer of which it has actual
knowledge in the making of any payment required to be made with respect to
the
Notes;
(iii) during
the continuance of any such default, upon the request of the Indenture Trustee,
immediately pay to the Indenture Trustee all sums held in trust by such Note
Paying Agent;
(iv) immediately
resign as a Note Paying Agent and immediately pay to the Indenture Trustee
all
sums held by it in trust for the payment of Notes if it ceases to meet the
eligibility standards specified in Section 6.11(a) with respect to the Indenture
Trustee; and
(v) comply
with all requirements of the Code and any State or local tax law with respect
to
withholding and reporting requirements in connection with payments on the
Notes.
11
(c) The
Issuer may by Issuer Order, direct any Note Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Note Paying Agent, such sums to be held
by the Indenture Trustee upon the same trusts as those upon which the sums
were
held by such Note Paying Agent. Upon a Note Paying Agent's payment of
all sums held in trust to the Indenture Trustee, such Note Paying Agent will
be
released from all further liability with respect to such money.
(d) Subject
to laws with respect to escheat of funds, any money held by the Indenture
Trustee or any Note Paying Agent in trust for the payment of any amount due
with
respect to any Note and remaining unclaimed for 2 years after such amount has
become due and payable will be discharged from such trust and paid to the Issuer
upon Issuer Request. After such discharge and payment, the Noteholder
of such Note will, as an unsecured general creditor, look only to the Issuer
for
payment of such amount due and unclaimed (but only to the extent of the amounts
so paid to the Issuer), and all liability of the Indenture Trustee or such
Note
Paying Agent with respect to such trust money will thereupon
cease. However, the Indenture Trustee or such Note Paying Agent,
before making any such repayment, will publish once, at the expense and
direction of the Issuer, in a newspaper customarily published on each Business
Day in the English language and of general circulation in The City of New York,
notice that such money remains unclaimed and that after a date specified in
such
notice, which must be at least 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Issuer. The Indenture Trustee will also adopt and employ, at the
expense of the Administrator and direction of the Issuer, any other reasonable
means of notification of such repayment (including notifying Noteholders whose
Notes have been called but have not been surrendered for redemption or whose
right to or interest in monies due and payable but not claimed is determinable
from the records of the Indenture Trustee or of any Note Paying Agent of such
repayment, at the last address of record for each such Noteholder).
Section
3.4 Existence. The
Issuer
will keep in full effect its
existence, rights and franchises as a statutory trust under the Delaware
Statutory Trust Act (unless it becomes, or any successor Issuer
under this Indenture is or becomes,
organized under the laws of any other State or of the United States, in which
case the Issuer
will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction)
and
will obtain and preserve its qualification in each jurisdiction in which such
qualification is or will be necessary to protect the validity and enforceability
of this Indenture, the Notes, the Collateral and each other instrument or
agreement included in the Collateral.
Section
3.5 Protection of
Collateral.
(a) The
Issuer will (1) execute and deliver all such supplements and amendments to
this Indenture and instruments of further assurance and other instruments,
(2)
file or authorize and cause to be filed all such financing statements and
amendments and continuations of such financing statements and (3) take such
other action, in each case necessary or advisable to:
(i) maintain
or preserve the lien and security interest (and the priority of such security
interest) of this Indenture or carry out more effectively the purposes of this
Indenture;
(ii) perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture;
(iii) enforce
any of the Collateral; or
(iv) preserve
and defend title to the Collateral and the rights of the Indenture Trustee
and
the Secured Parties in such Collateral against the claims of all
Persons.
12
(b) The
Issuer authorizes the Administrator and the Indenture Trustee to file any
financing or continuation statements, and amendments to such statements, in
all
jurisdictions and with all filing offices as the Administrator or the Indenture
may determine are necessary or advisable to preserve, maintain and protect
the
interest of the Indenture Trustee in the Collateral. Such financing
and continuation statements may describe the Collateral in any manner as the
Administrator or the Indenture Trustee may reasonably determine to ensure the
perfection of the interest of the Indenture Trustee in the Collateral (including
describing the Collateral as "all assets" of the Issuer). The
Administrator or the Indenture Trustee, as applicable, will deliver to the
Issuer file-stamped copies of, or filing receipts for, any such financing
statement and continuation statement promptly upon such document becoming
available following filing.
(c) The
Indenture Trustee is under no obligation to make any determination of whether
any such financing or continuation statements, and amendments to such
statements, are required to be filed pursuant to this Section 3.5.
Section
3.6 Performance of
Obligations; Servicing of Receivables.
(a) No
Release of Material Covenants or Obligations. The Issuer will not
take any action, and will use its best efforts to prevent any action from being
taken by others, that would release any Person from any material covenants
or
obligations under any instrument or agreement included in the Collateral or
that
would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument
or
agreement, except as provided in any Basic Document.
(b) Contracting. The
Issuer may contract with other Persons to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person identified
to the Indenture Trustee in an Officer's Certificate of the Issuer will be
deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) Performance
of Obligations. The Issuer will punctually perform and observe
all of its obligations and agreements contained in the Basic Documents and
in
the instruments and agreements included in the Collateral.
(d) Event
of Servicing Termination. If the Issuer has actual knowledge of
the occurrence of an Event of Servicing Termination, the Issuer will promptly
notify the Indenture Trustee and the Rating Agencies of such occurrence and
specify in such notice any action the Issuer is taking in respect of such
event. If an Event of Servicing Termination arises from the failure
of the Servicer to perform any of its duties and obligations under the Sale
and
Servicing Agreement with respect to the Receivables, the Issuer will take all
reasonable steps available to cause the Servicer to remedy such
failure.
(e) Interest
Rate Swap. The Issuer will not enter into any Interest
Rate Swap after the Closing Date unless (i) as of the date that such
Interest Rate Swap is entered into, the related Swap Counterparty has the Swap
Required Ratings and (ii) such Interest Rate Swap provides that, if the
related Swap Counterparty fails to have the Swap Required Ratings, such Swap
Counterparty will take the actions that are specified in the Interest Rate
Swap
entered into by the Issuer on the Closing Date.
Promptly
following the termination of any Interest Rate Swap due to an Event of Default
or Termination Event (as each such term is defined in such Interest Rate Swap),
the Issuer will use reasonable efforts to enter into a replacement Interest
Rate
Swap on terms similar to those of such terminated Interest Rate Swap with an
eligible Swap counterparty unless the Indenture Trustee sells the Collateral
pursuant to Section 5.6(a)(iv).
13
Section
3.7 Negative
Covenants. So
long as any Notes are
Outstanding, the Issuer
will not:
(a) except
as expressly permitted by any Basic Document, sell, transfer, exchange or
otherwise dispose of any of the assets in the Collateral unless directed to
do
so by the Indenture Trustee;
(b) claim
any credit on, or make any deduction from the principal or interest payable
in
respect of, the Notes (other than amounts withheld from such payments under
the
Code or any State or local tax law) or assert any claim against any present
or
former Noteholder by reason of the payment of the taxes levied or assessed
upon
the Issuer or the Collateral;
(c) dissolve
or liquidate in whole or in part;
(d) (i)
permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated
or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as expressly
permitted by this Indenture, (ii) permit any Lien other than Permitted Liens
to
be created on or extend to or otherwise arise upon or burden the Collateral
or
(iii) permit the lien of this Indenture not to constitute a valid first priority
security interest in the Collateral (other than with respect to Permitted
Liens); or
(e) except
as otherwise provided in any Basic Document, amend, modify, waive, supplement,
terminate or surrender the terms of any Collateral or any of the Basic Documents
without the consent of the Indenture Trustee or the Noteholders of at least
a
majority of the Note Balance of the Notes Outstanding and upon notice to the
Rating Agencies.
Section
3.8 Opinions as to
Collateral.
(a) On
the Closing Date, the Issuer will furnish to the Indenture Trustee an Opinion
of
Counsel to the effect that this Indenture has been properly recorded and filed
to make effective the lien intended to be created by this Indenture, and
reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to make such lien effective.
(b) On
or before April 30 in each calendar year, beginning April 30, 2008, the Issuer
will furnish to the Indenture Trustee an Opinion of Counsel either to the effect
that, in the opinion of such counsel, such action has been taken with respect
to
the recording, filing, re-recording and refiling of this Indenture, as is
necessary to maintain the lien of this Indenture, and reciting the details
of
such action, or to the effect that in the opinion of such counsel no such action
is necessary to maintain such lien.
Section
3.9 Annual
Statement as to Compliance. The Issuer will deliver to the
Indenture Trustee within 90 days after the end of each calendar year, an
Officer's Certificate, stating, as to the Responsible Person signing such
Officer's Certificate, that (i) a review of the Issuer's activities and of
its
performance under this Indenture during the preceding calendar year (or, in
the
case of the first certificate, the portion of the preceding calendar year since
the Closing Date) has been made under such Responsible Person's supervision
and
(ii) to such Responsible Person's knowledge, based on such review, the Issuer
has complied in all material respects with all conditions and covenants to
be
complied with by the Issuer under this Indenture during the preceding calendar
year, or, if there has been a failure to comply in any material respect that
is
continuing, specifying each such failure known to such Responsible Person and
the nature and status of such failure. If the Issuer is not required
to file periodic reports under the Exchange Act or otherwise required by law
to
file an Officer's Certificate of the Issuer as to compliance, such Officer's
Certificate may be delivered on or before April 30 of each calendar
year. A copy of the Officer's Certificate referred to in this Section
3.9 may be obtained by any Noteholder or Person certifying it is a Note Owner
by
a request in writing to the Indenture Trustee at its Corporate Trust
Office. The Issuer's obligation to deliver an Officer's Certificate
under this Section 3.9 will terminate upon the payment in full of the Notes,
including by redemption in whole pursuant to Section 10.1.
14
Section
3.10 Consolidation and
Merger; Sale of Assets. The Issuer will not
consolidate or merge with or into any other Person or convey or transfer all
or
substantially all of the assets included in the Collateral to any Person,
unless:
(a) the
Person (if other than the Issuer) formed by or surviving such consolidation
or
merger, or that acquires the properties and assets, (i) is organized and
existing under the laws of the United States or any State and (ii) assumes,
by
an indenture supplemental to this Indenture, executed and delivered to the
Indenture Trustee, in form reasonably satisfactory to the Indenture Trustee,
the
due and punctual payment of the principal of and interest on all Notes, all
obligations under the Interest Rate Swaps and the performance or observance
of
every agreement and covenant of this Indenture to be performed or observed
by
the Issuer, all as provided in this Indenture;
(b) with
respect to a conveyance or transfer of all or substantially all of the assets
included in the Collateral, the Person that acquires the properties and assets
agrees by means of the supplemental indenture executed and delivered
pursuant to clause (a) (i) that all right, title and interest so conveyed or
transferred will be subject and subordinate to the rights of the Noteholders,
(ii) unless otherwise provided in such supplemental indenture, to indemnify,
defend and hold harmless the Issuer from and against any costs, expenses,
losses, damages, claims and liabilities (including attorneys' fees) arising
under or related to this Indenture and the Notes and (iii) that such Person
will
make all filings with the Securities and Exchange Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
(c) immediately
after giving effect to such consolidation, merger or sale, no Default or Event
of Default will have occurred and be continuing;
(d) Rating
Agency Confirmation has been obtained with respect to such consolidation, merger
or sale;
(e) the
Issuer has received an Opinion of Counsel (and has delivered copies of such
Opinion of Counsel to the Indenture Trustee) to the effect that such
consolidation, merger or sale will not cause (i) any security issued by the
Issuer to be deemed sold or exchanged for purposes of Section 1001 of the Code
or (ii) the Issuer to be treated as an association or publicly traded
partnership taxable as a corporation for U.S. federal income tax
purposes;
(f) any
action that is necessary to maintain the lien and security interest created
by
this Indenture has been taken; and
(g) the
Issuer has delivered to the Depositor, the Servicer, the Owner Trustee and
the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel each to
the
effect that such consolidation, merger or sale and such supplemental indenture
comply with this Article III and that all conditions precedent in this Indenture
relating to such consolidation, merger or sale have been complied with
(including any filing required by the Exchange Act).
Section
3.11 Successor or
Transferee.
(a) Upon
any consolidation or merger of the Issuer in accordance with Section 3.10,
the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) will succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer in this Indenture.
15
(b) Upon
a conveyance or sale of all or substantially all of the assets and properties
of
the Issuer pursuant to Section 3.10, the Issuer will be released from every
covenant and agreement of this Indenture to be performed or observed by the
Issuer with respect to the Notes immediately upon the delivery of notice to
the
Indenture Trustee stating that the Issuer is to be so released.
Section
3.12 No
Other Activities. The
Issuer
will not engage in any activities
other than financing, acquiring, owning and pledging the Receivables in the
manner contemplated by the Basic Documents and activities incidental
thereto.
Section
3.13 Further
Instruments and
Acts. Upon
request of the
Indenture Trustee, the Issuer
will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to
carry out the purpose of this Indenture.
Section
3.14 Restricted
Payments.
(a) The
Issuer will not, directly or indirectly, (i) make any distribution (by reduction
of capital or otherwise) to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer or to the Servicer or the
Administrator, (ii) redeem, purchase, retire or otherwise acquire for value
any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose.
(b) Notwithstanding
Section 3.14(a), the Issuer may make payments to the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee, the Swap
Counterparties, the Noteholders and the Depositor to the extent contemplated
by
the Basic Documents.
(c) The
Issuer will not, directly or indirectly, make payments to or distributions
from
the Collection Account or the Principal Payment Account except in accordance
with the Basic Documents.
Section
3.15 Notice
of Events of
Default. The
Issuer
will notify the Indenture Trustee and
the Rating Agencies within 5 Business Days after a Responsible Person of the
Issuer
obtains actual knowledge of an Event
of Default.
Section
3.16 Representations and
Warranties of the Issuer as to Security
Interest. The Issuer represents and warrants to the Indenture
Trustee as of the Closing Date:
(a) This
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Indenture Trustee which
security interest is prior to all other Liens, and is enforceable as such
against creditors of and purchasers from the Issuer.
(b) All
of the Permitted Investments have been and will be credited to a Securities
Account. The securities intermediary for each Securities Account has
agreed to treat all assets credited to the Securities Accounts as "financial
assets" within the meaning of the applicable UCC. The Collateral
(other than those Permitted Investments which have been credited to a Securities
Account) constitutes "chattel paper," "instruments" or "general
intangibles" within the meaning of the applicable UCC.
(c) The
Issuer owns and has good and marketable title to the Receivables free and clear
of any Lien other than Permitted Liens. The Issuer has received all
consents and approvals required by the terms of the Receivables to transfer
to
the Indenture Trustee all of its interest and rights in the Receivables and
the
Interest Rate Swaps, except to the extent that any requirement for consent
or
approval is rendered ineffective under the applicable UCC.
16
(d) The
Issuer has caused, or will cause within 10 days after the Closing Date, the
filing of all appropriate financing statements in the proper filing office
in
the appropriate jurisdictions under applicable law in order to perfect the
security interest Granted in the Collateral to the Indenture
Trustee.
(e) The
Issuer has delivered to the Indenture Trustee a fully executed agreement
pursuant to which the securities intermediary has agreed to comply with all
instructions originated by the Indenture Trustee relating to the Securities
Accounts without further consent by the Issuer.
(f) Other
than the security interest Granted to the Indenture Trustee pursuant to this
Indenture, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any part of the Collateral. The
Issuer has not authorized the filing of and is not aware of any financing
statements against the Issuer that include a description of collateral covering
any part of the Collateral, other than any financing statements relating to
the
security interest Granted to the Indenture Trustee. The Issuer is not
aware of any judgment or tax lien filings against it.
(g) The
Securities Accounts are not in the name of any Person other than the Issuer
or
the Indenture Trustee. The Issuer has not consented to the securities
intermediary of any Securities Account complying with entitlement orders of
any
Person other than the Indenture Trustee.
(h) All
financing statements filed or to be filed against the Issuer, or any assignor
of
which the Issuer is the assignee, in favor of the Indenture Trustee in
connection with this Indenture describing the Collateral contain a statement
substantially to the following effect: "The grant of a security
interest in any collateral described in this financing statement will violate
the rights of the Secured Parties."
Section
3.17 Audits
of the Issuer. The
Issuer
agrees that, with reasonable prior
notice, it will permit any authorized representative of the Indenture Trustee,
the Servicer or the Administrator, during the Issuer's
normal business hours, to examine and
audit the books of account, records, reports and other documents and materials
of the Issuer
relating to the performance of the
Issuer's
obligations under this
Indenture. In addition, the Issuer
will permit such representatives to
make copies and extracts of any such books and records and to discuss the same
with the Issuer's
officers and registered public
accountants. Each of the Indenture Trustee, the Servicer and the
Administrator will, and will cause its authorized representatives to, hold
in
confidence all such information except to the extent (a) disclosure may be
required by law (and all reasonable applications for confidential treatment
are
unavailing) or (b) that the Indenture Trustee, the Servicer or the
Administrator, as the case may be, reasonably determines that such disclosure
is
consistent with its obligations under this Indenture.
Section
3.18 Representations and
Warranties of the Issuer. The Issuer represents and
warrants to the Indenture Trustee as of the Closing Date:
(a) Organization
and Qualification. The Issuer is a statutory trust duly formed,
validly existing and in good standing under the laws of the State of
Delaware.
(b) Power,
Authorization and Enforceability. The Issuer has the power and
authority to execute, deliver and perform the terms this
Indenture. The Issuer has authorized the execution, delivery and
performance of the terms of this Indenture. This Indenture is the
legal, valid and binding obligation of the Issuer enforceable against the
Issuer, 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
Issuer of this Indenture, the consummation by the Issuer of the transactions
contemplated by this Indenture and the compliance by the Issuer with this
Indenture will not (i) violate any Delaware State law, governmental rule or
regulation applicable to the Issuer or any judgment or decree binding on it
or
(ii) conflict with, result in a breach of, or constitute (with or without notice
or lapse of time or both) a default under any indenture, mortgage, deed of
trust, loan agreement, guarantee or similar agreement or instrument under which
the Issuer is a debtor or guarantor, in each case which conflict, breach,
default, lien, or violation would reasonably be expected to have a material
adverse effect on the Issuer's ability to perform its obligations under this
Indenture.
