INDENTURE between FORD CREDIT AUTO OWNER TRUST 2008-A, as Issuer and THE BANK OF NEW YORK, as Indenture Trustee Dated as of January 1, 2008
Exhibit
4.1
between
as
Issuer
and
THE
BANK
OF NEW YORK,
as
Indenture Trustee
Dated
as
of January 1, 2008
TABLE
OF
CONTENTS
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ARTICLE
I USAGE, DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1
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Usage,
Definitions and Incorporation by Reference.
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1
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Section 1.2
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Incorporation
by Reference of Trust Indenture Act.
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1
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ARTICLE
II THE NOTES
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Section 2.1
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Form.
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2
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Section 2.2
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Execution,
Authentication and Delivery.
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2
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Section 2.3
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Tax
Treatment.
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3
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Section 2.4
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Registration;
Registration of Transfer and Exchange.
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3
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Section 2.5
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Mutilated,
Destroyed, Lost or Stolen Notes.
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7
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Section 2.6
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Persons
Deemed Owners.
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8
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Section 2.7
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Payment
of Principal and Interest.
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8
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Section 2.8
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Cancellation.
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9
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Section 2.9
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Release
of Collateral.
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9
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Section 2.10
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Book-Entry
Notes.
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9
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Section 2.11
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Definitive
Notes.
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10
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Section 2.12
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Authenticating
Agents.
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10
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Section 2.13
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Note
Paying Agents.
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11
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ARTICLE
III COVENANTS AND REPRESENTATIONS
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Section 3.1
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Payment
of Principal and Interest.
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11
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Section 3.2
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Maintenance
of Office or Agency.
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11
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Section 3.3
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Money
for Payments To Be Held in Trust.
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11
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Section 3.4
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Existence.
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13
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Section 3.5
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Protection
of Collateral.
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13
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Section 3.6
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Performance
of Obligations; Servicing of Receivables.
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13
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Section 3.7
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Negative
Covenants.
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14
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Section 3.8
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Opinions
as to Collateral.
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15
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Section 3.9
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Annual
Statement as to Compliance
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15
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Section 3.10
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Consolidation
and Merger; Sale of Assets
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15
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Section 3.11
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Successor
or Transferee.
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16
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Section 3.12
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No
Other Activities.
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16
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Section 3.13
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Further
Instruments and Acts.
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16
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Section 3.14
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Restricted
Payments.
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16
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Section 3.15
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Notice
of Events of Default.
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17
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Section 3.16
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Representations
and Warranties of the Issuer as to Security Interest
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17
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Section 3.17
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Audits
of the Issuer.
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18
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Section 3.18
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Representations
and Warranties of the Issuer
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18
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Section 3.19
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Calculation
Agent.
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18
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i
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ARTICLE
IV SATISFACTION AND DISCHARGE
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Section 4.1
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Satisfaction
and Discharge of Indenture.
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19
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ARTICLE
V REMEDIES
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Section 5.1
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Events
of Default.
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19
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Section 5.2
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Acceleration
of Maturity; Rescission and Annulment.
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20
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Section 5.3
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Collection
of Indebtedness by the Indenture Trustee.
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21
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Section 5.4
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Trustee
May File Proofs of Claim.
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21
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Section 5.5
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Trustee
May Enforce Claims Without Possession of Notes.
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22
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Section 5.6
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Remedies;
Priorities.
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22
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Section 5.7
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Optional
Preservation of the Collateral
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23
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Section 5.8
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Limitation
of Suits.
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23
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Section 5.9
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Unconditional
Rights of Noteholders To Receive Principal and Interest.
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24
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Section 5.10
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Restoration
of Rights and Remedies.
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24
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Section 5.11
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Rights
and Remedies Cumulative.
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24
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Section 5.12
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Delay
or Omission Not a Waiver.
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25
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Section 5.13
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Control
by Controlling Class of Noteholders.
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25
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Section 5.14
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Waiver
of Defaults and Events of Default.
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25
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Section 5.15
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Undertaking
for Costs.
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25
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Section 5.16
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Waiver
of Stay or Extension Laws.
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26
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Section 5.17
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Performance
and Enforcement of Certain Obligations.
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26
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ARTICLE
VI THE INDENTURE TRUSTEE
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Section 6.1
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Duties
of Indenture Trustee.
