ACCOUNT CONTROL AGREEMENT between FORD CREDIT AUTO OWNER TRUST 2007-A, as Grantor and THE BANK OF NEW YORK as Indenture Trustee, Dated as of June 1, 2007
between
as
Grantor
and
THE
BANK
OF NEW YORK
as
Indenture Trustee,
Dated
as
of June 1, 2007
TABLE
OF CONTENTS
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ARTICLE
I USAGE AND DEFINITIONS
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1
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ARTICLE
II ESTABLISHMENT OF COLLATERAL ACCOUNTS
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1
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Section
2.1
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Description
of Account
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1
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Section
2.2
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Account
Modifications
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1
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Section
2.3
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Type
of Account
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1
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Section
2.4
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Securities
Account Provisions
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1
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ARTICLE
III SECURED PARTY CONTROL
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2
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Section
3.1
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Control
for Purposes of UCC
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2
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Section
3.2
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Conflicting
Orders or Instructions
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2
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ARTICLE
IV INVESTMENT OF FUNDS IN THE COLLATERAL ACCOUNTS
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2
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Section
4.1
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Investment
of Funds
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2
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ARTICLE
V SUBORDINATION OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF
SET-OFF
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2
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Section
5.1
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Subordination
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2
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Section
5.2
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Set-off
and Recoupment
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2
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ARTICLE
VI OTHER AGREEMENTS
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3
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Section
6.1
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Adverse
Claim
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3
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Section
6.2
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Correspondence,
Statements and Confirmations
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3
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Section
6.3
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Representation
of the Financial Institution
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3
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Section
6.4
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Release
of Financial Institution
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3
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Section
6.5
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Termination
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3
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Section
6.6
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Existence
of Other Agreements
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3
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Section
6.7
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Notice
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3
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ARTICLE
VII MISCELLANEOUS
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4
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Section
7.1
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Amendment
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4
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Section
7.2
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Conflict
With Other Agreement
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4
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Section
7.3
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Location
of Financial Institution
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4
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Section
7.4
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GOVERNING
LAW
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4
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Section
7.5
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Submission
to Jurisdiction
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4
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Section
7.6
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WAIVER
OF JURY TRIAL
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4
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Section
7.7
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Successors
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4
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Section
7.8
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Notices
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4
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Section
7.9
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Severability
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5
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Section
7.10
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Counterparts
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5
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Section
7.11
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Headings
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5
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i
ACCOUNT
CONTROL AGREEMENT dated as of June 1, 2007 (this "Agreement") among FORD
CREDIT AUTO OWNER TRUST 2007-A, a Delaware statutory trust, as Grantor, THE
BANK
OF NEW YORK, a New York banking corporation, as Indenture Trustee for the
benefit of the Noteholders, in such capacity, (the "Secured Party") and
THE BANK OF NEW YORK in its capacity as both a "securities intermediary" as
defined in Section 8-102 of the UCC and a "bank" as defined in Section 9-102
of
the UCC (in such capacities, the "Financial
Institution").
ARTICLE
I
USAGE
AND
DEFINITIONS
Capitalized
terms used but not otherwise defined in this Agreement are defined in Appendix
A
to the Sale and Servicing Agreement. Appendix A also contains rules
as to usage applicable to this Agreement. Appendix A is incorporated
by reference into this Agreement. All references to the "UCC" mean
the Uniform Commercial Code as in effect in the State of New York.
ARTICLE
II
ESTABLISHMENT
OF COLLATERAL ACCOUNTS
Section
2.1 Description of
Account. The
Financial Institution has established the following accounts (each, a
"Collateral Account"):
"Collection
Account-The Bank of New York as Indenture Trustee, as secured party for Ford
Credit Auto Owner Trust 2007-A" with account number 879479;
"Reserve
Account-The Bank of New York as Indenture Trustee, as secured party for Ford
Credit Auto Owner Trust 2007-A" with account number 879480;
"Principal
Payment Account-The Bank of New York as Indenture Trustee, as secured party
for
Ford Credit Auto Owner Trust 2007-A" with account number 879481;
and
"Swap
Counterparty Collateral Account- The Bank of New York as Indenture Trustee,
as
secured party for Ford Credit Auto Owner Trust 2007-A" with account number
879487.
Section
2.2 Account
Modifications. Neither
the Financial Institution nor the Grantor will change the name or account number
of any Collateral Account without the prior written consent of the Secured
Party.