17
(d) No
Proceedings. To the Issuer's knowledge, there are no proceedings
or investigations pending or overtly threatened in writing before any court
or
other governmental authority of the State of Delaware: (i) asserting the
invalidity of any of the Basic Documents or the Notes (ii) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by any of the Basic Documents, (iii) seeking any determination
or
ruling that would reasonably be expected to have a material adverse effect
on
the Trust Property or the Issuer's ability to perform its obligations under,
or
the validity or enforceability any of the Basic Documents or the
Notes.
Section
3.19 Calculation
Agent. The Issuer agrees that for so long as any of the Floating
Rate Notes are Outstanding there will at all times be an agent appointed to
calculate LIBOR in respect of each Interest Period (the "Calculation
Agent"). The Issuer appoints The Bank of New York as Calculation
Agent for purposes of determining LIBOR for each Interest Period and The Bank
of
New York accepts such appointment. The Calculation Agent may be
removed by the Issuer at any time. If the Calculation Agent is unable
or unwilling to act as such or is removed by the Issuer, the Issuer will
promptly appoint as a replacement Calculation Agent a leading bank which is
engaged in transactions in Eurodollar deposits in the international Eurodollar
market and which does not control or is not controlled by or under common
control with the Issuer or its Affiliates. The Calculation Agent may
not resign its duties without a successor having been duly
appointed.
ARTICLE
IV
SATISFACTION
AND DISCHARGE
Section
4.1 Satisfaction and
Discharge of Indenture.
(a) Subject
to Section 4.1(b), this Indenture will cease to be of further effect with
respect to the Notes, and the Indenture Trustee, upon Issuer Order and at the
expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes,
if:
(i) all
Notes that have been authenticated and delivered (other than (x) Notes that
have
been destroyed, lost or stolen and that have been replaced or paid as provided
in Section 2.5 and (y) Notes for whose payment money has been deposited in
trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation;
(ii) the
Issuer has paid or caused to be paid all other sums payable under the Basic
Documents and all payments due to the Swap Counterparties by the
Issuer; and
(iii) the
Issuer has delivered to the Indenture Trustee an Officer's Certificate and
an
Opinion of Counsel, each to the effect that all conditions precedent relating
to
the satisfaction and discharge of this Indenture pursuant to this Section 4.1(a)
have been complied with.
(b) After
the satisfaction and discharge of this Indenture pursuant to Section 4.1(a),
this Indenture will continue as to (i) rights of registration of transfer and
exchange, (ii) replacement of mutilated, destroyed, lost or stolen Notes, (iii)
the rights of Noteholders to receive payments of principal of and interest
on
the Notes, (iv) Sections 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.13, 3.14 and 3.15,
(v) the rights, obligations and immunities of the Indenture Trustee under this
Indenture and (vi) the rights of the Secured Parties as beneficiaries of this
Indenture with respect to the property deposited with the Indenture Trustee
payable to all or any of them for a period of 2 years following such
satisfaction and discharge.
18
(c) Upon
the satisfaction and discharge of the Indenture pursuant to this Section 4.1,
at
the request of the Owner Trustee, the Indenture Trustee will deliver to the
Owner Trustee a certificate of a Trustee Officer stating that all Noteholders
have been paid in full and stating whether, to the best knowledge of such
Trustee Officer, any claims remain against the Issuer in respect of the
Indenture and the Notes.
ARTICLE
V
REMEDIES
Section
5.1 Events
of Default.
(a) The
occurrence of any one of the following events will constitute an event of
default under this Indenture (each, an "Event of Default"):
(i) failure
to pay interest due on any Note of the Controlling Class when the same becomes
due and payable on each Payment Date, and such failure continues for a period
of
5 days or more;
(ii) failure
to pay the principal of any Note at its Final Scheduled Payment Date or
Redemption Date, if any;
(iii) failure
to observe or perform any material covenant or agreement of the Issuer made
in
this Indenture (other than covenants and agreements as to which the failure
to
observe or perform is specifically covered elsewhere in this Section 5.1) or
any
representation or warranty of the Issuer made in this Indenture or in any
Officer's Certificate or other document delivered pursuant to or in connection
with this Indenture proves to have been incorrect in any material respect as
of
the time made and, in each case, such failure or incorrectness continues for
a
period of 60 days after notice was given to the Issuer by the Indenture Trustee
or to the Issuer and the Indenture Trustee by the Noteholders of at least 25%
of
the Note Balance of the Controlling Class specifying such failure or
incorrectness, requiring it to be remedied and stating that such notice is
a
"Notice of Default"; or
(iv) the
occurrence of an Insolvency Event with respect to the Issuer.
(b) The
Issuer will notify the Indenture Trustee within 5 Business Days after a
Responsible Person of the Issuer has actual knowledge of the occurrence of
an
event set forth in Section 5.1(a)(iii) which with the giving of notice and
the
lapse of time would become an Event of Default, which notice will describe
such
Default, the status of such Default and what action the Issuer is taking or
proposes to take with respect to such Default. The Issuer will send a
copy of such notice to each Qualified Institution or Qualified Trust Institution
(if not the Indenture Trustee) maintaining a Bank Account.
Section
5.2 Acceleration of
Maturity; Rescission and Annulment.
(a) If
an Event of Default occurs and is continuing, the Indenture Trustee or the
Noteholders of at least a majority of the Note Balance of the Controlling Class
may declare all of the Notes to be immediately due and payable, by notice to
the
Issuer (and to the Indenture Trustee if given by the
Noteholders). Upon any such declaration, the unpaid Note Balance of
the Notes, together with accrued and unpaid interest through the date of
acceleration, will become immediately due and payable. If an Event of
Default specified in Section 5.1(a)(iv) occurs, all unpaid principal of and
accrued and unpaid interest on the Notes, and all other amounts payable under
this Indenture, will automatically become due and payable without any
declaration or other act on the part of the Indenture Trustee or any
Noteholder. Upon any such declaration or automatic acceleration, the
Indenture Trustee will promptly notify each Noteholder, each Swap
Counterparty and each Qualified Institution or Qualified Trust Institution
(if
not the Indenture Trustee) maintaining a Bank Account.
19
(b) The
Noteholders of at least a majority of the Note Balance of the Controlling Class,
by notice to the Issuer and the Indenture Trustee, may rescind and annul a
declaration of acceleration of maturity and its consequences before a judgment
or decree for payment of the amount due has been obtained by the Indenture
Trustee as provided in this Article V if:
(i) the
Issuer has paid or deposited with the Indenture Trustee an amount sufficient
to
(1) pay all payments of principal of and interest on the Notes and all other
amounts that would then be due under this Indenture or upon the Notes and the
Interest Rate Swaps if the Event of Default giving rise to such acceleration
had
not occurred, (2) pay all amounts owed to the Indenture Trustee under Section
6.7, and (3) pay all other outstanding fees and expenses of the Issuer,
and
(ii) all
Events of Default, other than the nonpayment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.14.
No
such
rescission will affect any subsequent default or impair any right resulting
from
such rescission.
Section
5.3 Collection of
Indebtedness by the Indenture Trustee.
(a) The
Issuer covenants that if an Event of Default under Section 5.1(a)(i) or (ii)
occurs and continues, the Issuer, upon demand of the Indenture Trustee, will
pay
to the Indenture Trustee for the benefit of the Noteholders, such overdue amount
with interest on any overdue principal at the applicable Note Interest Rate
and,
to the extent lawful, with interest on any overdue interest at the applicable
Note Interest Rate. In addition, the Issuer covenants to pay, or to
cause the Administrator to pay, the costs and expenses of collection, including
all amounts owed to the Indenture Trustee under Section 6.7.
(b) If
the Issuer fails to pay such amounts upon such demand, the Indenture Trustee,
in
its own name and as trustee of an express trust, may institute a Proceeding
for
the collection of the sums so due and unpaid, and may prosecute such Proceeding
to judgment or final decree, and may enforce the same against the Issuer and
collect the monies adjudged or decreed to be payable in the manner provided
by
law out of the Collateral.
Section
5.4 Trustee
May File Proofs of Claim.
(a) In
case there is pending, relative to the Issuer, Proceedings under the Bankruptcy
Code or any other federal or State bankruptcy, insolvency or other similar
law,
or in case a trustee, liquidator, receiver or similar official has been
appointed for or taken possession of the Issuer or its property, the Indenture
Trustee, irrespective of whether the Indenture Trustee has made any demand
pursuant to Section 5.3, may:
(i) file
and prove a claim or claims for the whole amount of principal and interest
owing
and unpaid in respect of the Notes and file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Indenture
Trustee on behalf of the Secured Parties allowed in such
Proceedings (including any amounts due to the Indenture Trustee pursuant to
Section 6.7);
20
(ii) unless
prohibited by applicable law, vote on behalf of the Secured Parties in any
election of a trustee, a standby trustee or a Person performing similar
functions in any such Proceedings;
(iii) collect
and receive any monies or other property payable or deliverable on any such
claims and pay all amounts received with respect to the claims of the Secured
Parties, including such claims asserted by the Indenture Trustee on their
behalf; and
(iv) file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee, the Secured
Parties allowed in any judicial proceedings relative to the Issuer, its
creditors and its property.
Any
trustee, liquidator, receiver or similar official in any such Proceeding is
authorized by each Noteholder and each Swap Counterparty to make payments to
the
Indenture Trustee and, if the Indenture Trustee consents to the making of
payments directly to such Noteholders and such Swap Counterparty, to pay to
the
Indenture Trustee an amount sufficient to cover all amounts owed to the
Indenture Trustee under Section 6.7.
(b) Except
as provided in Section 5.4(a)(ii), this Indenture does not authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on
behalf of any Noteholder or any Swap Counterparty any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the Interest
Rate
Swaps or the rights of any Noteholder or any Swap Counterparty to authorize
the
Indenture Trustee to vote in respect of the claim of any Noteholder or any
Swap
Counterparty in any such Proceeding.
Section
5.5 Trustee
May Enforce Claims Without Possession of Notes.
(a) All
rights of action and claims under this Indenture, or under any of the Notes,
may
be enforced by the Indenture Trustee without the possession of any of the Notes
or the production of any of the Notes in any Proceeding relative to any of
the
Notes, and any such Proceeding instituted by the Indenture Trustee will be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the amounts owed to the Indenture Trustee under Section
6.7, will be for the benefit of the Secured Parties in respect of which such
judgment has been recovered.
(b) In
any Proceeding brought by the Indenture Trustee (and any Proceeding involving
the interpretation of this Indenture to which the Indenture Trustee is a party),
the Indenture Trustee will be held to represent all the Noteholders, and it
will
not be necessary to make any Noteholder a party to any such
Proceeding.
Section
5.6 Remedies;
Priorities.
(a) If
the Notes have been accelerated under Section 5.2(a), the Indenture Trustee
may
do one or more of the following (subject to Section 5.7), and will upon
direction of a majority of the Controlling Class:
(i) institute
a Proceeding in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture
with
respect to the Notes, enforce any judgment obtained and collect from the Issuer
monies adjudged due;
21
(ii) institute
a Proceeding for the complete or partial foreclosure of this Indenture with
respect to the Collateral;
(iii) exercise
any remedies of a secured party under the UCC and take any other action to
protect and enforce the rights and remedies of the Indenture Trustee, the
Noteholders and the Swap Counterparties; and
(iv) sell
or otherwise liquidate the Collateral or any portion of the Collateral or rights
or interest in the Collateral at one or more public or private sales called
and
conducted in any manner permitted by law.
The
Indenture Trustee will notify each Noteholder, each Swap Counterparty and the
Depositor of any sale or liquidation pursuant to Section 5.6(a)(iv) at least
15
days (but not less than the time required under the UCC or any other law) before
such sale or liquidation. Any Noteholder, any Swap Counterparty or
the Depositor may submit a bid with respect to such sale or
liquidation.
(b) Notwithstanding
Section 5.6(a), the Indenture Trustee is prohibited from selling or otherwise
liquidating the Collateral unless:
(i) the
Event of Default is described in Section 5.1(a)(i) or (ii); or
(ii) the
Event of Default is described in Section 5.1(a) (iii) and:
(1) the
Noteholders representing 100% of the Note Balance of the Notes consent to such
sale or liquidation; or
(2) the
proceeds of such sale or liquidation are expected to be sufficient to pay in
full all amounts owed by the Issuer to the Secured Parties including all
principal of and accrued interest on the Outstanding Notes and all payments
due
(including any Swap Termination Payments) under the Interest Rate
Swaps;
(iii) the
Event of Default is described in Section 5.1(a) (iv) and:
(1) the
Noteholders representing 100% of the Note Balance of the Controlling Class
consent to such sale or liquidation; or
(2) the
proceeds of such sale or liquidation are expected to be sufficient to pay in
full all amounts owed by the Issuer to the Secured Parties including all
principal of and accrued interest on the Outstanding Notes and all payments
due
(including any Swap Termination Payments) under the Interest Rate Swaps;
or
(3) the
Indenture Trustee (A) determines (but will have no obligation to make such
determination) that the Collateral will not continue to provide sufficient
funds
for the payment of all amounts owed to the Secured Parties, as those payments
would have become due if the Notes had not been declared due and payable and
(B)
obtains the consent of Noteholders of at least 66 2/3% of the Note Balance
of
the Controlling Class.
In
determining whether the condition specified in clause (ii)(2), (iii)(2) or
(iii)
(3) (A) above has been satisfied, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of a nationally recognized Independent
investment banking firm or firm of certified public accountants as to the
expected proceeds or as to the sufficiency of the Collateral for such
purpose.
22
(c) Any
money or property collected by the Indenture Trustee following the occurrence
of
(i) an Event of Default specified in Section 5.1(a)(i), (ii) or (iv) and an
acceleration of the Notes or (ii) an Event of Default specified in Section
5.1(a)(iii) and the sale or other liquidation of the Collateral pursuant to
Section 5.6(a)(iv), will be deposited into the Collection Account for
distribution in accordance with Section 8.2(e) on the Payment Date following
the
Collection Period during which such amounts are collected. In all
other circumstances, Section 8.2(c) will continue to apply after an Event of
Default.
Section
5.7 Optional Preservation
of
the Collateral. If the Notes have been accelerated under Section
5.2(a) and such declaration and its consequences have not been rescinded and
annulled in accordance with Section 5.2(b), the Indenture Trustee may elect
to
maintain possession of the Collateral. It is the intention of the
parties to this Indenture and the Noteholders that there at all times be
sufficient funds for the payment of principal of and interest on the Notes
and
any payments due to the Swap Counterparties. The Indenture Trustee
will take such intention into account when determining whether or not to
maintain possession of the Collateral. In determining whether to
maintain possession of the Collateral, the Indenture Trustee may obtain and
rely
upon an opinion of a nationally recognized Independent investment banking firm
or firm of certified public accountants as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such
purpose.
Section
5.8 Limitation of
Suits.
(a) No
Noteholder has any right to institute any Proceeding with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy under this Indenture, unless:
(i) such
Noteholder has given notice to the Indenture Trustee of a continuing Event
of
Default;
(ii) the
Noteholders of at least 25% of the Note Balance of the Controlling Class have
requested the Indenture Trustee to institute such Proceeding in respect of
such
Event of Default in its own name as Indenture Trustee under this
Indenture;
(iii) such
Noteholders have offered reasonable indemnity satisfactory to the Indenture
Trustee against any costs, expenses, losses, damages, claims and liabilities
that may be incurred by the Indenture Trustee, or its agents, counsel,
accountants and experts, in complying with such request;
(iv) the
Indenture Trustee has failed to institute such Proceedings for 60 days after
its
receipt of such notice, request and offer of indemnity; and
(v) the
Noteholders of at least a majority of the Note Balance of the Controlling Class
have not given the Indenture Trustee any direction inconsistent with such
request during such 60 day period.
(b) No
Noteholder has any right to affect, disturb or prejudice the rights of any
other
Noteholder or to obtain or to seek to obtain priority or preference over any
other Noteholder or to enforce any right under this Indenture, except in the
manner provided in this Indenture.
(c) If
the Indenture Trustee receives conflicting requests pursuant to Section
5.8(a)(ii) from two or more groups of Noteholders, each evidencing less than
a
majority of the Note Balance of the Controlling Class, the Indenture Trustee
in
its sole discretion may determine what action, if any, will be
taken.
23
Section
5.9 Unconditional
Rights of Noteholders
To Receive Principal and Interest. Notwithstanding
any other
provisions in this Indenture, each Noteholder has an absolute and unconditional
right to receive payment of the principal of and any interest on its Note on
or
after the respective due dates expressed in such Note or in this Indenture
(or,
in the case of redemption, on or after the Redemption Date) and to institute
a
Proceeding for the enforcement of any such payment in accordance with Section
5.8. Such rights may not be impaired or affected without the consent
of such Noteholder.
Section
5.10 Restoration
of Rights and
Remedies. If
the Indenture Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned
for
any reason or has been determined adversely to the Indenture Trustee or to
such
Noteholder, then the Issuer,
the Indenture Trustee and the
Noteholders, subject to any determination in such Proceeding, will be restored
severally and respectively to their former positions under this Indenture,
and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
will continue as though no such Proceeding had been
instituted.
Section
5.11 Rights
and Remedies
Cumulative. No
right or remedy
conferred upon or reserved to
the Indenture Trustee or to the
Noteholders in this Indenture is intended to be exclusive of any other right
or
remedy, and every right and remedy, to the extent permitted by law, will be
cumulative and in addition to every other right and remedy given under this
Indenture or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy under
this Indenture, or otherwise, will not prevent the concurrent assertion or
employment of any other appropriate right or remedy. The Indenture
Trustee's
right to seek and recover judgment on
the Notes or under this Indenture will not be affected by the seeking, obtaining
or application of any other relief under or with respect to this
Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders will be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer
or by the levy of any execution under
such judgment upon any portion of the Collateral or upon any of the assets
of
the Issuer.