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27
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Section 6.2
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Rights
of Indenture Trustee.
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27
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Section 6.3
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Individual
Rights of Indenture Trustee.
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28
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Section 6.4
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Indenture
Trustee's Disclaimer.
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28
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Section 6.5
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Notice
of Defaults.
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28
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Section 6.6
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Reports
by Indenture Trustee.
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29
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Section 6.7
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Compensation
and Indemnity.
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30
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Section 6.8
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Replacement
of Indenture Trustee.
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31
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Section 6.9
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Successor
Indenture Trustee by Merger.
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31
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Section 6.10
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Appointment
of Separate Indenture Trustee or Co-Indenture Trustee.
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32
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Section 6.11
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Eligibility;
Disqualification.
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33
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Section 6.12
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Preferential
Collection of Claims Against Issuer.
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34
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Section 6.13
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Audits
of the Indenture Trustee.
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34
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Section 6.14
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Representations
and Warranties of the Indenture Trustee
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34
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Section 6.15
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Duty
to Update Disclosure
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35
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ARTICLE
VII NOTEHOLDERS' LISTS AND REPORTS
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Section 7.1
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Names
and Addresses of Noteholders.
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35
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Section 7.2
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Preservation
of Information; Communications to Noteholders.
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36
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Section 7.3
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Reports
by Issuer.
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36
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ii
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Section 7.4
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Reports
by Indenture Trustee.
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36
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ARTICLE
VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
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Section 8.1
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Collection
of Money
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37
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Section 8.2
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Trust
Accounts; Distributions and Disbursements.
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37
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Section 8.3
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General
Provisions Regarding Bank Accounts.
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41
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Section 8.4
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Release
of Collateral.
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41
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ARTICLE
IX SUPPLEMENTAL INDENTURES
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Section 9.1
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Supplemental
Indentures Without Consent of Noteholders.
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43
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Section 9.2
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Supplemental
Indentures with Consent of Noteholders.
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44
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Section 9.3
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Execution
of Supplemental Indentures.
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45
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Section 9.4
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Effect
of Supplemental Indenture.
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45
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Section 9.5
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Conformity
with Trust Indenture Act.
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45
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Section 9.6
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Reference
in Notes to Supplemental Indentures.
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45
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ARTICLE
X REDEMPTION OF NOTES
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Section 10.1
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Redemption.
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46
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ARTICLE
XI MISCELLANEOUS
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Section 11.1
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Compliance
Certificates and Opinions, etc.
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47
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Section 11.2
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Form
of Documents Delivered to Indenture Trustee.
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48
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Section 11.3
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Acts
of Noteholders.
|
48
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Section 11.4
|
Notices,
etc., to Indenture Trustee, Issuer, Swap Counterparties and Rating
Agencies.
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49
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Section 11.5
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Notices
to Noteholders; Waiver.
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49
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Section 11.6
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Conflict
with Trust Indenture Act.
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50
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Section 11.7
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Benefits
of Indenture.
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50
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Section 11.8
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GOVERNING
LAW.
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50
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Section 11.9
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Submission
to Jurisdiction.
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50
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Section 11.10
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WAIVER
OF JURY TRIAL.
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50
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Section 11.11
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Severability.
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50
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Section 11.12
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Counterparts.
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51
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Section 11.13
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Headings.
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51
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Section 11.14
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Recording
of Indenture.
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51
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Section 11.15
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Trust
Obligation.
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51
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Section 11.16
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Subordination
of Claims against the Depositor.
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51
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Section 11.17
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No
Petition.
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52
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EXHIBIT A-1
|
FORM
OF CLASS A-1 NOTE
|
▇-▇-▇
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▇▇▇▇▇▇▇ ▇-▇
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FORM
OF CLASS A-2 NOTE
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A-2-1
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EXHIBIT A-3a
|
FORM
OF CLASS A-3a NOTE
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A-3a-1
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EXHIBIT A-3b
|
FORM
OF CLASS ▇-▇▇ ▇▇▇▇
|
▇-▇▇-▇
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▇▇▇▇▇▇▇ ▇-▇
|
FORM
OF CLASS A-4 NOTE
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A-4-1
|
iii
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EXHIBIT B
|
FORM
OF CLASS B NOTE
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B-1
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EXHIBIT C
|
FORM
OF CLASS C NOTE
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C-1
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EXHIBIT D
|
FORM
OF CLASS D NOTE
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D-1
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EXHIBIT E
|
FORM
OF INVESTMENT LETTER: CLASS D NOTES
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E-1
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SCHEDULE A
|
Schedule
of Receivables
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SA-1
|
iv
CROSS
REFERENCE
TABLE1
|
TIA
|
Indenture
|
|
Section
|
Section
|
|
310
(a)(1)
|
6.11
|
|
(a)(2)
|
6.11
|
|
(a)(3)
|
6.10
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(a)(4)
|
N.A.2
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|
(a)(5)
|
6.11
|
|
(b)
|
6.8;
6.11
|
|
(c)
|
N.A.