Section
2.3 Type of
Account. The
Financial Institution agrees that each Collateral Account is, and will be
maintained as, either (i) a "securities account" (as defined in Section 8-501
of
the UCC) or (ii) a "deposit account," as defined in Section 9-102(a)(29) of
the
UCC).
Section
2.4 Securities
Account Provisions. If
and to the extent any Collateral Account is a securities account (within the
meaning of Section 8-501 of the UCC) the Financial Institution agrees
that:
(a) all
securities, financial assets or other investment property (other than cash)
credited to each Collateral Account will be registered in the name of the
Financial Institution, indorsed to the Financial Institution or in blank or
credited to another securities account maintained in the name of the Financial
Institution. In no case will any financial asset credited to any
Collateral Account be registered in the name of the Grantor, payable to the
order of the Grantor or specially indorsed to the Grantor unless the foregoing
have been specially indorsed to the Financial Institution or in
blank;
(b) all
financial assets delivered to the Financial Institution pursuant to the
Indenture will be promptly credited to the appropriate Collateral Account;
and
each item of property (whether investment property, financial asset, security
or
instrument) credited to any Collateral Account will be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC.
ARTICLE
III
SECURED
PARTY CONTROL
Section
3.1 Control for
Purposes of UCC. If
the Financial Institution receives any order from the Secured Party or its
authorized agent (i) directing disposition of funds in any Collateral Account
or
(ii) directing transfer or redemption of the financial assets relating to the
Collateral Accounts (a "Secured Party Order"), the Financial Institution
will comply with the Secured Party Order without further consent by the Grantor
or any other person.
Section
3.2 Conflicting
Orders or Instructions. Notwithstanding
anything to the contrary contained herein, if at any time, the Financial
Institution receives conflicting orders or instructions from the Secured Party
and the Grantor, the Financial Institution will follow the orders or
instructions of the Secured Party and not the Grantor.
ARTICLE
IV
INVESTMENT
OF FUNDS IN THE COLLATERAL ACCOUNTS
Section
4.1 Investment of
Funds. If
(i) the Financial Institution has not otherwise received a Secured Party Order
regarding the investment of funds held in the Collateral Accounts by 11:00
a.m.
New York time (or such other time as may be agreed between the Financial
Institution and the Grantor) on the Business Day preceding a Payment Date,
or
(ii) a Default or Event of Default has occurred and is continuing with respect
to the Notes and the Indenture Trustee has provided notice of such continuing
Default or Event of Default to the Financial Institution, the Financial
Institution will, to the fullest extent practicable, invest and reinvest funds
on deposit in such Collateral Account in one or more investments described
in
clause (b) of the definition of Permitted Investments.
ARTICLE
V
SUBORDINATION
OF FINANCIAL INSTITUTION'S LIEN; WAIVER OF SET-OFF
Section
5.1 Subordination. If
the Financial Institution has, or subsequently obtains, by agreement, by
operation of law or otherwise a security interest in any Collateral Account
(or
any portion thereof), the Financial Institution agrees that such security
interest will be subordinate to the security interest of the Secured
Party.
Section
5.2 Set-off and
Recoupment. The
financial assets, money and other items credited to each Collateral Account
will
not be subject to deduction, set-off, recoupment, banker's lien, or any other
right in favor of any person other than the Secured Party. However,
the Financial Institution may set off (i) all amounts due to the Financial
Institution in respect of customary fees and expenses for the routine
maintenance and operation of each Collateral Account, (ii) the face amount
of
any checks which have been credited to a Collateral Account but are subsequently
returned unpaid because of uncollected or insufficient funds and (iii) any
advances made in connection with the settlement of any investment made with
respect to the Collateral Accounts.
2
ARTICLE
VI
OTHER
AGREEMENTS
Section
6.1 Adverse
Claim. Except
for the claims and interests of the Secured Party and the Grantor, the Financial
Institution does not know of any lien on, or claim to, or interest in,
any Collateral Account or in any "financial asset" (as defined in
Section 8-102(a) of the UCC), cash or funds credited thereto.
Section
6.2 Correspondence,
Statements and Confirmations. The
Financial Institution will promptly send copies of all statements, confirmations
and other correspondence concerning any Collateral Account and, if applicable,
any financial assets credited thereto, simultaneously to the Grantor and the
Secured Party.
Section
6.3 Representation
of the Financial Institution. The
Financial Institution represents that this Agreement is the valid and legally
binding obligation of the Financial Institution.