Section
5.12 Delay
or Omission Not a
Waiver. No
delay or omission of the
Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default or Event of Default will impair any such right or remedy,
or
constitute a waiver of any such Default or Event of Default. Every
right and remedy conferred by this Article V or by law to the Indenture Trustee
or to the Noteholders may be exercised from time to time, and as often as may
be
deemed expedient, by the Indenture Trustee or by the Noteholders, as the case
may be.
Section
5.13 Control
by Controlling Class of
Noteholders. The
Noteholders of at least
a majority of the Note Balance of the Controlling Class have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust
or
power conferred on the Indenture Trustee provided that:
(a) such
direction does not conflict with any law or with this Indenture;
(b) except
as provided in Section 5.6(b), any direction to the Indenture Trustee to sell
or
liquidate the Collateral must be made by Noteholders of 100% of the Note Balance
of the Controlling Class;
(c) if
the Indenture Trustee elects to retain the Collateral pursuant to Section 5.7,
then any direction to the Indenture Trustee by Noteholders of less than 100%
of
the Note Balance of the Controlling Class to sell or liquidate the Collateral
will be of no force and effect; and
(d) the
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction from the Noteholders of
at
least a majority of the Note Balance of the Controlling Class.
24
Notwithstanding
the rights of Noteholders set forth in this Section 5.13, the Indenture Trustee
need not take any action that it determines might materially adversely affect
the rights of any Noteholders not consenting to such action.
Section
5.14 Waiver
of Defaults and Events of Default.
(a) The
Noteholders of at least a majority of the Note Balance of the Controlling Class
may waive any Default or Event of Default and its consequences except an Event
of Default (i) in the payment of principal of or interest on any of the Notes
(other than an Event of Default relating to failure to pay principal due only
by
reason of acceleration) or (ii) in respect of a covenant or provision of this
Indenture that cannot be amended, supplemented or modified without the consent
of all Noteholders.
(b) Upon
any such waiver, such Default or Event of Default will be deemed not to have
occurred for every purpose of this Indenture. No such waiver will
extend to any other Default or Event of Default or impair any right relating
to
any other Default or Event of Default.
Section
5.15 Undertaking
for
Costs. All
parties to this
Indenture agree, and each Noteholder by such Noteholder's
acceptance of a Note will be deemed
to have agreed, that a court may in its discretion require, in any suit for
the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in
such suit. This Section 5.15 will not apply to (a) any suit
instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder
or group of Noteholders, in each case holding in the aggregate more than 10%
of
the Note Balance of the Notes Outstanding (or in the case of a suit for the
enforcement of any right or remedy under this Indenture that is instituted
by
the Controlling Class, more than 10% of the Note Balance of the Controlling
Class) or (c) any suit instituted by any Noteholder for the enforcement of
the
payment of principal of or interest on any Note on or after the respective
due
dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
Section
5.16 Waiver
of Stay or Extension
Laws. The
Issuer
covenants (to the extent that it may
lawfully do so) that it will not insist upon, or plead or in any manner
whatsoever, claim or take the benefit or advantage of, any stay or extension
that may affect the covenants or the performance of this Indenture, and the
Issuer
(to the extent that it may lawfully do
so) waives all benefit or advantage of any such law, and covenants that it
will
not hinder, delay or impede the execution of any power in this Indenture granted
to the Indenture Trustee, but will suffer and permit the execution of every
such
power as though no such law had been enacted.
Section
5.17 Performance and
Enforcement of Certain Obligations.
(a) At
the Administrator's expense, the Issuer will promptly take all such lawful
action as the Indenture Trustee may request to (i) compel the performance by
(1)
the Depositor and the Servicer of their obligations to the Issuer under the
Sale
and Servicing Agreement, or (2) the Depositor and Ford Credit of their
obligations under the Purchase Agreement and (ii) exercise any and all rights,
remedies, powers, privileges and claims lawfully available to the Issuer under
such agreements to the extent and in the manner directed by the Indenture
Trustee.
(b) If
an Event of Default has occurred and is continuing, the Indenture Trustee
may, and at the direction of the Noteholders of at least
66 2/3% of the Note Balance of the Controlling Class will, exercise all rights,
remedies, powers, privileges and claims of the Issuer against (i) the Depositor
or the Servicer under the Sale and Servicing Agreement, or (ii) the Depositor
or
Ford Credit under the Purchase Agreement, including the right or power to take
any action to compel or secure performance or observance by such Persons of
their obligations to the Issuer under such agreements, and to give any consent,
request, notice, direction, approval, extension or waiver under such agreements,
and any right of the Issuer to take such action will be
suspended.
25
(c) Promptly
following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer will take all such lawful action as the
Indenture Trustee may request to compel the performance by the Swap
Counterparties in accordance with the related Interest Rate Swaps and to
exercise any and all rights, remedies, powers, privileges and claims lawfully
available to the Issuer under or in connection with such Interest Rate Swap
to
the extent and in the manner directed by the Indenture Trustee.
(d) If
an Event of Default has occurred and is continuing, the Indenture Trustee may,
and at the direction of the Noteholders evidencing not less than 66 2/3% of
the
Note Balance of the Outstanding Notes will, exercise all rights, remedies,
powers, privileges and claims of the Issuer against each of the Swap
Counterparties, including the right or power to take any action to compel or
secure performance or observance by each Swap Counterparty of its obligations
to
the Issuer under the respective Interest Rate Swap, and to give any consent,
request, notice, direction, approval, extension or waiver under the related
Interest Rate Swap, and any right of the Issuer to take such action will be
suspended.
ARTICLE
VI
THE
INDENTURE TRUSTEE
Section
6.1 Duties
of Indenture Trustee.
(a) If
an Event of Default has occurred and is continuing, the Indenture Trustee will
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent Person would use under
the circumstances in the conduct of such Person's own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Indenture Trustee undertakes to perform such duties and only such duties as
are
specifically set forth in this Indenture and no implied covenants or obligations
are to be read into this Indenture against the Indenture Trustee;
and
(ii) in
the absence of bad faith on its part, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
furnished to it, upon any certificates or opinions furnished to it and, if
required by the terms of this Indenture, conforming to the requirements of
this
Indenture, provided that the Indenture Trustee will examine any such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The
Indenture Trustee will not be relieved from liability for its own willful
misconduct, negligent action or negligent failure to act, except
that:
(i) this
Section 6.1(c) does not limit the effect of Section 6.1(b);
(ii) the
Indenture Trustee will not be liable for any error of judgment made in good
faith by a Responsible Person unless it is proved that the Indenture Trustee
was
negligent in ascertaining the pertinent facts; and
26
(iii) the
Indenture Trustee will not be liable for any action it takes or omits to take
in
good faith in accordance with a direction received by it pursuant to Section
5.13 and 5.17(b).
(d) The
Indenture Trustee will not be liable for interest on any money received by
it
except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money
held in trust by the Indenture Trustee need not be segregated from other funds
except to the extent required by law, this Indenture or the Sale and Servicing
Agreement.
(f) Every
provision of this Indenture relating to the conduct of, affecting the liability
of or affording protection to the Indenture Trustee is subject to this Section
6.1 and to the TIA.
(g) The
Indenture Trustee will not be charged with knowledge of any Default or any
Event
of Default unless either (i) a Responsible Person of the Indenture Trustee
has
actual knowledge of such Default or Event of Default or (ii) notice of such
Default or Event of Default has been given to the Indenture Trustee in
accordance with this Indenture.
Section
6.2 Rights
of Indenture Trustee.
(a) The
Indenture Trustee may rely and will be protected in acting or refraining from
acting upon any certificate, instrument, opinion, report, notice, request,
direction, consent or other document believed by it to be genuine and appears
on
its face to be properly executed and signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or
matters stated in any such document.
(b) Before
the Indenture Trustee acts or refrains from acting, it may require an Officer's
Certificate or an Opinion of Counsel. The Indenture Trustee will
not be liable for any action it takes or omits to take in good faith in reliance
on an Officer's Certificate or Opinion of Counsel.
(c) The
Indenture Trustee may exercise any of its rights or powers under this Indenture
or perform any duties under this Indenture either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee will
not be responsible for any misconduct or negligence on the part of, or for
the
supervision of, any such agent, counsel, custodian or nominee appointed with
due
care by it under this Indenture.
(d) The
Indenture Trustee will not be liable for any action it takes or omits to take
in
good faith which it believes to be authorized or within its rights or powers
if
such action or omission by the Indenture Trustee does not constitute
negligence.
(e) The
Indenture Trustee may consult with counsel, and the advice or opinion of counsel
with respect to legal matters relating to this Indenture and the Notes will
be
full and complete authorization and protection from liability with respect
to
any action taken or not taken by the Indenture Trustee under this Indenture
in
good faith and in accordance with the advice or opinion of such
counsel.
(f) The
Indenture Trustee is under no obligation to (i) exercise any of the rights
or
powers vested in it by this Indenture or to expend or risk its own funds or
otherwise incur financial liability in the performance of its duties under
this
Indenture if it has reasonable grounds to believe that repayment of funds
advanced by it or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it or (ii) honor the request or direction
of any of the Noteholders pursuant to this Indenture unless such Noteholders
have offered to the Indenture Trustee reasonable security or indemnity
satisfactory to it from and against the reasonable costs, expenses,
disbursements, advances and liabilities that might be incurred by the Indenture
Trustee, or its agents, counsel, accountants and experts, in complying with
such
request or direction.
27
Section
6.3 Individual Rights of
Indenture Trustee.
The
Indenture Trustee, in its individual or any other capacity, may become the
owner
or pledgee of Notes and may otherwise deal with the Issuer or any of its
Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Note Paying Agent, Note Registrar, co-registrar or
co-paying agent under this Indenture may do the same with like
rights.
Section
6.4 Indenture
Trustee's
Disclaimer. The
Indenture Trustee (a)
will not be responsible for, and makes no representation or warranty as to,
the
validity or adequacy of this Indenture or the Notes and (b) will not be
accountable for the Issuer's
use of the proceeds from the Notes,
or responsible for any statement of the Issuer
in this Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than
the
Indenture Trustee's
certificate of
authentication.
Section
6.5 Notice
of Defaults. Within
90 days after any
Default under this Indenture of which the a Responsible Person of the Indenture
Trustee has knowledge, the Indenture Trustee will mail as described in Section
313(c) of the TIA to each Noteholder, notice of such Default, unless such
Default has been cured or waived, provided that (a) except in the case of a
Default in the payment of principal of or interest on any Note, the Indenture
Trustee may withhold such notice if and so long as a committee of its
Responsible Persons in good faith determines that the withholding of such notice
is in the interests of the Noteholders and (b) in the case of any Default
specified in Section 5.1(a)(iii), the Indenture Trustee will not give notice
to
the Noteholders until at least 30 days after the occurrence of such
Default.
Section
6.6 Reports
by Indenture Trustee.
(a) Upon
delivery to the Indenture Trustee by the Servicer of the information prepared
by
the Servicer pursuant to Section 3.4(a) of the Sale and Servicing Agreement
to
enable each Noteholder to prepare its federal and State income tax returns,
the
Indenture Trustee will deliver the relevant portions of such information to
each
Noteholder of record as of the most recent Record Date (which delivery may
be
made by making such information available to the Noteholders through the
Indenture Trustee's website, which initially is located at
xxx.xxxxxxxxxxxx.xxx).
(b) On
each Payment Date, the Indenture Trustee will deliver the Monthly Investor
Report to each Noteholder of record as of the most recent Record Date (which
delivery may be made by e-mail to the e-mail addresses in the Note Register
without need for confirmation of receipt or by making such report available
to
the Noteholders through the Indenture Trustee's website, which initially is
located at xxx.xxxxxxxxxxxx.xxx). On each Payment Date, the
Indenture Trustee will deliver the Monthly Investor Report to the Owner Trustee
(by e-mail without need for confirmation of receipt) to forward to the holder
of
the Residual Interest.
(c) If
required by Regulation AB and requested by the Depositor or the Servicer, the
Indenture Trustee will deliver to the Depositor, the Owner Trustee, and the
Servicer on or before March 1 of each year, beginning March 1, 2008, an
Officer's Certificate, dated as of December 31 of the preceding calendar year,
signed by a Responsible Person of the Indenture Trustee (i) to the effect that
(A) a review of the Indenture Trustee's activities during the preceding calendar
year (or, in the case of the first certificate, the portion of the preceding
calendar year, since the Closing Date) and of its performance under this
Indenture has been made under such Responsible Person's supervision and (B)
to
such Responsible Person's knowledge, based on such review, the Indenture Trustee
has fulfilled in all material respects all of its obligations under this
Indenture throughout such calendar year (or, in the case of the first
certificate, the portion of the preceding calendar year since the Closing Date),
or, if there has been a failure to fulfill any such obligation in any material
respect, specifically identifying each such failure known to such Responsible
Person and the nature and status of such failure and (ii) certifying to matters
related to the Indenture Trustee as required under Form 10-K under the Exchange
Act. If the Issuer is not required to file periodic reports under the
Exchange Act or otherwise required by law to file an Officer's Certificate
of
the Indenture Trustee as to compliance, such Officer's Certificate may be
delivered on or before April 1 of each calendar year.
28
(d) If
required under Regulation AB, the Indenture Trustee will:
(i) deliver
to the Depositor, the Owner Trustee and the Servicer, a report, dated as of
December 31 of the preceding calendar year, on its assessment of compliance
with
the applicable minimum servicing criteria regarding general servicing, cash
and
collection administration, investor remittances and reporting and pool asset
administration during the preceding calendar year, including disclosure of
any
material instance of non-compliance identified by the Indenture Trustee, as
required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB under the Securities Act.
(ii) cause
a firm of registered public accountants that is qualified and independent within
the meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver
to the Depositor, Owner Trustee and the Servicer an attestation report that
satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange
Act,
as applicable, on the assessment of compliance with servicing criteria with
respect to the prior calendar year. Such attestation report will be
addressed to the board of directors of the Servicer and to the Depositor and
Owner Trustee. Such attestation report will be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the
Exchange Act. The firm may render other services to the Indenture
Trustee, but the firm must indicate in each attestation report that it is
qualified and independent within the meaning of Rule 2-01 of Regulation S-X
under the Securities Act.
(iii) The
reports referred to in this Section 6.6(d) will be delivered on before March
1
of each year, beginning March 1, 2008 in a format suitable for filing with
the
Securities and Exchange Commission on XXXXX, unless the Issuer is not required
to file periodic reports under the Exchange Act or any other law, in which
case
the reports will be delivered on or before April 1 of each calendar year,
beginning April 1, 2008.
Section
6.7 Compensation and
Indemnity.
(a) The
Issuer will pay the Indenture Trustee as compensation for the Indenture
Trustee's services under this Indenture such fees as have been separately agreed
upon on the date of this Indenture between the Issuer and the Indenture
Trustee. The Indenture Trustee's compensation will not be limited by
any law on compensation of a trustee of an express trust. The Issuer
will reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by the Indenture Trustee, including costs of collection, and
the reasonable compensation, expenses and disbursements of the Indenture
Trustee's agents, counsel, accountants and experts, but excluding any expenses
incurred by the Indenture Trustee through the Indenture Trustee's willful
misconduct, bad faith or negligence (except for errors in
judgment).
(b) The
Issuer will cause the Administrator to indemnify, defend and hold harmless
the
Indenture Trustee, and its respective officers, directors, employees and agents,
from and against any and all costs, expenses, losses, damages, claims and
liabilities (including the reasonable compensation, expenses and disbursements
of the Indenture Trustee's agents, counsel, accountants and experts) incurred
by
it in connection with the administration of and the performance of its duties
under this Indenture, 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 this Indenture,
but excluding any cost, expense, loss, damage, claim or liability (i) incurred
by the Indenture Trustee through the Indenture Trustee's willful misconduct,
bad
faith or negligence (except for errors in judgment) or (ii) arising from the
Indenture Trustee's breach of any of its representations or warranties set
forth
in this Indenture.
29
(c) Promptly
upon receipt by the Indenture 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 6.7(b), notify the Issuer and the Administrator of the
commencement of such Proceeding. Failure by the Indenture Trustee to
so notify the Issuer and the Administrator will not relieve the Issuer or the
Administrator of its obligations under this Section 6.7, provided that neither
the Issuer nor the Administrator has been materially prejudiced by such failure
to so notify and notice is given within 180 days of a Responsible Person of
the
Indenture Trustee learning of such Proceeding. The Issuer, or, if
Issuer 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 Issuer or the Administrator,
as applicable, and such Indemnified Person, which approvals will not be
unreasonably withheld, delayed or conditioned. After notice from the
Issuer or the Administrator, as applicable, to the Indemnified Person of the
intention of the Issuer 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 Issuer or the Administrator, as
applicable, so assumes the defense of such Proceeding in a manner reasonably
satisfactory to the Indemnified Person, neither the Issuer 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 Issuer or the
Administrator, as applicable, on one hand, and an Indemnified Person, on the
other hand, in which case the Issuer or the Administrator, will pay for the
separate counsel to the Indemnified Person.
(d) The
payment obligations of the Issuer and the Administrator, to the Indenture
Trustee pursuant to this Section 6.7 will survive the resignation or removal
of
the Indenture Trustee and the discharge of this Indenture. Expenses
incurred by the Indenture Trustee after the occurrence of a Default specified
in
Section 5.1(a)(iv) are intended to constitute expenses of administration under
Title 11 of the United States Code or any other applicable federal or State
bankruptcy, insolvency or similar law.
Section
6.8 Replacement of Indenture
Trustee.
(a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, will become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section
6.8. Subject to the preceding sentence, the Indenture Trustee may
resign by notifying the Issuer. The Noteholders of at least a
majority in Note Balance of the Controlling Class may remove the Indenture
Trustee without cause by notifying the Indenture Trustee and the Issuer and
may
appoint a successor Indenture Trustee.
(b) The
Issuer must remove the Indenture Trustee if:
(i) the
Indenture Trustee fails to comply with Section 6.11;
(ii) an
Insolvency Event occurs with respect to the Indenture Trustee;
(iii) a
receiver or other public officer takes charge of the Indenture Trustee or its
property; or
(iv) the
Indenture Trustee becomes legally unable to act or otherwise incapable of acting
as Indenture Trustee.
30
(c) If
the Indenture Trustee resigns or is removed or if a vacancy exists in the office
of Indenture Trustee for any reason, the Issuer must appoint a successor
Indenture Trustee promptly.