|
|
311
(a)
|
6.12
|
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(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 January 1, 2008 (this "Indenture"), between
FORD CREDIT AUTO OWNER TRUST 2008-A, 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 ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-3a, Exhibit ▇-▇▇, ▇▇▇▇▇▇▇
▇-▇,
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
|
4.0176 | % | $ | 544,000,000 | ||||
|
Class
A-2 Notes
|
one-month
LIBOR + 0.60%
|
$ | 710,400,000 | |||||
|
Class
A-3a Notes
|
3.96 | % | $ | 467,200,000 | ||||
|
Class
A-3b Notes
|
one-month
LIBOR + 0.80%
|
$ | 225,000,000 | |||||
|
Class
A-4 Notes
|
4.37 | % | $ | 133,500,000 | ||||
|
Class
B Notes
|
5.33 | % | $ | 65,700,000 | ||||
|
Class
C Notes
|
6.57 | % | $ | 43,800,000 | ||||
|
Class
D Notes
|
8.00 | % | $ | 43,800,000 | ||||
(c) The
Notes (other than the
Class
B Notes, the Class C Notes and
the Class D Notes) will be issuable
as Book-Entry Notes. The Class
B 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 B 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 B 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
guarante eprogram"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 or Final Scheduled 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 B 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 B 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
B Note, Class
C Note or Class D Note without
registration.
(i) No
Class A-1 Note, Class
B 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," "Class
B
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
B 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 B
Note Transfer,"
"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.
(k) Each
Class B Note will bear a legend to
the effect of the legend contained in Exhibit B unless determined otherwise
by
the Administrator (as certified to the Indenture Trustee in an Officer's
Certificate) consistent with applicable law.
4
As
a
condition to the registration of any Class B Note Transfer, the prospective
transferee of such Class B Note will be deemed to represent to the Indenture
Trustee, the Note Registrar and the Issuer the following:
(i) It
understands that the Class B 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 B 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 B Notes or any interest
or
participation in the Class B 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 B Notes or any
interest or
participation in the Class B Notes
for its own account or for the account of another QIB.
(iv) It
is purchasing the Class B 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
B Notes in connection with any distribution of such Class B Notes that would
violate the Securities Act.
(l) 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.
5
(m) 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
(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).
6
(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.
(n) By
acceptance of any Class A-1
Note, Class
B Note, Class C Note
or
Class D Note, the Class A-1
Noteholder, the
Class B 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
B 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
B 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
B 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
B 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
B 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.
(o) The
Depositor will make available to the
prospective transferor and transferee of a Class A-1 Note, Class
B 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
B Notes(if any),
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.
(p) 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, nor
give rise to, 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).
7
(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.
(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. 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 and on the
Final Scheduled Payment
Date as specified in such
Note. Interest on the Class A-1 Notes, the Class A-2 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-2
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, and for a Class
of Notes, on
the applicable Final
Scheduled 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 B
Notes, Class C Notes and
Class
D Notes and, on and
after the date on which Definitive Notes are issued, the Class A
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 or Final Scheduled 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.
8
(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).
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;
9
(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 B Notes, 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.
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.
10
(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.
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.
11
(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.
(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).
12
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.
(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.
13
(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).
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.
14
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,
2009, 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.
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;
15
(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.
(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.
16
(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, the Rating Agencies and the Swap
Counterparties 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.
(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."
17
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.
(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.
18
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.
(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 or on its Final
Scheduled Payment Date, and such failure continues
for a
period of 5 days or more;
19
(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 (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 (if not the
Indenture Trustee) maintaining a Bank Account.
(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.
20
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
Administratorto
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);
(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.