Section
6.4 Release of
Financial Institution. The
Grantor and the Secured Party agree that the Financial Institution is released
from any and all liabilities to the Grantor and the Secured Party arising from
the terms of this Agreement and the compliance of the Financial Institution
with
the terms hereof, except to the extent that such liabilities arise from the
Financial Institution's negligence.
Section
6.5 Termination. The
obligations of the Financial Institution to the Secured Party pursuant to this
Agreement will continue in effect until the security interests of the Secured
Party in each Collateral Account have been terminated pursuant to the terms
of
the Indenture and the Secured Party has notified the Financial Institution
of
such termination in writing. The Financial Institution may terminate
its obligations under this Agreement if the Secured Party resigns or is removed
as Indenture Trustee pursuant to the Indenture, provided that such termination
will not be effective until the Collateral Accounts have been established with,
and transferred to, another securities intermediary which has agreed to assume
the obligations of the Financial Institution under this Agreement. The
termination of this Agreement will not terminate any Collateral Account or
alter
the obligations of the Financial Institution to the Grantor pursuant to any
other agreement with respect to any Collateral Account.
Section
6.6 Existence of Other
Agreements. The
Financial Institution confirms and agrees that:
(a) There
are no other agreements entered into between the Financial Institution and
the
Grantor with respect to any Collateral Account other than the
Indenture;
(b) The
Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement with any other person relating
any
Collateral Account pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) or
instructions (within the meaning of Section 9-104 of the UCC) of such other
person; and
(c) The
Financial Institution has not entered into, and until the termination of this
Agreement will not enter into, any agreement purporting to limit or condition
the obligation of the Financial Institution to comply with entitlement orders
or
instructions.
Section
6.7 Notice. If
any person asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against any Collateral Account (or in any financial asset, cash or funds carried
therein), the Financial Institution will promptly notify the Secured
Party.
3
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Amendment. No
amendment or modification of this Agreement or waiver of any right under this
Agreement will be binding on any party to this Agreement unless it is in writing
and is signed by all of the parties to this Agreement.
Section
7.2 Conflict
With Other Agreement. In
the event of any conflict between this Agreement (or any portion thereof) and
any other agreement now existing or hereafter entered into, the terms of this
Agreement will prevail.
Section
7.3 Location of
Financial Institution. Regardless
of any provision in any other agreement, for purposes of the UCC, New York
will
be the location of the bank for purposes of Sections 9-301, 9-304 and 9-305
of
the UCC and the securities intermediary for purposes of Sections 9-301 and
9-305
and Section 8-110 of the UCC.
Section
7.4 GOVERNING
LAW. THIS
AGREEMENT AND EACH COLLATERAL ACCOUNT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
7.5 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 Agreement. 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.
Section
7.6 WAIVER OF
JURY TRIAL. EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
BY
THIS AGREEMENT.
Section
7.7 Successors. The
terms of this Agreement will be binding upon, and will be for the benefit of,
the parties hereto and their respective successors and assigns and will apply
to
any successor account to any Collateral Account.
Section
7.8 Notices. All
notices, requests, demands, consents, waivers or other communications to or
from
the parties to this Agreement must be in writing and will be deemed to have
been
given:
(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, reply email from
the recipient, and
4
(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.
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
Agreement will be conclusively presumed to have been properly given, whether
or
not the Noteholder receives such notice.
Section
7.9 Severability. If
any of the covenants, agreements or terms of this Agreement is held invalid,
illegal or unenforceable, then it will be deemed severable from the remaining
covenants, agreements or terms of this Agreement and will in no way affect
the
validity, legality or enforceability of the remaining Agreement.
Section
7.10 Counterparts. This
Agreement may be executed in any number of counterparts. Each
counterpart will be an original, and all counterparts will together constitute
one and the same instrument.
Section
7.11 Headings. The
headings in this Agreement are included for convenience only and will not affect
the meaning or interpretation of this Agreement.
5
EXECUTED:
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as
Grantor
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By:
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U.S.
BANK TRUST NATIONAL ASSOCIATION,
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not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2007-A
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
Vice President
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THE
BANK OF NEW YORK,
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| solely in its capacity as "Indenture Trustee" for the "Noteholders" | ||
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇
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Title:
Vice President
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THE
BANK OF NEW YORK,
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as
securities intermediary
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇
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Title:
Vice President
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6