(d) Any
successor Indenture Trustee will have all the rights, powers, duties and
obligations of the Indenture Trustee under this Indenture. The Issuer
will continue to pay all amounts owed to the retiring Indenture Trustee in
accordance with Section 8.2 following the retiring Indenture Trustee's
resignation or removal until all such amounts are paid. The successor
Indenture Trustee will deliver a notice of its succession to the
Noteholders. The retiring Indenture Trustee will promptly transfer
all property held by it as Indenture Trustee to the successor Indenture
Trustee.
(e) If
a successor Indenture Trustee does not take office within 60 days after the
retiring Indenture Trustee tenders its resignation or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of at least a majority in
Note
Balance of the Controlling Class may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(f) Notwithstanding
the replacement of the retiring Indenture Trustee pursuant to this Section
6.8,
any obligations of the Issuer and the Administrator owing to the retiring
Indenture Trustee under Section 6.7 up to the date of removal will continue
for
the benefit of the retiring Indenture Trustee.
Section
6.9 Successor Indenture
Trustee by Merger.
(a) If
the Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association will be the successor Indenture Trustee
so
long as such corporation or banking association is otherwise qualified and
eligible under Section 6.11. The Indenture Trustee will promptly
notify the Issuer, the Servicer and the Rating Agencies of any such
transaction.
(b) If,
at the time any such successor by merger, conversion or consolidation to the
Indenture Trustee succeeds to the trusts created by this Indenture, any of
the
Notes have been authenticated but not delivered, such successor may adopt the
certificate of authentication of any predecessor Indenture Trustee and deliver
such Notes so authenticated. If at such time any of the Notes have
not been authenticated, any successor to the Indenture Trustee may authenticate
such Notes either in the name of any predecessor Indenture Trustee or in the
name of such successor Indenture Trustee. In all such cases, such
certificates will have the same force and effect provided for anywhere in the
Notes or in this Indenture as the certificate of the predecessor Indenture
Trustee.
Section
6.10 Appointment of Separate
Indenture Trustee or Co-Indenture Trustee.
(a) For
the purpose of meeting any legal requirement of any jurisdiction in which any
part of the Collateral may at the time be located, after delivering written
notice to the Issuer and the Servicer, the Indenture Trustee may appoint one
or
more Persons to act as a separate trustee or separate trustees, or co-trustee
or
co-trustees, of all or any part of the Issuer, and to vest in such Persons,
in
such capacity and for the benefit of the Secured Parties, such title to the
Collateral, or any part of the Collateral, and, subject to this Section 6.10,
such rights, powers, duties and obligations as the Indenture Trustee may
consider necessary or desirable. No separate trustee or co-trustee
will be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Noteholders of the appointment of any separate
trustee or co-trustee will be required under Section 6.8.
(b) Every
separate trustee and co-trustee will, to the extent permitted by law, be
appointed and act subject to the following:
31
(i) all
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee will be conferred or imposed upon and exercised or performed by the
Indenture Trustee, or the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
will not be authorized to act separately without the Indenture 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 Indenture Trustee
will
be 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
Collateral or any portion of the Collateral in any such jurisdiction) will
be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Indenture Trustee;
(ii) no
trustee will be personally liable by reason of any act or omission of any other
trustee under this Indenture; and
(iii) the
Indenture Trustee may accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any
notice, request or other writing given to the Indenture Trustee will be deemed
to have been given to each appointed separate trustee and co-trustee, as
effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee will refer to this Indenture and the
conditions of this Section 6.10. 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 Indenture Trustee or separately, as may be provided in such instrument
of appointment, subject to this Indenture. Every such instrument will
be filed with the Indenture Trustee.
(d) Any
separate trustee or co-trustee may appoint the Indenture Trustee as its agent
or
attorney-in-fact with power and authority, to the extent not prohibited by
law,
to do any lawful act under or in respect of this Indenture 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 Indenture
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
6.11 Eligibility;
Disqualification.
(a) The
Indenture Trustee must satisfy the requirements of Section 310(a) of the TIA
and
must comply with Section 310(b) of the TIA. The Indenture Trustee or
its parent must have a combined capital and surplus of at least $50,000,000
as
set forth in its most recent annual published report of condition and must
have
a long-term debt rating of investment grade by each of the Rating Agencies
or
must otherwise be acceptable to each of the Rating Agencies. Within
10 days after the Indenture Trustee fails to satisfy any of the requirements
set
forth in this Section 6.11(a), the Indenture Trustee will notify the Issuer
and
the Servicer of such failure.
(b) Within
90 days after the occurrence of an Event of Default that has not been cured
or
waived, unless authorized by the Securities and Exchange Commission, the
Indenture Trustee will resign with respect to the Class A Notes, the Class
B
Notes, the Class C Notes and/or the Class D Notes in accordance with Section
6.8, and the Issuer will appoint a successor Indenture Trustee for any or all
of
such Class A Notes, Class B Notes, Class C Notes and/or Class D Notes, as
applicable, so that there will be separate Indenture Trustees for the Class
A
Notes, Class B Notes, the Class C Notes and the Class D Notes. If the
Indenture Trustee fails to comply with the terms of the preceding sentence,
the
Indenture Trustee must comply with TIA Section 310(b)(ii) and
(iii).
32
(c) If
a successor Indenture Trustee is appointed with respect to any of the Class
A
Notes, Class B Notes, Class C Notes or Class D Notes pursuant to this Section
6.11, the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee will execute an indenture supplemental to this
Indenture. Such supplemental indenture will contain:
(i) provisions
by which the successor Indenture Trustee accepts its appointment;
(ii) provisions
necessary or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, duties and obligations of the retiring
Indenture Trustee with respect to the Notes to which the appointment of such
successor Indenture Trustee relates;
(iii) if
the retiring Indenture Trustee is not retiring with respect to all of the Notes,
provisions necessary or desirable to confirm that all the rights, powers, duties
and obligations of the retiring Indenture Trustee with respect to the Notes
as
to which the retiring Indenture Trustee is not retiring continue to be vested
in
the Indenture Trustee; and
(iv) provisions
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Indenture Trustee.
Nothing
in this Indenture or in such supplemental indenture will constitute such
Indenture Trustees co-trustees of the same trust and each such Indenture Trustee
will be a trustee of a trust or trusts under this Indenture separate and apart
from any trust or trusts under this Indenture administered by any other
Indenture Trustee. The indenture supplement will become effective
upon the removal of the retiring Indenture Trustee.
Section
6.12 Preferential Collection
of Claims Against Issuer.
The
Indenture Trustee will comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. An
Indenture Trustee who has resigned or been removed will be subject to Section
311(a) of the TIA.
Section
6.13 Audits
of the Indenture
Trustee. The
Indenture Trustee
agrees that, with reasonable prior notice, it will permit any authorized
representative of the Servicer or the Administrator, during the Indenture
Trustee's
normal business hours, to examine and
audit the books of account, records, reports and other documents and materials
of the Indenture Trustee relating to (a) the performance of the Indenture
Trustee's
obligations under this Indenture, (b)
any payments of fees and expenses of the Indenture Trustee in connection with
such performance and (c) any claim made by the Indenture Trustee under this
Indenture. In addition, the Indenture Trustee will permit such
representatives to make copies and extracts of any such books and records and
to
discuss the same with the Indenture 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
Indenture. The Indenture Trustee will maintain all such pertinent
books, records, reports and other documents and materials for a period of 2
years after the termination of its obligations under this
Indenture.
Section
6.14 Representations and
Warranties of the Indenture Trustee The Indenture Trustee
represents and warrants to the Issuer as of the Closing Date:
(a) Organization
and Qualification. The Indenture Trustee is a banking corporation
duly organized, validly existing and in good standing under the laws of the
State of New York. The Indenture Trustee is qualified as a foreign
banking corporation in good standing and has obtained all necessary licenses
and
approvals in all jurisdictions in which the ownership or lease of its properties
or the conduct of its activities requires such qualification, license or
approval, unless the failure to obtain such qualifications, licenses or
approvals would not reasonably be expected to have a material adverse effect
on
the Indenture Trustee's ability to perform its obligations under this Indenture
or the other Basic Documents to which it is a party.
33
(b) Power,
Authorization and Enforceability. The Indenture Trustee has the
power and authority to execute deliver and perform the terms of this
Indenture. The Indenture Trustee has authorized the execution,
delivery and performance of the terms of this Indenture. This
Indenture is the legal, valid and binding obligation of the Indenture Trustee
enforceable against the Indenture Trustee, except as may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general equitable
principles.
(c) No
Conflicts and No Violation. The execution and delivery by the
Indenture Trustee of this Indenture, the consummation by the Indenture Trustee
of the transactions contemplated by this Indenture and the compliance by
the Indenture Trustee with this Indenture will not (i) violate any federal
or
New York State law, governmental rule or regulation governing the banking or
trust powers of the Indenture Trustee or any judgment or order binding on it
or
(ii) conflict with, result in a breach of, or constitute (with or without notice
or lapse of time or both) a default under its charter documents or by-laws
or
any indenture, mortgage, deed of trust, loan agreement, guarantee or similar
agreement or instrument under which the Indenture Trustee is a debtor or
guarantor or (iii) violate any law or, to the Indenture Trustee's knowledge,
any
order, rule, or regulation applicable to the Indenture Trustee of any court
or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Indenture 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 Indenture
Trustee's ability to perform its obligations under this Indenture.
(d) No
Proceedings. To the Indenture 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 Indenture Trustee or its
properties: (i) asserting the invalidity of any of this Indenture or the Sale
and Servicing Agreement (ii) seeking to prevent the issuance of the Notes or
the
consummation of any of the transactions contemplated by any of the Basic
Documents, (iii) seeking any determination or ruling that would reasonably
be
expected to have a material adverse effect on the Indenture Trustee's ability
to
perform its obligations under, or the validity or enforceability of, this
Indenture.
(e) Eligibility. The
Indenture Trustee satisfies the requirements of Section 310(a) of the
TIA. The Indenture Trustee or its parent has a combined capital and
surplus of at least $50,000,000 as set forth in its most recent annual published
report of condition.
(f) Information
Provided by the Indenture Trustee. The information provided by
the Indenture Trustee in any certificate delivered by a Responsible Person
of
the Indenture Trustee is true and correct in all material respects.
Section
6.15 Duty
to Update Disclosure. The Indenture 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 Indenture Trustee
or actions taken by the Indenture 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 The Bank of New
York that are material to Noteholders) of Form 10-D under the Exchange Act
within 5 days of such occurrence or (ii) the Depositor reasonably requests
of
the Indenture Trustee that the Depositor, in good faith, believes is necessary
to comply with Regulation AB within 5 days of such request or (B) (i) is
required to be disclosed under Item 5 (submission of matters to a vote of
Noteholders) of Form 10-D under the Exchange Act within 5 days of a Responsible
Person of the Indenture Trustee becoming aware of such submission, (ii) is
required to be disclosed under Item 6.02 (resignation, removal, replacement
or
substitution of The Bank of New York as Indenture Trustee) or Item 6.04 (failure
to make a distribution when required) of Form 8-K under the Exchange Act within
2 days of a Responsible Person of the Indenture Trustee becoming aware of such
occurrence or (iii) causes the information provided by the Indenture Trustee
in
any certificate delivered by a Responsible Person of the Indenture Trustee
to be
untrue or incorrect in any material respect or is necessary to make the
statements provided by the Indenture Trustee in light of the circumstances
in
which they were made not misleading within 5 days of a Responsible Person of
the
Indenture Trustee becoming aware thereof.
34
ARTICLE
VII
NOTEHOLDERS'
LISTS AND REPORTS
Section
7.1 Names
and Addresses of
Noteholders. If
the Indenture Trustee is
not the Note Registrar, the Issuer
will furnish a list of the names and
addresses of the Noteholders of any Definitive Notes to the Indenture Trustee
(a) not more than 5 days after each Record Date, as of such Record Date and
(b)
not more than 30 days after receipt by the Issuer
of a request from the Indenture
Trustee, as of a date not more than 10 days before the time such list is
furnished. If the Indenture Trustee is the Note Registrar, the
Indenture Trustee, upon the request of the Owner Trustee, will furnish within
10
days to the Owner Trustee a list of Noteholders of all Book-Entry Notes as
of
the date specified by the Owner Trustee.
Section
7.2 Preservation of
Information; Communications to Noteholders.
(a) The
Indenture Trustee will preserve, in as current a form as is reasonably
practicable, the names and addresses of the Noteholders contained in the most
recent list furnished to the Indenture Trustee pursuant to Section 7.1 and
the
names and addresses of Noteholders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it pursuant to Section 7.1 upon receipt of a new
list.
(b) Noteholders
may communicate pursuant to Section 312(b) of the TIA with other Noteholders
with respect to their rights under this Indenture or under the
Notes.
(c) The
Issuer, the Indenture Trustee and the Note Registrar will have the protection
of
Section 312(c) of the TIA.
Section
7.3 Reports
by Issuer.
(a)
The Issuer will:
(i) file
with the Indenture Trustee, within 15 days after the Issuer is required to
file
the same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Securities and Exchange Commission
may
prescribe) that the Issuer is required to file with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file
with the Indenture Trustee and the Securities and Exchange Commission such
additional information, documents and reports with respect to compliance by
the
Issuer with the conditions and covenants of this Indenture, as may be prescribed
by the Securities and Exchange Commission; and
35
(iii) supply
to the Indenture Trustee such information, documents and reports (or summaries)
required to be filed by the Issuer pursuant to Section 7.3(a)(i) and (ii) as
may
be required by rules and regulations prescribed by the Securities and Exchange
Commission.
(b) The
Indenture Trustee will mail as described in TIA Section 313(c) to all
Noteholders the information, documents and reports (or summaries) supplied
to
the Indenture Trustee pursuant to Section 7.3(a).
(c) Unless
the Issuer otherwise determines, the fiscal year of the Issuer will be the
calendar year.
Section
7.4 Reports
by Indenture Trustee.
(a) Within
90 days after each April 15, beginning April 15, 2008, the Indenture Trustee
will prepare and mail to each Noteholder a report dated as of such April 15
that
complies with Section 313(a) of the TIA, but only if such report is required
pursuant Section 313(a) of the TIA. The Indenture Trustee will also
prepare and mail to Noteholders any report required pursuant to Section 313(b)
of the TIA. Any report mailed to the Noteholders pursuant to this
Section 7.4(a) will be mailed in compliance with Section 313(c) of the
TIA.
(b) The
Indenture Trustee will file with the Securities and Exchange Commission and
any
stock exchange on which the Notes are listed a copy of each report delivered
pursuant to Section 7.4(a) at the time of its mailing to
Noteholders. The Issuer will notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
ARTICLE
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.1 Collection of
Money
(a) Except
as otherwise provided in this Indenture, the Indenture Trustee may demand
payment or delivery of, and will receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all money
and other property payable to or receivable by the Indenture Trustee pursuant
to
this Indenture and the Sale and Servicing Agreement. The Indenture
Trustee will apply all such money received by it as provided in this Indenture
and the Sale and Servicing Agreement.
(b) The
Issuer, or the Administrator on its behalf, will direct each Swap Counterparty
to remit any Net Swap Receipts and any Swap Termination Receipts payable to
the
Issuer to the Collection Account; provided, however, that upon direction of
the
Administrator, the Indenture Trustee may apply a part or all of any Swap
Termination Receipts as an initial payment to a replacement Swap
Counterparty.
Section
8.2 Trust
Accounts; Distributions and Disbursements.
(a) On
or before the Closing Date, the Issuer will cause the Servicer or the Depositor,
as applicable, to establish the Trust Accounts as provided in Section 4.1 of
the
Sale and Servicing Agreement.
(b) On
or before each Payment Date, the Indenture Trustee will withdraw all amounts
required to be withdrawn from the Reserve Account and deposit them into the
Collection Account pursuant to Section 4.4 of the Sale and Servicing
Agreement.
36
(c) As
long as the Indenture Trustee has received the Monthly Investor Report by the
related Determination Date, the Indenture Trustee (based on the information
contained in the most recent Monthly Investor Report) will make the following
withdrawals from the Collection Account and make deposits and payments on each
Payment Date, to the extent of Available Funds on deposit in the Collection
Account with respect to such Payment Date, in the following order of priority
(pro rata to the Persons within each priority level based on the
amounts due except as otherwise specified):
(i) first,
to the payment of all amounts, including indemnities, then due to the Indenture
Trustee and the Owner Trustee to the extent not paid by the Depositor or
Administrator, up to a maximum of $150,000 per year;
(ii) second,
to the Servicer, the Servicing Fee and all unpaid Servicing Fees from preceding
Collection Periods;
(iii) third,
to the Swap Counterparties, any Net Swap Payments due;
(iv) fourth,
to the Swap Counterparties, any Senior Swap Termination Payments
due;
(v) fifth,
to the Noteholders of Class A Notes, interest due on the Class A Notes, pro
rata based on the Note Balances of the Class A Notes as of the preceding
Payment Date;
(vi) sixth,
to the Principal Payment Account, the First Priority Principal
Payment;
(vii) seventh,
to the Noteholders of Class B Notes, the Accrued Note Interest for the Class
B
Notes;
(viii) eighth,
to the Principal Payment Account, the Second Priority Principal
Payment;
(ix) ninth,
to the Noteholders of Class C Notes, the Accrued Note Interest for the Class
C
Notes;
(x) tenth,
to the Principal Payment Account, the Third Priority Principal
Payment;
(xi) eleventh,
to the Noteholders of Class D Notes, the Accrued Note Interest for the Class
D
Notes;
(xii) twelfth,
to the Reserve Account, the amount required to reinstate the amount in the
Reserve Account up to the Specified Reserve Balance;
(xiii) thirteenth,
to the Principal Payment Account, the Regular Principal Payment;
(xiv) fourteenth,
to the Swap Counterparties, any Subordinated Swap Termination Payments
due;
37
(xv) fifteenth,
to the payment of all amounts due to the Indenture Trustee and the Owner Trustee
to the extent not paid by the Depositor or Administrator or pursuant to Section
8.2(c)(i) on such Payment Date; and
(xvi) sixteenth,
to the Trust Distribution Account (or if the Trust Distribution Account has
not
been established, to the holder of the Residual Interest), any funds remaining
on deposit in the Collection Account with respect to the Collection Period
preceding such Payment Date.