21
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;
(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:
22
(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 ofall
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.
(c) Any
money or property collected by the
Indenture Trustee following the occurrence of (i) an Event of Default specified
in Section5.1(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:
23
(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.
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.
24
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.
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).
25
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 PurchaseAgreement,
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.
(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
26
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
(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.
27
(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.
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.
28
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
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
(b) On
each Payment Date and,
if the Class A-1 Notes are not paid in
full prior to their Final
Scheduled Payment Date, on
the Final Scheduled Payment Date for the Class A-1 Notes,
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
Secured Parties
through
the Indenture
Trustee's
website, which initially is located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇). On
each Payment Date
and, if the Class A-1
Notes
are not paid in full prior to their Final Scheduled Payment
Date, on the Final Scheduled
Payment Date for the Class A-1 Notes, 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 ABa nd 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, 2009,
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.
(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.
29
(iii) The
reports referred to in this Section
6.6(d) will be delivered on before March 1 of each year, beginning March 1,
2009 in
a format suitable for filing with the
Securities and Exchange Commission on ▇▇▇▇▇, 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, 2009.
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.
(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 expensesof
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
forthe
separate counsel to the Indemnified
Person.
30
(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.
(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 Secured Parties. 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.
31
(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
notdelivered, 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:
(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.
32
(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 anew
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) or ceases to be a Qualified
Institution, 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).
(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.
33
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.
(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.
34
(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
effecton
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 TIAand is a Qualified
Institution. 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.
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.
35
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
(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, 2009,
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.
36
(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
Indenture Trustee
will
establish,
and on and after the Closing
Date will maintain, the
Bank
Accounts
and
the Swap Counterparty Collateral
Account
as
provided in Section 4.1 of the Sale
and Servicing Agreement.
(b) On
or before each Payment Date
and,
if the Class A-1 Notes are not paid in full
prior to their
Final Scheduled
Payment
Date, on or before the
Final
Scheduled Payment Date
for the Class A-1
Notes, 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.
(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;
37
(v) fifth,
to the Noteholders of Class A
Notes, interest due on the Class A Notes, pro
ratabased 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;
(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.
Notwithstanding
the foregoing, if the Class A-1 Notes are not paid in full prior to their Final
Scheduled Payment Date, as long as the Indenture Trustee has received the
Monthly Investor Report for the Final Scheduled Payment Date in February 2009
by
the related Determination Date, the Indenture Trustee (based on the information
contained in that Monthly Investor Report) will withdraw from the Collection
Account and make payments to the Noteholders of the Class A-1 Notes the amount
payable to such Noteholders on such Final Scheduled Payment Date. The
amount to be paid to the Noteholders of the Class A-1 Notes will be determined
on a pro forma basis in accordance with the priority described above as of
the
Payment Date in February 2009. The Indenture Trustee will apply all other
Available Funds on the Payment Date in February 2009 in accordance with the
priority set forth above, giving effect to amounts paid to the Noteholders
of
the Class A-1 Notes on their Final Scheduled Payment Date.
38
(d) On
each Payment Date, the Indenture
Trustee (based on the information contained in the most recent Monthly
Investor Report)
(and if the Class A-1
Notes
are not paid in full prior to their Final Scheduled Payment Date, then solely
with respect to clause (i) below, on the Final Scheduled Payment Date for the
Class A-1 Notes) 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-2 Notes
in payment of principal until the
Note Balance of the Class A-2 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-4 Notes in payment of principal until the Note Balance of the Class A-4 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(b),
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):
(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;
39
(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-2 Notes in payment of principal until the Note Balance of the Class A-2 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-4Notes,
in payment of principal until the
Note Balance of the Class A-4 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;
(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.
40
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 (unless such Qualified
Institution is also the
Indenture
Trustee) and will
not be liable for the actions or inactions of any Qualified Institution (unless
such Qualified Institution is also the Indenture Trustee).
(b) A
Responsible Person of the Indenture
Trustee will provide notice to the Qualified 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
(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.
41
(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.
42
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:
43
(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 and on each Final Scheduled
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;
44
(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 Final Scheduled 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. The Indenture Trustee will send a copy of any
supplemental indenture to each Swap Counterparty promptly upon
execution.
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.
45
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 RedemptionDate)
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
underthis
Indenture.
46
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 ofthis
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.