(d) On
each Payment Date, the Indenture Trustee (based on the information contained
in
the most recent Monthly Investor Report) will withdraw the funds on deposit
in
the Principal Payment Account and make deposits and payments in the following
order of priority, in each case, applied ratably in accordance with the Note
Balance of the Notes of such Class:
(i) first,
to the Noteholders of the Class A-1 Notes in payment of principal until the
Note
Balance of the Class A-1 Notes has been reduced to zero;
(ii) second,
to the Noteholders of the Class A-2a Notes and the Noteholders of the Class
A-2b
Notes, pro rata based on their respective Note Balances, in payment of
principal until the aggregate Note Balance of the Class A-2a Notes and the
Class
A-2b Notes has been reduced to zero;
(iii) third,
to the Noteholders of the Class A-3a Notes and the Noteholders of the Class
A-3b
Notes, pro rata based on their respective Note Balances, in payment of
principal until the aggregate Note Balance of the Class A-3a Notes and the
Class
A-3b Notes has been reduced to zero;
(iv) fourth,
to the Noteholders of the Class A-4a Notes and the Noteholders of the Class
A-4b
Notes, pro rata based on their respective Note Balances, in payment of
principal until the aggregate Note Balance of the Class A-4a Notes and the
Class
A-4b Notes has been reduced to zero;
(v) fifth,
to the Noteholders of the Class B Notes in payment of principal until the Note
Balance of the Class B Notes has been reduced to zero;
(vi) sixth,
to the Noteholders of the Class C Notes in payment of principal until the Note
Balance of the Class C Notes has been reduced to zero;
(vii) seventh,
to the Noteholders of the Class D Notes in payment of principal until the Note
Balance of the Class D Notes has been reduced to zero; and
(viii) eighth,
to the Trust Distribution Account (or if the Trust Distribution Account has
not
been established, to the holder of the Residual Interest), any funds remaining
on deposit in the Principal Payment Account.
(e) Notwithstanding
anything in this Indenture to the contrary, if the Notes are accelerated (A)
following an Event of Default specified in Section 5.1(a)(i), (ii) or (iv)
or
(B) following an Event of Default specified in Section 5.1(a)(iii) and
liquidation of the Collateral in accordance with Section 5.6(a)(iv), then on
each Payment Date following the Collection Period during which such Event of
Default or liquidation occurs, the Indenture Trustee (based on the information
contained in the most recent Monthly Investor Report) will make the following
withdrawals from the Bank Accounts and make payments and distributions on each
Payment Date, to the extent of funds on deposit in the Bank Accounts with
respect to the Collection Period preceding such Payment Date, in the following
order of priority (pro rata to the Persons within each priority level
based on the amounts due except as otherwise specified):
38
(i) first,
to the payment of all amounts due to the Indenture Trustee and the Owner
Trustee;
(ii) second,
to the Servicer for due and unpaid Servicing Fees;
(iii) third,
to the Swap Counterparties, any Net Swap Payments due;
(iv) fourth,
to the Swap Counterparties, any Senior Swap Termination Payments
due;
(v) fifth,
to the Noteholders of Class A Notes, interest due on the Class A Notes, pro
rata based on the Note Balances of the Class A Notes as of the preceding
Payment Date;
(vi) sixth,
to the Noteholders of the Class A-1 Notes in payment of principal until the
Note
Balance of the Class A-1 Notes is reduced to zero;
(vii) seventh,
to the Noteholders of the Class A-2a Notes and the Noteholders of the Class
A-2b
Notes, in payment of principal until the Note Balance of the Class A-2a Notes
and the Class A-2b Notes is reduced to zero;
(viii) eighth,
to the Noteholders of the Class A-3a Notes and the Noteholders of the Class
A-3b
Notes, in payment of principal until the Note Balance of the Class A-3a Notes
and the Class A-3b Notes is reduced to zero;
(ix) ninth,
to the Noteholders of the Class A-4a Notes and the Noteholders of the Class
A-4b
Notes, in payment of principal until the Note Balance of the Class A-4a Notes
and the Class A-4b Notes is reduced to zero;
(x) tenth,
to the Noteholders of Class B Notes, the Accrued Note Interest for the Class
B
Notes;
(xi) eleventh,
to the Noteholders of the Class B Notes in payment of principal until the Note
Balance of the Class B Notes is reduced to zero;
(xii) twelfth,
to the Noteholders of Class C Notes, the Accrued Note Interest for the Class
C
Notes;
(xiii) thirteenth,
to the Noteholders of the Class C Notes in payment of principal until the Note
Balance of the Class C Notes is reduced to zero;
(xiv) fourteenth,
to the Noteholders of Class D Notes, the Accrued Note Interest for the Class
D
Notes;
(xv) fifteenth,
to Noteholders of the Class D Notes in payment of principal until the Note
Balance of the Class D Notes is reduced to zero;
39
(xvi) sixteenth,
to the Swap Counterparties, any Subordinated Swap Termination Payments due;
and
(xvii) seventeenth,
to the Trust Distribution Account (or if the Trust Distribution Account has
not
been established, to the holder of the Residual Interest), any money or property
remaining after payment in full of the amounts described in Section 8.2(e)(i)
through (xvi).
(f) Each
of (i) the subordination of interest payments to the Noteholders of the Class
B
Notes to the payment of principal to the Noteholders of the Class A Notes,
(ii)
the subordination of interest payments to the Noteholders of the Class C Notes
to the payment of principal to the Noteholders of the Class A Notes and the
Class B Notes and (iii) the subordination of interest payments to the
Noteholders of the Class D Notes to the payment of principal to the Noteholders
of the Class A Notes, the Class B Notes and the Class C Notes pursuant to
Section 8.2(c) is deemed a subordination agreement within the meaning of Section
510(a) of the Bankruptcy Code.
Section
8.3 General
Provisions Regarding Bank Accounts.
(a) The
Indenture Trustee will not be liable by reason of any insufficiency in any
of
the Bank Accounts resulting from any loss on any Permitted Investment included
in the Bank Accounts, except for losses attributable to the Indenture Trustee's
failure to make payments on such Permitted Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as
trustee. In addition, the Indenture Trustee has no duty to monitor
the activities of any Qualified Institution or Qualified Trust Institution
(unless such Qualified Institution or Qualified Trust Institution is also the
Indenture Trustee) and will not be liable for the actions or inactions of any
Qualified Institution or Qualified Trust Institution (unless such Qualified
Institution or Qualified Trust Institution is also the Indenture
Trustee).
(b) A
Responsible Person of the Indenture Trustee will provide notice to the Qualified
Institution or Qualified Trust Institution maintaining the Reserve Account
and
the Collection Account (if not the Indenture Trustee) if an Event of Default
has
occurred and is continuing with respect to the Notes.
Section
8.4 Release
of Collateral.
(a) The
Indenture Trustee will release property from the lien of this Indenture only
upon receipt of an Issuer Request accompanied by an Officer's Certificate and
an
Opinion of Counsel meeting the requirements of Section 11.1.
(b) To
facilitate the Servicer's servicing of the Receivables pursuant to the Sale
and
Servicing Agreement, the Indenture Trustee will be deemed to release, and does
release, and each Noteholder or Note Owner by its acceptance of a Note or a
beneficial interest in a Note respectively acknowledges that the Indenture
Trustee will release any and all liens and other rights and interests it
possesses or may possess from time to time, without further action of the
parties, in, to and under:
(i) each
Receivable and all proceeds of such Receivable, effective on the date on which
a
Purchase Amount with respect to such Receivable is deposited into the Collection
Account;
(ii) each
Receivable and the proceeds of such Receivable and the rights of Ford Credit
(individually or as Servicer) under any contract or agreement for the sale
of
such Receivable in accordance with Section 3.3 of the Sale and Servicing
Agreement, effective immediately prior to the date on which such contract or
agreement arises (provided that the Servicer will receive and apply all proceeds
of such sale in accordance with Section 3.3 of the Sale and Servicing
Agreement); and
40
(iii) each
Receivable and the proceeds of such Receivable, effective upon the date (if
any)
on which such Receivable became a Liquidated Receivable and the proceeds of
a
sale by auction or other disposition of the related Financed Vehicle have been
received and applied.
(c) Upon
request by the Servicer or the Issuer, the Indenture Trustee will execute
instruments and authorize or file termination statements to release property
from the lien of this Indenture or convey the Indenture Trustee's interest
in
the same to effect the transfers of Receivables permitted by Sections 8.4 or
10.1. No party relying upon an instrument or authorization executed
by the Indenture Trustee as provided in this Article VIII is required to
ascertain the Indenture Trustee's authority, inquire into the satisfaction
of
any conditions precedent or require evidence as to the application of any
monies.
(d) The
Indenture Trustee, at such time as there are no Notes Outstanding, all sums
due
from the Issuer to the Indenture Trustee pursuant to Section 6.7 have been
paid
in full and all payments due under the Interest Rate Swaps (including any Swap
Termination Payments) have been paid in full, will release the Collateral from
the lien of this Indenture and release to the Issuer or any other Person
entitled to such funds, the funds then on deposit in the Bank Accounts under
this Indenture. The Indenture Trustee will release property from the
lien of this Indenture pursuant to this Section 8.4(d) only upon receipt of
an
Issuer Request accompanied by an Officer's Certificate and an Opinion of Counsel
and (if required by the TIA) Independent Certificates in accordance with
Sections 314(c) and 314(d)(1) of the TIA meeting the requirements of Section
11.1.
41
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.1 Supplemental Indentures
Without Consent of Noteholders.
(a) Without
the consent of the Noteholders but with prior notice by the Issuer to the Rating
Agencies, the Issuer and the Indenture Trustee (when directed by Issuer Order)
may enter into one or more indentures supplemental to this Indenture (which
will
conform to the provisions of the Trust Indenture Act as in force at the date
of
the execution of any such indenture supplemental to this Indenture) for any
of
the following purposes:
(i) to
correct or amplify the description of any property subject to the lien of this
Indenture, or better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subjected to the lien of this Indenture,
or to subject additional property to the lien of this Indenture;
(ii) to
evidence the succession, in compliance with this Indenture, of another Person
to
the Issuer, and the assumption by any such successor of the covenants of the
Issuer in this Indenture and in the Notes;
(iii) to
add to the covenants of the Issuer, for the benefit of the Noteholders, or
to
surrender any right or power conferred upon the Issuer in this
Indenture;
(iv) to
convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;
(v) to
cure any ambiguity, to correct or supplement any provision in this Indenture
or
in any supplemental indenture that may be inconsistent with any other provision
in this Indenture or in any supplemental indenture or to add provisions which
are not inconsistent with the provisions of this Indenture so long as such
action does not materially adversely affect the interests of the Noteholders
or
the Swap Counterparties;
(vi) to
evidence the acceptance of the appointment under this Indenture of a successor
trustee with respect to the Notes and to add to or change any of the provisions
of this Indenture as will be necessary to facilitate the administration of
the
trusts under this Indenture by more than one trustee, pursuant to Article VI;
or
(vii) to
modify, eliminate or add to the provisions of this Indenture as necessary to
effect the qualification of this Indenture under the TIA and to add to this
Indenture such other provisions as may be required by the TIA.
All
supplemental indentures pursuant to this Section 9.1(a) will be in form
reasonably satisfactory to the Indenture Trustee. The Indenture
Trustee is authorized to join in the execution of any such supplemental
indenture and to make any further reasonably appropriate agreements and
stipulations that may be contained in such supplemental indenture.
(b) The
Issuer and the Indenture Trustee, when directed by Issuer Order, may enter,
without the consent of any of the Noteholders, into an indenture or indentures
supplemental to this Indenture for the purpose of adding any provisions to,
or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner (other than the modifications set forth in Section
9.2) the rights of the Noteholders under this Indenture or for the purpose
of
issuing additional securities in exchange for all or a portion of the Residual
Interest, subject to the following conditions:
42
(i) the
Issuer delivers, or causes the Administrator to deliver to the Indenture Trustee
an Officer's Certificate to the effect that such amendment will not have a
material adverse effect on the Notes;
(ii) the
Issuer delivers an Opinion of Counsel to the Indenture 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) with respect to the issuance of additional
securities only, adversely affect the treatment of the Notes as debt for U.S.
federal income tax purposes;
(iii) each
Rating Agency provides Rating Agency Confirmation with respect to such
amendment; and
(iv) with
respect to the issuance of additional securities only, (A)
payments of interest on such additional securities on each Payment Date will
be
subordinate to payments of interest on the Notes, (B) payments of principal
of
such additional securities will be subordinate to payments of principal on
the
Notes and (C) either (x) such additional securities are registered under the
Securities Act or (y) the Issuer delivers an Opinion of Counsel to the Indenture
Trustee to the effect that the offer, sale and delivery of such additional
securities do not require registration under the Securities Act.
Section
9.2 Supplemental Indentures
with Consent of Noteholders.
(a) The
Issuer and the Indenture Trustee, when directed by Issuer Order, may enter,
with
the consent of the Noteholders of a majority of the Note Balance of the
Controlling Class, into an indenture or indentures supplemental to this
Indenture for the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture or modifying in any
manner the rights of the Noteholders under this Indenture subject to the
following conditions:
(i) the
Issuer delivers an Opinion of Counsel to the Indenture 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 or (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;
(ii) each
Rating Agency provides Rating Agency Confirmation with respect to such
amendment; and
(iii) such
action does not materially adversely affect the interests of the Swap
Counterparties.
No
such
supplemental indenture, without the consent of each Noteholder of each
Outstanding Note adversely affected by such supplemental indenture,
will:
(iv) modify
or alter Section 9.1 or this Section 9.2;
43
(v) change
(A) the Final Scheduled Payment Date or the date of payment of any installment
of principal of or interest on any Note, (B) the principal amount of or interest
rate on any Note, (C) the price at which the Notes may be redeemed or the
percentage of the Initial Pool Balance at which the Servicer may exercise its
option to purchase the Trust Property pursuant to Section 8.1 of the Sale and
Servicing Agreement, (D) the provisions of this Indenture relating to the
priority of payments on the Notes or relating to the application of collections
on, or the proceeds of the sale of, the Collateral to payment of principal
of or
interest on the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest on any Note is payable, or (E)
impair the right of Noteholders to institute suits to enforce this
Indenture;
(vi) reduce
the percentage of the Note Balance of the Notes Outstanding or the Controlling
Class required for any action;
(vii) modify
or alter (A) the proviso to the definition of "Outstanding" or (B) the
definition of "Controlling Class";
(viii) modify
the calculation of the amount of any payment of interest or principal due on
any
Note on any Payment Date; or
(ix) permit
the creation of any lien ranking prior or equal to the lien of this Indenture
with respect to any part of the Collateral other than Permitted Liens, or except
as permitted by this Indenture or the other Basic Documents, release the lien
of
this Indenture with respect to any part of the Collateral.
(b) It
will not be necessary for any Act of Noteholders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it
will
be sufficient if such Act of Noteholders approves the substance of such proposed
supplemental indenture.
Section
9.3 Execution
of Supplemental
Indentures. In
executing, or permitting
the additional trusts created by, any supplemental indenture permitted by this
Article IX or the modification of the trusts created by this Indenture, the
Indenture Trustee will be entitled to receive, and subject to Sections 6.1
and
6.2, will be fully protected in relying upon, an Opinion of Counsel to the
effect that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent to the execution
and delivery of such supplemental indenture have been satisfied. The
Indenture Trustee may, but is not obligated to, enter into any such supplemental
indenture that affects the Indenture Trustee's
own rights, powers, duties,
obligations, liabilities or immunities under this Indenture or
otherwise.
Section
9.4 Effect
of Supplemental
Indenture. Upon
the execution of any
supplemental indenture pursuant to this Article IX, this Indenture will be
modified and amended in accordance with such supplemental indenture, and such
supplemental indenture will be part of this Indenture for any and all
purposes. Every Noteholder of Notes authenticated and delivered
before or after such supplemental indenture will be bound by such supplemental
indenture.
Section
9.5 Conformity
with Trust Indenture
Act. Every
amendment of this
Indenture and every supplemental indenture executed pursuant to this Article
IX
will conform to the requirements of the Trust Indenture Act as then in effect
so
long as this Indenture is qualified under the Trust Indenture
Act.
Section
9.6 Reference
in Notes to Supplemental
Indentures. Notes
authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article IX may, and if required by the Indenture Trustee will, bear a notation
in form approved by the Indenture Trustee as to any matter provided for in
such
supplemental indenture. If the Issuer
or the Indenture Trustee so determine,
new Notes so modified as to conform, in the opinion of the Indenture Trustee
and
the Issuer,
to any such supplemental indenture
may be prepared and executed by the Issuer
and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
44
ARTICLE
X
REDEMPTION
OF NOTES
Section
10.1 Redemption.
(a) The
Notes are subject to redemption in whole, but not in part, at the direction
of
the Servicer on any Payment Date on which the Servicer exercises its option
to
purchase the Trust Property pursuant to Section 8.1 of the Sale and Servicing
Agreement. After the Servicer notifies the Indenture Trustee that it
will exercise its option pursuant to Section 8.1 of the Sale and Servicing
Agreement, the Indenture Trustee will promptly notify the Noteholders and the
Swap Counterparties:
(i) of
the outstanding Note Balance of each Class of the Notes to be prepaid as of
the
most recent Payment Date and that the Notes plus accrued and unpaid interest
on
such Notes at the applicable Note Interest Rate to the Redemption Date will
be
paid in full;
(ii) of
the place where such Notes are to be surrendered for final payment (which will
be the office or agency of the Issuer maintained as provided in Section 3.2);
and
(iii) that
on the Redemption Date, the outstanding principal amount will become due and
payable upon the Notes and that interest on the Notes will cease to accrue
from
and after the Redemption Date, unless the Issuer defaults in the payment of
the
Notes on the Redemption Date.
(b) The
Issuer will cause the Servicer to deposit by 10:00 a.m. (New York City time)
on
the Business Day preceding the Redemption Date (or, with Rating Agency
Confirmation, on the Redemption Date) in the Collection Account the amount
required pursuant to Section 8.1 of the Sale and Servicing Agreement, whereupon
all such Notes will be paid in full on the Redemption Date.
(c) On
the Redemption Date, the outstanding principal amount of the Notes will be
due
and payable and interest on the Notes will cease to accrue from and after the
Redemption Date, unless the Issuer defaults in the payment of the Notes on
the
Redemption Date. Upon redemption, the Indenture Trustee agrees to
execute any and all instruments to release the Collateral from the lien of
this
Indenture and release to the Issuer or any other Person entitled to any funds
then on deposit in the Bank Accounts under this Indenture.
45
ARTICLE
XI
MISCELLANEOUS
Section
11.1 Compliance Certificates
and Opinions, etc.
(a) In
connection with any order or request by the Issuer to the Indenture Trustee
to
take any action under this Indenture, the Issuer will deliver the following
documents to the Indenture Trustee (such documents, collectively, an
"Issuer Order" or "Issuer Request", as applicable):
(i) a written order or a written request, respectively, signed in the name
of
the Issuer by any one of its Responsible Persons and delivered to the Indenture
Trustee, (ii) an Officer's Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with, (iii) to the extent required by the TIA or upon request of the
Indenture Trustee, an Opinion of Counsel to the effect that in the opinion
of
such counsel all such conditions precedent have been complied with and (iv)
(if
required by the TIA) an Independent Certificate from a firm of certified public
accountants of national reputation selected by the Issuer. However,
in the case of any such application or request as to which the furnishing of
such documents is specifically required by this Indenture, no additional
certificate or opinion need be furnished.
(b) Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture will include:
(i) a
statement that each signatory of such certificate or opinion has read such
covenant or condition and the definitions in this Indenture relating to such
covenant or condition;
(ii) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(iii) a
statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and
(iv) a
statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with.
(c) (i) Before
depositing
any cash or property with the Indenture Trustee that is to be made the basis
for
the release of any property subject to the lien of this Indenture, the Issuer
will, furnish to the Indenture Trustee (A) an Officer's Certificate certifying
or stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to the Issuer of the cash or property
to
be so deposited and (B) an Independent Certificate as to the same matters,
if
the fair value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release since
the
commencement of the then-current calendar year, as set forth in the certificates
delivered pursuant to Section 11.1(c)(i)(A), is 10% or more of the Note Balance
of the Notes Outstanding, but such a certificate need not be furnished with
respect to any property or securities so deposited, if the fair value of such
property or securities to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than 1% of the Note Balance of the
Notes Outstanding.
(ii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuer will furnish to the Indenture Trustee (A) an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as
to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions of this Indenture and (B) an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated by
Section 11.1(c)(iii), or securities released from the lien of this Indenture
since the commencement of the then-current calendar year, as set forth in the
certificates required by Section 11.1(c)(ii)(A) and this Section 11.1(c)(ii)(B),
equals 10% or more of the Note Balance of the Notes Outstanding, but such
certificate need not be furnished in the case of any release of property or
securities, if the fair value of such property or securities as set forth in
the
related Officer's Certificate is less than $25,000 or less than 1% of the Note
Balance of the Notes Outstanding.
46
(iii) Notwithstanding
Section 2.9 or any other provisions of this Section 11.1, the Issuer may,
without compliance with the requirements of the other provisions of this Section
11.1, (A) collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles in the ordinary course of its business provided that all
proceeds, Recoveries and related amounts and proceeds of such dispositions
are
applied in accordance with the provisions of this Indenture and (B) make cash
payments out of the Bank Accounts, in each case, as and to the extent permitted
or required by the Basic Documents.
(d) If
the Securities and Exchange Commission issues an exemptive order under Section
304(d) of the TIA modifying the Indenture Trustee's obligations under Sections
314(c) and 314(d)(1) of the TIA, the Indenture Trustee will release property
from the lien of this Indenture only in accordance with the Basic Documents
and
the conditions and procedures set forth in such exemptive order.
Section
11.2 Form
of Documents Delivered to Indenture Trustee.
(a) Any
Officer's Certificate of a Responsible Person of the Issuer may be based,
insofar as it relates to legal matters, upon an opinion of counsel, unless
such
officer knows, or in the exercise of reasonable care should know, that such
opinion, with respect to the matters upon which such Officer's Certificate
is
based, is erroneous. Any Officer's Certificate of a Responsible
Person of the Issuer or opinion of counsel may be based, insofar as it relates
to factual matters, upon an Officer's Certificate of or representation by a
Responsible Person of the Servicer, the Depositor or the Issuer (including
by
the Administrator on behalf of the Issuer), stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Depositor, the Issuer or the Administrator, unless such Responsible Person
of
the Issuer or counsel knows, or in the exercise of reasonable care should know,
that the Officer's Certificate or representation with respect to such matters
is
erroneous.
(b) In
any case where several matters are required to be certified by, or covered
by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be certified or covered by only one document, but one such Person may certify
or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as
to
such matters in one or several documents.
Section
11.3 Acts
of Noteholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Noteholders or a
specified percentage of Noteholders may be embodied in and evidenced by one
or
more instruments of substantially similar tenor signed by such Noteholders
in
person or by agents duly appointed in writing. Except as otherwise
provided in this Indenture such action will become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, if
required, to the Issuer. Such instrument or instruments (and the
action embodied in such instrument or instruments and evidenced by such
instrument or instruments) are sometimes referred to in this Indenture as the
"Act of Noteholders" signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent will be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section
11.3.
47
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) Any
Act of Noteholders will bind the Noteholder of every Note issued upon the
registration of such Note or in exchange for such Note or in lieu of such Note,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance on such Note, whether or not notation of
such
action is made upon such Note.
Section
11.4 Notices, etc., to
Indenture Trustee, Issuer and Rating Agencies.
(a) Unless
otherwise specified in this Indenture, all notices, requests, demands, consents,
waivers or other communications to or from the parties to this Indenture must
be
in writing and will be deemed to have been given and made:
(i) upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail;
(ii) in
the case of a fax, when receipt is confirmed by telephone, reply email or reply
fax from the recipient;
(iii) in
the case of an email, when receipt is confirmed by telephone or reply email
from
the recipient; and
(iv) in
the case of an electronic posting to a password-protected website to which
the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Unless
otherwise specified in this Indenture, 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) Any
notice required or permitted to be mailed to a Noteholder must be sent by
overnight delivery, mailed by registered first class mail, postage prepaid,
or
sent by fax, to the address of such Person as shown in the Note
Register. Any notice so mailed within the time prescribed in this
Indenture will be conclusively presumed to have been duly given, whether or
not
the Noteholder receives such notice.
Section
11.5 Notices to Noteholders;
Waiver.
(a) Any
notice to Noteholders will be sufficiently given (unless otherwise provided
in
this Indenture) if in writing, sent by overnight delivery, mailed by registered
first class mail, postage prepaid, or sent by facsimile, to each Noteholder
adversely affected by such event, at its address or facsimile number as it
appears on the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In
any case where notice to Noteholders is given by mail, neither the failure
to
mail such notice nor any defect in any notice so mailed to any particular
Noteholder will affect the sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner provided in this
Indenture will conclusively be presumed to have been duly
given.
48
(b) Where
this Indenture provides for notice in any manner, such notice may be waived
by
any Person entitled to receive such notice, either before or after the event,
and such waiver will be the equivalent of such notice. Waivers of
notice by Noteholders will be filed with the Indenture Trustee but such filing
will not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
(c) In
case, by reason of the suspension of regular mail service as a result of a
strike, work stoppage or similar activity, it is impractical to mail notice
of
any event to Noteholders when such notice is required to be given pursuant
to
this Indenture, then any manner of giving such notice satisfactory to the
Indenture Trustee will be deemed to be a sufficient giving of such
notice.
(d) Where
this Indenture provides for notice to the Rating Agencies, failure to give
such
notice will not affect any other rights or obligations created under this
Indenture, and will not under any circumstance constitute a Default or Event
of
Default.
Section
11.6 Conflict
with Trust Indenture
Act. If
any provision of this
Indenture limits, qualifies or conflicts with another provision of this
Indenture that is required or deemed to be included in this Indenture by any
of
the provisions of the TIA,
such required or deemed provision
will control. The provisions of Sections 310 through 317 of the TIA
that impose duties on any Person (including the provisions automatically deemed
included in this Indenture unless expressly excluded by this Indenture) are
a
part of and govern this Indenture.
Section
11.7 Benefits
of
Indenture. Nothing
in this Indenture
or in the Notes, express or implied, will give to any Person, other than the
parties to this Indenture and their successors under this Indenture, and the
Secured Parties and any other party secured under this Indenture, and any other
Person with an ownership interest in any part of the Collateral, any benefit
or
any legal or equitable right, remedy or claim under this Indenture, except
that
no Swap
Counterparty has
any
right to institute any Proceeding,
judicial or otherwise, with respect to enforcement of remedies under Article
V
of this Indenture upon the occurrence of an Event of
Default.
Section
11.8 GOVERNING
LAW. THIS
INDENTURE WILL
BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH
THE LAWS
OF THE STATE OF
NEW
YORK.
Section
11.9 Submission to
Jurisdiction. The parties submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and
of
any New York State Court sitting in New York, New York for purposes of all
legal
proceedings arising out of or relating to this Indenture. The parties
irrevocably waive, to the fullest extent they may do so, any objection that
they
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a
court has been brought in an inconvenient forum.
WAIVER
OF JURY TRIAL. EACH PARTY TO THIS INDENTURE 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 INDENTURE OR
THE
TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.
Section
11.10 Severability. If
any of the covenants,
agreements or terms of this Indenture is held invalid, illegal or
unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Indenture and will in no way affect
the
validity, legality or enforceability of the remaining Indenture or of the Notes
or the rights of the Noteholders.
49
Section
11.11 Counterparts. This
Indenture may be
executed in any number of counterparts. Each counterpart will be an
original, and all counterparts will together constitute one and the same
Indenture.
Section
11.12 Headings. The
headings in this
Indenture are included for convenience only and will not affect the meaning
or
interpretation of this Indenture.
Section
11.13 Recording
of
Indenture. If
this Indenture is
subject to recording in any appropriate public recording offices, the
Issuer,
at its expense, will effect such
recording and deliver an Opinion of Counsel to the Indenture Trustee (which
may
be counsel to the Issuer
or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Secured Parties or any other Person
secured under this Indenture or for the enforcement of any right or remedy
granted to the Indenture Trustee under this Indenture.
Section
11.14 Trust
Obligation. No
recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer,
the Owner Trustee or the Indenture
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection with this Indenture or the Notes, against (i) the
Indenture Trustee or the Owner Trustee each in its individual capacities, (ii)
any holder of a beneficial interest in the Issuer,
(iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee, each in its individual capacity or (iv) any holder
of a beneficial interest in the Owner Trustee or the Indenture Trustee, each
in
its individual capacity, except as any such Person may have agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities). For all purposes of
this Indenture, in the performance of any duties or obligations of the
Issuer
under this Indenture, the Owner
Trustee will be subject to, and entitled to the benefits of, Articles V, VI
and
VII
of the Trust
Agreement.
Section
11.15 Subordination of Claims
against the Depositor.
(a) The
obligations of the Issuer under this Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. The Indenture Trustee, by entering into this Indenture,
and each Noteholder and Note Owner, by accepting a Note or a beneficial interest
in a Note, acknowledge and agree that they have no right, title or interest
in
or to any Other Assets of the Depositor. Notwithstanding the
preceding sentence, if such Indenture Trustee, Noteholder or Note Owner 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 such Indenture Trustee, Noteholder or Note Owner 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 Indenture Trustee, each Noteholder and each Note
Owner further acknowledges and agrees that no adequate remedy at law exists
for
a breach of this Section 11.16 and this Section 11.16 may be enforced by an
action for specific performance.
(b) This
Section 11.16 is for the third party benefit of those entitled to rely on this
Section 11.16 and will survive the termination of this
Indenture.
50
Section
11.16 No
Petition. The
Indenture Trustee, each
Noteholder or Note Owner, by accepting a Note or a beneficial interest in a
Note, each covenants and agrees that, before the date that is 1 year and 1
day
after the payment in full of all securities issued by the Depositor or the
Issuer,
it will not institute against, or
join any other Person in instituting against, the Depositor or the Issuer
any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Basic
Documents. This Section 11.17 will survive the resignation or removal
of the Indenture Trustee under the Indenture and the termination of this
Indenture.
51
EXECUTED
BY:
FORD
CREDIT AUTO OWNER TRUST 2007-B, as Issuer
|
|||
By:
|
U.S.
BANK TRUST
|
||
NATIONAL
ASSOCIATION,not in its individual capacity but solely as Owner Trustee
of
Ford Credit Auto Owner Trust 2007-B
|
|||
By:
|
/s/
Xxxxxx Xxxxx
|
||
Name: Xxxxxx
Xxxxx
|
|||
Title: Vice
President
|
|||
THE
BANK OF NEW YORK, not in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
/s/
Xxxx Xxxxx
|
||
Name: Xxxx
Xxxxx
|
|||
Title: Vice
President
|
EXHIBIT
A-1
FORM
OF
CLASS A-1 NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
THIS
NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW
OF
ANY STATE OF THE UNITED STATES. THE HOLDER OF THIS NOTE, BY PURCHASING THIS
NOTE, AGREES FOR THE BENEFIT OF THE ISSUER AND THE DEPOSITOR THAT THIS NOTE
MAY
BE SOLD, TRANSFERRED, ASSIGNED, PARTICIPATED, PLEDGED OR OTHERWISE DISPOSED
OF
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY
(I) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN
THE MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(II) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS
OF THE STATES OF THE UNITED STATES.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-1-1
REGISTERED
|
$771,000,000
|
Xx.
X-0
|
XXXXX
XX. 00000 XX X0
|
CLASS
A-1
5.29180% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of SEVEN HUNDRED
SEVENTY ONE MILLION DOLLARS payable on the fifteenth day of each calendar month,
or, if any such day is not a Business Day, the next succeeding Business Day,
commencing in November 2007 (each, a "Payment Date") in an amount equal
to the aggregate amount payable to Noteholders of Class A-1 Notes on such
Payment Date from the Principal Payment Account in respect of principal on
the
Class A-1 Notes pursuant to Section 3.1 of the Indenture, dated as of October
1,
2007 (the "Indenture"), between the Issuer and The Bank of New York, as
Indenture Trustee (the "Indenture Trustee"). However, the
entire unpaid principal amount of this Note will be due and payable on the
earlier of the October 2008 Payment Date (the "Class A-1 Final Scheduled
Payment Date") or the Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class A-1
Notes will be made ratably to the Noteholders entitled to such principal
payments. Capitalized terms used but not otherwise defined in this Note are
defined in Article I of the Indenture, which also contains rules as to usage
applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the previous Payment Date on which interest has been
paid (or, in the case of the initial Payment Date, from and including the
Closing Date) to but excluding such Payment Date. Interest will be
computed on the basis of actual days elapsed and a 360-day year.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-1 5.29180% Asset Backed Notes
(the
"Class A-1 Notes") of the Issuer. Also authorized under the
Indenture are the Class A-2a Notes, the Class A-2b Notes, the Class A-3a Notes,
the Class A-3b Notes, the Class A-4a Notes, the Class A-4b Notes, the Class
B
Notes, the Class C Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
The
Class
A-1 Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-1
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
A-1-2
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-1
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-1-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-1-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-1-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-1 Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-1-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said Note, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
A-1-7
EXHIBIT
A-2a
FORM
OF
CLASS A-2a NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-2a-1
REGISTERED
|
$200,000,000
|
Xx.
X-0
|
XXXXX
XX. 00000 XX X0
|
CLASS
A-2a 5.26% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of TWO HUNDRED
MILLION DOLLARS payable on the fifteenth day of each calendar month, or, if
any
such day is not a Business Day, the next succeeding Business Day, commencing
in
November 2007 (each, a "Payment Date") in an amount equal to the
aggregate amount payable to Noteholders of Class A-2a Notes on such Payment
Date
from the Principal Payment Account in respect of principal on the Class A-2a
Notes pursuant to Section 3.1 of the Indenture, dated as of October 1, 2007
(the
"Indenture"), between the Issuer and The Bank of New York, as Indenture
Trustee (the "Indenture Trustee"). However, the entire unpaid
principal amount of this Note will be due and payable on the earlier of the
June
2010 Payment Date (the "Class A-2a Final Scheduled Payment Date") or the
Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class A-2a
Notes will be made ratably to the Noteholders entitled to such principal
payments. Capitalized terms used but not otherwise defined in this Note are
defined in Article I of the Indenture, which also contains rules as to usage
applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-2a 5.26% Asset Backed Notes (the
"Class A-2a Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2b Notes, the Class A-3a Notes,
the Class A-3b Notes, the Class A-4a Notes, the Class A-4b Notes, the Class
B
Notes, the Class C Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
The
Class
A-2a Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-2a
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
A-2a-2
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-2a
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-2a-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-2a-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-2a-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-2a Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-2a-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
X-0x-0
XXXXXXX
X-0x
FORM
OF
CLASS A-2b NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-2b-1
REGISTERED
|
$863,700,000
|
No.
R-1
|
CUSIP
NO. 34528 WA C5
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
A-2b FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of EIGHT HUNDRED
SIXTY-THREE MILLION SEVEN HUNDRED THOUSAND DOLLARS payable on the fifteenth
day
of each calendar month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing in November 2007 (each, a "Payment
Date") in an amount equal to the aggregate amount payable to Noteholders of
Class A-2b Notes on such Payment Date from the Principal Payment Account in
respect of principal on the Class A-2b Notes pursuant to Section 3.1 of the
Indenture, dated as of October 1, 2007 (the "Indenture"), between the
Issuer and The Bank of New York, as Indenture Trustee (the "Indenture
Trustee"). However, the entire unpaid principal amount of this
Note will be due and payable on the earlier of the June 2010 Payment Date (the
"Class A-2b Final Scheduled Payment Date") or the Redemption Date
pursuant to Section 10.1 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the
Indenture. All principal payments on the Class A-2b Notes will be
made ratably to the Noteholders entitled to such principal payments. Capitalized
terms used but not otherwise defined in this Note are defined in Article I
of
the Indenture, which also contains rules as to usage applicable to this
Note.