47
(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 suchPerson, 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.
48
(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,
Swap
Counterparties 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 thatis
mailed in the manner provided in this
Indenture will conclusively be presumed to have been duly
given.
49
(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.
50
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 maybe
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.
51
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.
52
EXECUTED
BY:
|
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 2008-A
|
|||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇
|
|||
|
Title: Vice
President
|
|||
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇
|
||
|
Name: ▇▇▇▇
▇▇▇▇▇
|
|||
|
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
|
$544,000,000
|
|
▇▇.
▇-▇
|
▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇
|
CLASS
A-1
4.0176% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 FIVE HUNDRED FORTY-FOUR 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 February 2008 (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
January 1, 2008 (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 February 13, 2009 (or if such day is not a
Business Day, the next succeeding Business Day) (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 and on the Class A-1 Final Scheduled 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
and for the Class A-1 Final Scheduled 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 or Class A-1 Final Scheduled 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 4.0176% Asset Backed Notes (the
"Class A-1
Notes") of the Issuer. Also authorized under the Indenture are
the Class A-2 Notes, the Class A-3a Notes, the Class A-3b Notes, the Class
A-4
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 and on the Final Scheduled 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 or Final
Scheduled Payment Date, as applicable, 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 and on a Final Scheduled 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 or on a Final Scheduled 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 or Final Scheduled
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:
January___, 2008
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
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:
January___, 2008
|
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.
|
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS A-2 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-2-1
|
REGISTERED
|
$710,400,000
|
|
▇▇.
▇-▇
|
▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇
|
CLASS
A-2
FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 TEN MILLION FOUR 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 February 2008
(each, a "Payment
Date") in an amount equal to the aggregate amount payable to Noteholders
of Class A-2 Notes on such Payment Date from the Principal Payment Account
in
respect of principal on the Class A-2 Notes pursuant to Section 3.1 of the
Indenture, dated as of January 1, 2008 (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 2010 Payment Date (the
"Class A-2 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-2 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 0.60% 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-2 Floating Rate Asset Backed Notes
(the "Class A-2
Notes") of the Issuer. Also authorized under the Indenture are
the Class A-1 Notes, the Class A-3a Notes, the Class A-3b Notes, the Class
A-4
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-2-2
The
Class
A-2 Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-2
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-2
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-2-3
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-2-4
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-2-5
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:
January___, 2008
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
|
||
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
By:
|
|
|
|
Responsible
Person
|
||
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-2 Notes designated above and referred to in the
Indenture.
Date:
January___, 2008
|
THE
BANK OF NEW YORK,
|
||
|
not
in its individual capacity but solely
as Indenture Trustee
|
||
|
By:
|
|
|
|
Responsible
Person
|
||
A-2-6
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-2-7
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
|
$467,200,000
|
|
▇▇.
▇-▇
|
▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
A-3a 3.96% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 SIXTY SEVEN MILLION TWO 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 February 2008
(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 January 1, 2008 (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 2012 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 3.96% Asset Backed Notes (the
"Class A-3a
Notes") the Issuer. Also authorized under the Indenture are
the Class A-1 Notes, the Class A-2 Notes, the Class A-3b Notes, the Class A-4
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:
January___, 2008
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
|
||
| By: U.S. BANK TRUST | ||
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
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:
January___, 2008
|
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.
|
▇-▇▇-▇
▇▇▇▇▇▇▇
▇-▇▇
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
|
$225,000,000
|
|
No.
R-1
|
CUSIP
NO. ▇▇▇▇▇▇▇▇▇
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
A-3b FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 TWENTY FIVE 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 February 2008 (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
January 1, 2008 (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 2012 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 0.80% 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-2 Notes, the Class A-3a Notes, the Class A-4
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:
January___, 2008
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
|
||
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
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:
January___, 2008
|
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.
|
▇-▇▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS A-4 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-4-1
|
REGISTERED
|
$133,500,000
|
|
No.