The
Issuer will pay interest on this Note at a rate based on LIBOR determined in
accordance with the terms of the Indenture which rate will not be less than
LIBOR plus 0.33% on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained
in
Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from and including the previous Payment Date on which interest
has been paid (or, in the case of the initial Payment Date, from and including
the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of actual days elapsed and a 360-day year.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-2b Floating Rate Asset Backed
Notes
(the "Class A-2b Notes") of the Issuer. Also authorized under
the Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-3a
Notes, the Class A-3b Notes, the Class A-4a Notes, the Class A-4b Notes, the
Class B Notes, the Class C Notes and the Class D Notes. The Indenture
and all indentures supplemental to the Indenture set forth the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
A-2b-2
The
Class
A-2b Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-2b
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-2b
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-2b-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-2b-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-2b-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-2b Notes designated above and referred to in the
Indenture.
Date: October___,
2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-2b-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
A-2b-7
EXHIBIT
A-3a
FORM
OF
CLASS A-3a NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-3a-1
REGISTERED
|
$410,500,000
|
Xx.
X-0
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
A-3a 5.15% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of FOUR HUNDRED TEN
MILLION FIVE HUNDRED THOUSAND DOLLARS payable on the fifteenth day of each
calendar month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing in November 2007 (each, a "Payment Date") in an
amount equal to the aggregate amount payable to Noteholders of Class A-3a Notes
on such Payment Date from the Principal Payment Account in respect of principal
on the Class A-3a Notes pursuant to Section 3.1 of the Indenture, dated as
of
October 1, 2007 (the "Indenture"), between the Issuer and The Bank of New
York, as Indenture Trustee (the "Indenture Trustee"). However,
the entire unpaid principal amount of this Note will be due and payable on
the
earlier of the November 2011 Payment Date (the "Class A-3a Final Scheduled
Payment Date") or the Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class A-3a
Notes will be made ratably to the Noteholders entitled to such principal
payments. Capitalized terms used but not otherwise defined in this Note are
defined in Article I of the Indenture, which also contains rules as to usage
applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-3a 5.15% Asset Backed Notes (the
"Class A-3a Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3b Notes, the Class A-4a Notes, the Class A-4b Notes, the Class
B
Notes, the Class C Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
A-3a-2
The
Class
A-3a Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-3a
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-3a
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-3a-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-3a-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-3a-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-3a Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-3a-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
X-0x-0
XXXXXXX
X-0x
FORM
OF
CLASS A-3b NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-3b-1
REGISTERED
|
$400,000,000
|
Xx.
X-0
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
A-3b FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of FOUR HUNDRED
MILLION DOLLARS payable on the fifteenth day of each calendar month, or, if
any
such day is not a Business Day, the next succeeding Business Day, commencing
in
November 2007 (each, a "Payment Date") in an amount equal to the
aggregate amount payable to Noteholders of Class A-3b Notes on such Payment
Date
from the Principal Payment Account in respect of principal on the Class A-3b
Notes pursuant to Section 3.1 of the Indenture, dated as of October 1, 2007
(the
"Indenture"), between the Issuer and The Bank of New York, as Indenture
Trustee (the "Indenture Trustee"). However, the entire unpaid
principal amount of this Note will be due and payable on the earlier of the
November 2011 Payment Date (the "Class A-3b Final Scheduled Payment
Date") or the Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class A-3b
Notes will be made ratably to the Noteholders entitled to such principal
payments. Capitalized terms used but not otherwise defined in this Note are
defined in Article I of the Indenture, which also contains rules as to usage
applicable to this Note.
The
Issuer will pay interest on this Note at a rate based on LIBOR determined in
accordance with the terms of the Indenture which rate will not be less than
LIBOR plus 0.34% on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained
in
Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from and including the previous Payment Date on which interest
has been paid (or, in the case of the initial Payment Date, from and including
the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of actual days elapsed and a 360-day year.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-3b Floating Rate Asset Backed
Notes
(the "Class A-3b Notes") of the Issuer. Also authorized under
the Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b
Notes, the Class A-3a Notes, the Class A-4a Notes, the Class A-4b Notes, the
Class B Notes, the Class C Notes and the Class D Notes. The Indenture
and all indentures supplemental to the Indenture set forth the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
A-3b-2
The
Class
A-3b Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-3b
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-3b
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-3b-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-3b-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-3b-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-3b Notes designated above and referred to in the
Indenture.
Date: October___,
2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-3b-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
A-3b-7
EXHIBIT
A-4a
FORM
OF
CLASS A-4a NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-4a-1
REGISTERED
|
$173,100,000
|
Xx.
X-0
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
A-4a 5.24% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of ONE HUNDRED
SEVENTY-THREE MILLION ONE HUNDRED THOUSAND DOLLARS payable on the fifteenth
day
of each calendar month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing in November 2007 (each, a "Payment
Date") in an amount equal to the aggregate amount payable to Noteholders of
Class A-4a Notes on such Payment Date from the Principal Payment Account in
respect of principal on the Class A-4a Notes pursuant to Section 3.1 of the
Indenture, dated as of October 1, 2007 (the "Indenture"), between the
Issuer and The Bank of New York, as Indenture Trustee (the "Indenture
Trustee"). However, the entire unpaid principal amount of this
Note will be due and payable on the earlier of the July 2012 Payment Date (the
"Class A-4a Final Scheduled Payment Date") or the Redemption Date
pursuant to Section 10.1 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the
Indenture. All principal payments on the Class A-4a Notes will be
made ratably to the Noteholders entitled to such principal payments. Capitalized
terms used but not otherwise defined in this Note are defined in Article I
of
the Indenture, which also contains rules as to usage applicable to this
Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-4a 5.24% Asset Backed Notes (the
"Class A-4a Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3a Notes, the Class A-3b Notes, the Class A-4b Notes, the Class
B
Notes, the Class C Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
A-4a-2
The
Class
A-4a Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-4a
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-4a
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-4a-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-4a-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-4a-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-4a Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-4a-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
X-0x-0
XXXXXXX
X-0x
FORM
OF
CLASS A-4b NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
A-4b-1
REGISTERED
|
$80,000,000
|
No.
X-0
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
A-4b FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of EIGHTY MILLION
DOLLARS payable on the fifteenth day of each calendar month, or, if any such
day
is not a Business Day, the next succeeding Business Day, commencing in November
2007 (each, a "Payment Date") in an amount equal to the aggregate amount
payable to Noteholders of Class A-4b Notes on such Payment Date from the
Principal Payment Account in respect of principal on the Class A-4b Notes
pursuant to Section 3.1 of the Indenture, dated as of October 1, 2007 (the
"Indenture"), between the Issuer and The Bank of New York, as Indenture
Trustee (the "Indenture Trustee"). However, the entire unpaid
principal amount of this Note will be due and payable on the earlier of the
July
2012 Payment Date (the "Class A-4b Final Scheduled Payment Date") or the
Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class A-4b
Notes will be made ratably to the Noteholders entitled to such principal
payments. Capitalized terms used but not otherwise defined in this Note are
defined in Article I of the Indenture, which also contains rules as to usage
applicable to this Note.
The
Issuer will pay interest on this Note at a rate based on LIBOR determined in
accordance with the terms of the Indenture which rate will not be less than
LIBOR plus 0.38% on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained
in
Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from and including the previous Payment Date on which interest
has been paid (or, in the case of the initial Payment Date, from and including
the Closing Date) to but excluding such Payment Date. Interest will
be computed on the basis of actual days elapsed and a 360-day year.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-4b Floating Rate Asset Backed
Notes
(the "Class A-4b Notes") of the Issuer. Also authorized under
the Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b
Notes, the Class A-3a Notes, the Class A-3b Notes, the Class A-4a Notes, the
Class B Notes, the Class C Notes and the Class D Notes. The Indenture
and all indentures supplemental to the Indenture set forth the respective rights
and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
A-4b-2
The
Class
A-4b Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-4b
Notes are subordinated to the rights of the Swap Counterparties to receive
payments (other than Subordinated Swap Termination Payments) pursuant to the
Interest Rate Swaps. Interest on and principal of the Notes will be
payable in accordance with the priority of payments set forth in Section 8.2
of
the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-4b
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
A-4b-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and do not represent any obligation or interest in any assets of the
Depositor. Each Noteholder and Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, acknowledges and agrees that it has
no
right, title or interest in or to any Other Assets of the
Depositor. Notwithstanding the preceding sentence, if such Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from,
Other
Assets, or (ii) is deemed to have any such interest, claim to, or benefit in
or
from 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 such Noteholder or Note Owner further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is
and
will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions
permitting the Noteholders of Notes evidencing specified percentages of the
Note
Balance of the Notes Outstanding or of the Controlling Class, on behalf of
all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this
Note will be conclusive and binding upon such Noteholder and upon all future
Noteholders of this Note and of any Note issued upon the registration of
transfer of this Note or in exchange of this Note or in lieu of this Note
whether or not notation of such consent or waiver is made upon this
Note.
A-4b-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-4b-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-4b Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
A-4b-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
A-4b-7
EXHIBIT
B
FORM
OF
CLASS B NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER OF THIS NOTE, CEDE
&
CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
B-1
REGISTERED
|
$91,600,000
|
No.
X-0
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
Class
B
5.69% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to CEDE & CO., or registered assigns, the principal sum of NINETY-ONE
MILLION SIX HUNDRED THOUSAND DOLLARS payable on the fifteenth day of each
calendar month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing in November 2007 (each, a "Payment Date") in an
amount equal to the aggregate amount payable to Noteholders of Class B Notes
on
such Payment Date from the Principal Payment Account in respect of principal
on
the Class B Notes pursuant to Section 3.1 of the Indenture, dated as of October
1, 2007 (the "Indenture"), between the Issuer and The Bank of New York,
as Indenture Trustee (the "Indenture Trustee"). However, the
entire unpaid principal amount of this Note will be due and payable on the
earlier of the November 2012 Payment Date (the "Class B Final Scheduled
Payment Date") or the Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class B Notes
will be made ratably to the Noteholders entitled to such principal payments.
Capitalized terms used but not otherwise defined in this Note are defined in
Article I of the Indenture, which also contains rules as to usage applicable
to
this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class B 5.69% Asset Backed Notes (the
"Class B Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3a Notes, the Class A-3b Notes, the Class A-4a Notes, the Class
A-4b
Notes, the Class C Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
The
Class
B Notes are and will be equally and ratably secured by the collateral pledged
as
security therefore as provided in the Indenture. The Class B Notes
are subordinated in right of payment to the Class A Notes and to certain amounts
payable to the Swap Counterparties pursuant to the Interest Rate Swaps as and
to
the extent provided in the Indenture.
B-2
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record
Date. However, unless Definitive Notes have been issued to Note
Owners, payment will be made by wire transfer in immediately available funds
to
the account designated by Cede & Co., as nominee of the Clearing Agency or
any successor nominee. Such payments will be made without requiring
that this Note be submitted for notation of payment. Any reduction in
the principal amount of this Note effected by any payments made on any Payment
Date will be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer of this Note or in exchange of this
Note or in lieu of this Note, whether or not noted on this Note. If
funds are expected to be available for payment in full of the then remaining
unpaid principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Registered
Noteholder of this Note as of the preceding Record Date by notice mailed or
transmitted by facsimile before such Payment Date, and the amount then due
and
payable will be payable only upon presentation and surrender of this Note at
the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class B
Note
Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note
Owner, a beneficial interest in a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
B-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and will not represent any obligation or interest in any assets of the
Depositor other than the Trust Property conveyed to the Issuer pursuant to
Article II of the Sale and Servicing Agreement. Each Noteholder and Note Owner,
by its acceptance of a Note or a beneficial interest in a Note, acknowledges
and
agrees that it has no right, title or interest in or to any Other Assets of
the
Depositor. To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentence, such Noteholder or Note Owner
either (i) asserts an interest or claim to, or benefit from, Other Assets,
or
(ii) is deemed to have any such interest, claim to, or benefit in or from 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
or
any successor provision having similar effect under the Bankruptcy Code), then
such Noteholder or Note Owner further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and will be 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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder or Note Owner, by its acceptance of a
Note or a beneficial interest in a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions permitting the
Noteholders of Notes evidencing specified percentages of the Note Balance of
the
Notes Outstanding or of the Controlling Class, on behalf of all Noteholders,
to
waive compliance by the Issuer with certain provisions of the Indenture and
certain defaults under the Indenture and their consequences. Any such
consent or waiver by the Noteholder of this Note will be conclusive and binding
upon such Noteholder and upon all future Noteholders of this Note and of any
Note issued upon the registration of transfer of this Note or in exchange of
this Note or in lieu of this Note whether or not notation of such consent or
waiver is made upon this Note.
B-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
B-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
October___, 2007
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION,
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
|
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class B Notes designated above and referred to in the
Indenture.
Date:
October___, 2007
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
B-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
B-7
EXHIBIT
C
FORM
OF
CLASS C NOTE
THIS
NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW
OF
ANY STATE OF THE UNITED STATES. THE HOLDER OF THIS NOTE, BY PURCHASING THIS
NOTE, AGREES FOR THE BENEFIT OF THE ISSUER AND THE DEPOSITOR THAT THIS NOTE
MAY
BE SOLD, TRANSFERRED, ASSIGNED, PARTICIPATED, PLEDGED OR OTHERWISE DISPOSED
OF
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY
(I) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN
THE MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(II) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS
OF THE STATES OF THE UNITED STATES.
EACH
NOTEHOLDER, BY ACCEPTING THIS NOTE, IS DEEMED TO REPRESENT THAT ITS PURCHASE
AND
HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
C-1
$[ ]
|
|
No.
R-[ ]
|
XXXXX
XX. 00000 XX X0
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
C
6.33% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to
[ ],
or registered assigns, the principal sum of
[ ]
payable on the fifteenth day of each calendar month, or, if any such day is
not
a Business Day, the next succeeding Business Day, commencing in November 2007
(each, a "Payment Date") in an amount equal to the aggregate amount
payable to Noteholders of Class C Notes on such Payment Date from the Principal
Payment Account in respect of principal on the Class C Notes pursuant to Section
3.1 of the Indenture, dated as of October 1, 2007 (the "Indenture"),
between the Issuer and The Bank of New York, as Indenture Trustee (the
"Indenture Trustee"). However, the entire unpaid principal
amount of this Note will be due and payable on the earlier of the May 2013
Payment Date (the "Class C Final Scheduled Payment Date") or the
Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class C Notes
will be made ratably to the Noteholders entitled to such principal payments.
Capitalized terms used but not otherwise defined in this Note are defined in
Article I of the Indenture, which also contains rules as to usage applicable
to
this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class C 6.33% Asset Backed Notes (the
"Class C Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3a Notes, the Class A-3b Notes, the Class A-4a Notes, the Class
A-4b
Notes, the Class B Notes and the Class D Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
The
Class
C Notes are and will be equally and ratably secured by the collateral pledged
as
security therefore as provided in the Indenture. The Class C Notes
are subordinated in right of payment to the Class A Notes, the Class B Notes
and
to certain amounts payable to the Swap Counterparties pursuant to the Interest
Rate Swaps as and to the extent provided in the Indenture.
C-2
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record Date. Such
payments will be made without requiring that this Note be submitted for notation
of payment. Any reduction in the principal amount of this Note
effected by any payments made on any Payment Date will be binding upon all
future Noteholders of this Note and of any Note issued upon the registration
of
transfer of this Note or in exchange of this Note or in lieu of this Note,
whether or not noted on this Note. If funds are expected to be
available for payment in full of the then remaining unpaid principal amount
of
this Note on a Payment Date, then the Indenture Trustee, in the name of and
on
behalf of the Issuer, will notify the Registered Noteholder of this Note as
of
the preceding Record Date by notice mailed or transmitted by facsimile before
such Payment Date, and the amount then due and payable will be payable only
upon
presentation and surrender of this Note at the Indenture Trustee's Corporate
Trust Office or at the office of the Indenture Trustee's agent appointed for
such purposes located in The City of New York.
The
Issuer will pay interest on overdue installments of interest at the Class C
Note
Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each
Noteholder, by its acceptance of a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
C-3
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and will not represent any obligation or interest in any assets of the
Depositor other than the Trust Property conveyed to the Issuer pursuant to
Article II of the Sale and Servicing Agreement. Each Noteholder, by its
acceptance of a Note, acknowledges and agrees that it has no right, title or
interest in or to any Other Assets of the Depositor. To the extent
that, notwithstanding the agreements and provisions contained in the preceding
sentence, such Noteholder either (i) asserts an interest or claim to, or benefit
from, Other Assets, or (ii) is deemed to have any such interest, claim to,
or
benefit in or from 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 or any successor provision having similar effect under
the Bankruptcy Code), then such Noteholder further acknowledges and agrees
that
any such interest, claim or benefit in or from Other Assets is and will be
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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder, by acceptance of a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder will not institute against the
Depositor or the Issuer, or join in any institution against the Depositor or
the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any federal or State bankruptcy or similar law
in
connection with any obligations relating to the Notes, the Indenture or any
of
the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are owned by a Person other than Ford Credit or its Affiliates will qualify
as indebtedness of the Issuer secured by the Collateral. Each
Noteholder, by its acceptance of a Note, will be deemed to agree to treat the
Notes for federal, State and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions permitting the
Noteholders of Notes evidencing specified percentages of the Note Balance of
the
Notes Outstanding or of the Controlling Class, on behalf of all Noteholders,
to
waive compliance by the Issuer with certain provisions of the Indenture and
certain defaults under the Indenture and their consequences. Any such
consent or waiver by the Noteholder of this Note will be conclusive and binding
upon such Noteholder and upon all future Noteholders of this Note and of any
Note issued upon the registration of transfer of this Note or in exchange of
this Note or in lieu of this Note whether or not notation of such consent or
waiver is made upon this Note.
C-4
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
C-5
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
[ ]
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION
|
||||
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
|
This
is
one of the Class C Notes designated above and referred to in the
Indenture.