R-1
|
CUSIP
NO. ▇▇▇▇▇▇▇▇▇
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
A-4
4.37% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 THIRTY THREE 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 February 2008
(each, a "Payment
Date") in an amount equal to the aggregate amount payable to Noteholders
of Class A-4 Notes on such Payment Date from the Principal Payment Account
in
respect of principal on the Class A-4 Notes pursuant to Section 3.1 of the
Indenture, dated as of January 1, 2008 (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 2012 Payment Date
(the "Class A-4 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-4 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-4 4.37% Asset Backed Notes (the
"Class A-4
Notes") of the Issuer. Also authorized under the Indenture are
the Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes, the Class A-3b
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-4-2
The
Class
A-4 Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-4
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-4
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-4-3
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-4-4
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-4-5
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:
January___, 2008
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
|
||
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION,
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
By:
|
|
|
|
Responsible
Person
|
||
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-4 Notes designated above and referred to in the
Indenture.
Date:
January___, 2008
|
THE
BANK OF NEW YORK,
|
||
|
not
in its individual capacity but solely
as Indenture Trustee
|
||
|
By:
|
|
|
|
Responsible
Person
|
||
A-4-6
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-4-7
EXHIBIT
B
FORM
OF
CLASS B 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.
B-1
$[65,700,000]
|
No.
R-[ ]
|
CUSIP
NO. ▇▇▇▇▇▇▇▇▇
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
B
5.33% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 [SIXTY FIVE 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 February 2008 (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 January
1, 2008 (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 February 2013 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 5.33% Asset Backed Notes (the
"Class
B Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes,
the Class A-3b Notes, the Class A-4 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. 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, 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.
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, 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.
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:
[ ]
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
|
||
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
||
|
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:
[ ]
|
THE
BANK OF NEW YORK,
|
||
|
s
|
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
$[43,800,000]
|
No.
R-[ ]
|
CUSIP
NO. ▇▇▇▇▇▇▇▇▇
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
C
6.57% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 [FORTY-THREE MILLION EIGHT 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 February 2008 (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 January
1, 2008 (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 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 6.57% Asset Backed Notes (the
"Class
C Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes,
the Class A-3b Notes, the Class A-4 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 2008-A
|
||
|
By:
|
U.S.
BANK TRUST
|
|
|
NATIONAL
ASSOCIATION
|
||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
|
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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,
|
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|
not
in its individual capacity but solely
as Indenture Trustee
|
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|
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
|
||||
|
*/
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*/
|
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.
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-1
$[43,800,000]
|
No.
R-[ ]
|
CUSIP
NO. ▇▇▇▇▇▇▇▇▇]
|
FORD
CREDIT AUTO OWNER TRUST 2008-A
CLASS
D
8.00% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2008-A, 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 [FORTY-THREE MILLION EIGHT 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 February 2008 (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 January
1, 2008 (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 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 8.00% Asset Backed Notes (the
"Class
D Notes") of the Issuer. Also authorized under the
Indenture are the Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes,
the Class A-3b Notes, the Class A-4 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-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 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-3
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-4
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.
D-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 2008-A
|
||
|
By:
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U.S.
BANK TRUST
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NATIONAL
ASSOCIATION
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not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2008-A
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By:
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Responsible
Person
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TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class D Notes designated above and referred to in the
Indenture.
Date:
[ ]
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THE
BANK OF NEW YORK,
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not
in its individual capacity but solely as Indenture
Trustee
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By:
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Responsible
Person
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D-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:
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(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.
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Dated:
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*/
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Signature
Guaranteed
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*/
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*/
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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.
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D-7
EXHIBIT
E
FORM
OF
INVESTMENT LETTER
CLASS
D
NOTES
[Date]
Ford
Credit Auto Owner Trust 2008-A,
as
Issuer
The
Bank
of New York,
as
Indenture Trustee and Note Registrar
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Attention:
Structured Finance Services-Asset Backed Securities,
Ford
Credit Auto Owner Trust Series 2008-A
Ford
Credit Auto Receivables Two LLC
c/o
Ford
Motor Credit Company LLC
c/o
Ford
Motor Company
World
Headquarters
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▇▇▇▇▇▇▇▇,
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Attention:
Ford Credit SPE Management Office
Re:
Ford Credit Auto Owner Trust 2008-A
Class
D 8.00% Asset Backed
Notes
Ladies
and Gentlemen:
In
connection with our proposed purchase of the Class D 8.00% Asset Backed Notes
(the "Class D Notes") of Ford Credit Auto Owner Trust 2008-A (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.
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.
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.
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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
SCHEDULE
A
Schedule
of
Receivables
Delivered
on CD Rom to the Indenture Trustee at the Closing
S-1