Date:
[ ]
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
C-6
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
C-7
EXHIBIT
D
FORM
OF
CLASS D NOTE
THIS
NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW
OF
ANY STATE OF THE UNITED STATES. THE HOLDER OF THIS NOTE, BY PURCHASING THIS
NOTE, AGREES FOR THE BENEFIT OF THE ISSUER AND THE DEPOSITOR THAT THIS NOTE
MAY
BE SOLD, TRANSFERRED, ASSIGNED, PARTICIPATED, PLEDGED OR OTHERWISE DISPOSED
OF
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY
(I) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A U.S.
PERSON, AS DEFINED IN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER,
WITHIN THE MEANING OF RULE l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR
FOR
THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, SUBJECT TO THE RECEIPT BY THE ISSUER, THE DEPOSITOR AND THE NOTE REGISTRAR
OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO THE INDENTURE,
WITH SUCH CHANGES IN SUCH LETTER AS MAY BE APPROVED BY THE DEPOSITOR, OR (II)
TO
THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE
STATES OF THE UNITED STATES.
IN
ADDITION, EACH NOTEHOLDER REPRESENTS THAT IT IS EITHER: (A) NOT, AND EACH
ACCOUNT (IF ANY) FOR WHICH IT IS PURCHASING THE CLASS D NOTES IS NOT (I) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) SUBJECT TO TITLE I OF ERISA,
(II) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE CODE SUBJECT TO SECTION
4975
OF THE CODE, OR (III) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY
REASON OF A PLAN'S INVESTMENT IN THE ENTITY (WITHIN THE MEANING OF DEPARTMENT
OF
LABOR REGULATION 29 C.F.R. SECTION 2510.3-101 (THE "PLAN ASSETS REGULATION")
OR
OTHERWISE UNDER ERISA, WITH EACH OF (I) THROUGH (III) IN THIS SUBSECTION (A)
BEING A "BENEFIT PLAN INVESTOR" OR (B) AN INSURANCE COMPANY ACTING ON BEHALF
OF
A GENERAL ACCOUNT AND (I) ON THE DATE OF PURCHASE LESS THAN 25% (OR SUCH LESSER
PERCENTAGE AS MAY BE DETERMINED BY THE DEPOSITOR) OF THE ASSETS OF SUCH GENERAL
ACCOUNT (AS REASONABLY DETERMINED BY IT) CONSTITUTE "PLAN ASSETS" FOR PURPOSES
OF TITLE I OF ERISA AND SECTION 4975 OF THE CODE, (II) THE PURCHASE AND HOLDING
OF SUCH CLASS D NOTES ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION (I) OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, (III) THE PURCHASER
AGREES THAT IF, AFTER THE PURCHASER'S INITIAL ACQUISITION OF THE CLASS D NOTES,
AT ANY TIME DURING ANY CALENDAR QUARTER 25% (OR SUCH LESSER PERCENTAGE AS MAY
BE
DETERMINED BY THE DEPOSITOR) OR MORE OF THE ASSETS OF SUCH GENERAL ACCOUNT
(AS
REASONABLY DETERMINED BY IT NO LESS FREQUENTLY THAN EACH CALENDAR QUARTER)
CONSTITUTE "PLAN ASSETS" FOR PURPOSES OF TITLE I OF ERISA OR SECTION 4975 OF
THE
CODE AND THE DEPOSITOR SO REQUESTS, IT WILL DISPOSE OF ALL CLASS D NOTES THEN
HELD IN ITS GENERAL ACCOUNT BY THE END OF THE NEXT FOLLOWING CALENDAR QUARTER
AND (IV) IS NOT A PERSON, OTHER THAN A BENEFIT PLAN INVESTOR, WHO HAS
DISCRETIONARY AUTHORITY OR CONTROL WITH RESPECT TO THE ASSETS OF THE ISSUER
OR
ANY PERSON WHO PROVIDES INVESTMENT ADVICE FOR A FEE (DIRECT OR INDIRECT) WITH
RESPECT TO SUCH ASSETS OR ANY AFFILIATE (AS DEFINED IN THE PLAN ASSETS
REGULATION) OF SUCH PERSON.
D-1
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS
NOTE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS NOTE.
D-2
$[ ]
|
|
No.
R-[ ]
|
CUSIP
NO. 34528 WA L5
|
FORD
CREDIT AUTO OWNER TRUST 2007-B
CLASS
D
7.79% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2007-B, a statutory trust organized under the laws
of
the State of Delaware (the "Issuer"), for value received, promises to pay
to
[ ],
or registered assigns, the principal sum of
[ ]
payable on the fifteenth day of each calendar month, or, if any such day is
not
a Business Day, the next succeeding Business Day, commencing in November 2007
(each, a "Payment Date") in an amount equal to the aggregate amount
payable to Noteholders of Class D Notes on such Payment Date from the Principal
Payment Account in respect of principal on the Class D Notes pursuant to Section
3.1 of the Indenture, dated as of October 1, 2007 (the "Indenture"),
between the Issuer and The Bank of New York, as Indenture Trustee (the
"Indenture Trustee"). However, the entire unpaid principal
amount of this Note will be due and payable on the earlier of the April 2014
Payment Date (the "Class D Final Scheduled Payment Date") or the
Redemption Date pursuant to Section 10.1 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes will be due and payable on the date on which the Notes
are
declared to be immediately due and payable in the manner provided in Section
5.2(a) of the Indenture. All principal payments on the Class D Notes
will be made ratably to the Noteholders entitled to such principal payments.
Capitalized terms used but not otherwise defined in this Note are defined in
Article I of the Indenture, which also contains rules as to usage applicable
to
this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the 15th day of
the
calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the 15th day of
the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer
with respect to this Note will be applied first to interest due and payable
on
this Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class D 7.79% Asset Backed Notes (the
"Class D Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes,
the Class A-3a Notes, the Class A-3b Notes, the Class A-4a Notes, the Class
A-4b
Notes, the Class B Notes and the Class C Notes. The Indenture and all
indentures supplemental to the Indenture set forth the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the
Indenture.
The
Class
D Notes are and will be equally and ratably secured by the collateral pledged
as
security therefor as provided in the Indenture. The Class D Notes are
subordinated in right of payment to the Class A Notes, the Class B Notes, the
Class C Notes and to certain amounts payable to the Swap Counterparties pursuant
to the Interest Rate Swaps as and to the extent provided in the
Indenture.
D-3
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder's Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder's
address as it appears on the Note Register on each Record Date. Such
payments will be made without requiring that this Note be submitted for notation
of payment. Any reduction in the principal amount of this Note
effected by any payments made on any Payment Date will be binding upon all
future Noteholders of this Note and of any Note issued upon the registration
of
transfer of this Note or in exchange of this Note or in lieu of this Note,
whether or not noted on this Note. If funds are expected to be
available for payment in full of the then remaining unpaid principal amount
of
this Note on a Payment Date, then the Indenture Trustee, in the name of and
on
behalf of the Issuer, will notify the Registered Noteholder of this Note as
of
the preceding Record Date by notice mailed or transmitted by facsimile before
such Payment Date, and the amount then due and payable will be payable only
upon
presentation and surrender of this Note at the Indenture Trustee's Corporate
Trust Office or at the office of the Indenture Trustee's agent appointed for
such purposes located in The City of New York.
The
Issuer will pay interest on overdue installments of interest at the Class D
Note
Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
In
addition, the Class D Notes may not be acquired by or on behalf of a Person
other than a person who is (A) a citizen or resident of the United States,
(B) a
corporation or partnership organized in or under the laws of the United States
or any State thereof (including the District of Columbia), (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, (D) a trust if a U.S. court is able to exercise
primary supervision over the administration of such trust and one or more
persons described in clause (A), (B), (C) or (E) of this paragraph has the
authority to control all substantial decisions of the trust or (E) a person
not
described in clauses (A) through (D) of this paragraph whose ownership of the
Class D Notes is effectively connected with such persons conduct of a trade
or
business within the United States (within the meaning of the Code) and who
provides the Issuer and the Depositor with an IRS Form W-8ECI (and such other
certifications, representations, or opinions of counsel as may be requested
by
the Issuer or the Depositor).
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and
limitations, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder of this Note or such
Noteholder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to
the
designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay an amount sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
D-4
Each
Noteholder, by its acceptance of a Note, covenants and agrees that no recourse
may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection with
the
Notes and the Indenture, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any holder of a beneficial interest in
the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Owner
Trustee or the Indenture Trustee, each in its individual capacity, except as
any
such Person may have agreed.
The
obligations of the Issuer under the Indenture are solely the obligations of
the
Issuer and will not represent any obligation or interest in any assets of the
Depositor other than the Trust Property conveyed to the Issuer pursuant to
Article II of the Sale and Servicing Agreement. Each Noteholder, by its
acceptance of a Note, acknowledges and agrees that it has no right, title or
interest in or to any Other Assets of the Depositor. To the extent
that, notwithstanding the agreements and provisions contained in the preceding
sentence, such Noteholder either (i) asserts an interest or claim to, or benefit
from, Other Assets, or (ii) is deemed to have any such interest, claim to,
or
benefit in or from 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 or any successor provision having similar effect under
the Bankruptcy Code), then such Noteholder further acknowledges and agrees
that
any such interest, claim or benefit in or from Other Assets is and will be
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 WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(a) OF THE BANKRUPTCY CODE.
Each
Noteholder, by acceptance of a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder will not institute against the
Depositor or the Issuer, or join in any institution against the Depositor or
the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any federal or State bankruptcy or similar law
in
connection with any obligations relating to the Notes, the Indenture or any
of
the other Basic Documents.
The
Issuer has entered into the Indenture and this Note is issued with the intention
that, for federal, State, and local income and franchise tax purposes, Notes
that are beneficially owned by a Person other than Ford Credit or its Affiliates
will qualify as indebtedness of the Issuer secured by the
Collateral. Each Noteholder, by its acceptance of a Note, will be
deemed to agree to treat the Notes for federal, State and local income, single
business and franchise tax purposes as indebtedness of the Issuer.
With
respect to any date of determination, the Issuer, the Indenture Trustee and
any
agent of the Issuer or the Indenture Trustee may treat the Person in whose
name
this Note is registered as of such date as the owner of such Note for the
purpose of receiving payments of principal of and any interest on such Note
and
for all other purposes, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee will recognize notice to the
contrary.
D-5
The
Indenture permits, with certain exceptions requiring the consent of all
adversely affected Noteholders as provided in the Indenture, the amendment
of
the Indenture and the modification of the rights and obligations of the Issuer
and the rights of the Noteholders under the Indenture by the Issuer with the
consent of the Noteholders of Notes evidencing not less than a majority of
the
Note Balance of the Controlling Class. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth
in
the Indenture without the consent of the Noteholders provided certain conditions
are satisfied. In addition, the Indenture contains provisions permitting the
Noteholders of Notes evidencing specified percentages of the Note Balance of
the
Notes Outstanding or of the Controlling Class, on behalf of all Noteholders,
to
waive compliance by the Issuer with certain provisions of the Indenture and
certain defaults under the Indenture and their consequences. Any such
consent or waiver by the Noteholder of this Note will be conclusive and binding
upon such Noteholder and upon all future Noteholders of this Note and of any
Note issued upon the registration of transfer of this Note or in exchange of
this Note or in lieu of this Note whether or not notation of such consent or
waiver is made upon this Note.
The
term
"Issuer", as used in this Note, includes any successor to the Issuer under
the
Indenture.
The
Issuer is permitted by the Indenture, under certain circumstances, to merge
or
consolidate, subject to the rights of the Indenture Trustee and the Noteholders
under the Indenture.
The
Notes
are issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth in the
Indenture.
THIS
NOTE
AND THE INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK.
No
reference in this Note to the Indenture, and no provision of this Note or of
the
Indenture, will alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency prescribed in this
Note.
Anything
in this Note to the contrary notwithstanding, except as provided in the Basic
Documents, none of The Bank of New York, in its individual capacity, U.S. Bank
Trust National Association, in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
will be personally liable for, nor will recourse be had to any of them for,
the
payment of principal or of interest on this Note or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained
in
the Indenture. The Noteholder of this Note, by its acceptance of this
Note, agrees that, except as provided in the Basic Documents, in the case of
an
Event of Default under the Indenture, the Noteholder has no claim against any
of
the foregoing for any deficiency, loss or claim therefrom; provided, however,
that nothing contained in this Note will be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Note.
Unless
the certificate of authentication on this Note has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note will
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
D-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
[ ]
FORD
CREDIT AUTO OWNER TRUST 2007-B
|
||||
By:
|
U.S.
BANK TRUST
|
|||
NATIONAL
ASSOCIATION
|
||||
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-B
|
||||
By:
|
||||
Responsible
Person
|
||||
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
|
This
is
one of the Class D Notes designated above and referred to in the
Indenture.
Date:
[ ]
THE
BANK OF NEW YORK,
not
in its individual capacity but solely as Indenture
Trustee
|
|||
By:
|
|||
Responsible
Person
|
D-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
Dated:
|
*/
|
||||
Signature
Guaranteed
|
|||||
*/
|
*/
|
NOTICE: The
signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change
whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to,
or in
substitution for, the Securities Transfer Agents Medallion Program,
all in
accordance with the Exchange
Act.
|
D-8
EXHIBIT
E
FORM
OF
INVESTMENT LETTER
CLASS
D
NOTES
[Date]
|
Ford
Credit Auto Owner Trust 2007-B,
as
Issuer
The
Bank
of New York,
as
Indenture Trustee and Note Registrar
000
Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 10286
Attention:
Structured Finance Services-Asset Backed Securities,
Ford
Credit Auto Owner Trust Series 2007-B
Ford
Credit Auto Receivables Two LLC
c/o
Ford
Motor Credit Company LLC
c/o
Ford
Motor Company
World
Headquarters
Xxx
Xxxxxxxx Xxxx, Xxxxx 000-X0
Xxxxxxxx,
Xxxxxxxx 00000
Attention: Ford
Credit SPE Management Office
|
Re:
|
Ford
Credit Auto Owner Trust 2007-B
|
Class
D 7.79% Asset Backed Notes
Ladies
and Gentlemen:
In
connection with our proposed purchase of the Class D 7.79% Asset Backed Notes
(the "Class D Notes") of Ford Credit Auto Owner Trust 2007-B (the "Issuer"),
a
trust formed by Ford Credit Auto Receivables Two LLC (the "Depositor"), we
confirm that:
1. We
agree not to sell, transfer, assign, participate, pledge or otherwise dispose
of
any Class D Note or any interest or participation in such Class D Notes (any
such act, a "Class D Note Transfer"), except in compliance with the Securities
Act of 1933, as amended (the "Securities Act"), and the restrictions and
conditions in the legend on the face of the Class D Notes.
2. We
understand that the Class D Notes have not been and will not be registered
under
the Securities Act or any state securities or blue sky law.
3. We
understand that offers of the Class D Notes or any interest or participation
in
the Class D Notes or Class D Note Transfers are only permitted if made in
compliance with the Securities Act and other applicable laws and only to a
person that the holder reasonably believes is a "qualified institutional buyer"
(a "QIB") within the meaning of Rule 144A under the Securities
Act.
E-1
4. We
acknowledge that neither the Issuer nor any person representing the Issuer
has
made any representation to us with respect to the Issuer or the offering or
sale
of any Class D Notes, other than the information contained in the offering
memorandum.
5. We
are purchasing the Class D Notes for our own account or for one or more investor
accounts for which we are acting as fiduciary or agent, in each case for
investment, and not with a view to offer, transfer, assign, participate, pledge
or otherwise dispose of such Class D Notes in connection with any distribution
of such Class D Notes that would violate the Securities Act.
6. We
either:
(a) are
not, and each account (if any) for which we are purchasing the Class D Notes
is
not (i) an employee benefit plan (as defined in Section 3(3) of Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) subject to Title
I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (the "Code") subject to Section 4975 of the Code,
or
(iii) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. Section 2510.3-101 (the "Plan Assets Regulation") or
otherwise under ERISA), with each of (i) through (iii) in this subsection (a)
being a "Benefit Plan Investor," or
are
an
insurance company acting on behalf of a general account and (i) on the date
of
this investment letter less than 25% of the assets of such general account
(as
reasonably determined by us) constitute "plan assets" for purposes of Title
I of
ERISA and Section 4975 of the Code, (ii) the purchase and holding of such Class
D Notes are eligible for exemptive relief under Section (I) of Prohibited
Transaction Class Exemption 95-60, (iii) we agree that if, after the our initial
acquisition of the Class D Notes, at any time during any calendar quarter 25%
or
more of the assets of such general account (as reasonably determined by us
no
less frequently than each calendar quarter) constitute "plan assets" for
purposes of Title I of ERISA or Section 4975 of the Code and the Depositor
so
requests, we will dispose of all Class D Notes then held in our general account
by the end of the next following calendar quarter and (iv) not a person, other
than a Benefit Plan Investor, who has discretionary authority or control with
respect to the assets of the Issuer or any person who provides investment advice
for a fee (direct or indirect) with respect to such assets or any affiliate
(as
defined in the Plan Assets Regulation) of such person.
7. We
understand that no subsequent Class D Note Transfer is permitted unless we
cause
our proposed transferee to provide to the Issuer, the Note Registrar and the
Initial Purchaser a letter substantially in the form of this letter, or such
other written statement as the Depositor shall prescribe.
8. We
understand that any purported Class D Note Transfer in contravention of any
of
the restrictions and conditions described above will be void, and the purported
transferee in a void Class D Note Transfer will not be recognized by the Issuer
or any other person as a Class D Noteholder for any purpose.
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9. We
agree to treat the Class D Notes as indebtedness for applicable federal, state
and local income and franchise tax law purposes and for purposes of any other
tax imposed on, or measured by, income.
10.
We acknowledge that the Depositor and the Issuer rely on the truth and accuracy
of the foregoing acknowledgments, representations and agreements, and agrees
that if any of the foregoing acknowledgments, representations and agreements
deemed to have been made by it are no longer accurate, it will promptly notify
the Depositor and the Issuer.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.
Very
truly yours,
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[ ]
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By:
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Name:
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Title:
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Securities
To Be Purchased:
$[ ]-
principal amount of Class D Notes
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SCHEDULE
A
Schedule
of Receivables
Delivered
on CD Rom to the Indenture Trustee at the Closing
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