INDENTURE between FORD CREDIT AUTO OWNER TRUST 2006-B, as Issuer and THE BANK OF NEW YORK, as Indenture Trustee Dated as of August 1, 2006
between
as
Issuer
and
THE
BANK
OF NEW YORK,
as
Indenture Trustee
Dated
as
of August 1, 2006
TABLE
OF CONTENTS
|
ARTICLE
I USAGE, DEFINITIONS AND INCORPORATION BY REFERENCE
|
||
|
Section
1.1
|
Usage,
Definitions and Incorporation by Reference.
|
1
|
|
Section
1.2
|
Incorporation
by Reference of Trust Indenture Act.
|
1
|
|
ARTICLE
II THE NOTES
|
||
|
Section
2.1
|
Form.
|
2
|
|
Section
2.2
|
Execution,
Authentication and Delivery.
|
2
|
|
Section
2.3
|
Tax
Treatment.
|
3
|
|
Section
2.4
|
Registration;
Registration of Transfer and Exchange.
|
3
|
|
Section
2.5
|
Mutilated,
Destroyed, Lost or Stolen Notes.
|
7
|
|
Section
2.6
|
Persons
Deemed Owners.
|
8
|
|
Section
2.7
|
Payment
of Principal and Interest
|
8
|
|
Section
2.8
|
Cancellation.
|
9
|
|
Section
2.9
|
Release
of Collateral.
|
9
|
|
Section
2.10
|
Book-Entry
Notes.
|
9
|
|
Section
2.11
|
Definitive
Notes.
|
10
|
|
Section
2.12
|
Authenticating
Agents.
|
10
|
|
Section
2.13
|
Note
Paying Agents.
|
11
|
|
ARTICLE
III COVENANTS AND REPRESENTATIONS
|
||
|
Section
3.1
|
Payment
of Principal and Interest.
|
12
|
|
Section
3.2
|
Maintenance
of Office or Agency.
|
12
|
|
Section
3.3
|
Money
for Payments To Be Held in Trust.
|
12
|
|
Section
3.4
|
Existence.
|
13
|
|
Section
3.5
|
Protection
of Collateral.
|
13
|
|
Section
3.6
|
Performance
of Obligations; Servicing of Receivables.
|
14
|
|
Section
3.7
|
Negative
Covenants.
|
15
|
|
Section
3.8
|
Opinions
as to Collateral.
|
16
|
|
Section
3.9
|
Annual
Statement as to Compliance
|
16
|
|
Section
3.10
|
Consolidation
and Merger; Sale of Assets
|
17
|
|
Section
3.11
|
Successor
or Transferee.
|
18
|
|
Section
3.12
|
No
Other Activities.
|
18
|
|
Section
3.13
|
Further
Instruments and Acts.
|
18
|
|
Section
3.14
|
Restricted
Payments.
|
18
|
|
Section
3.15
|
Notice
of Events of Default.
|
18
|
|
Section
3.16
|
Representations
and Warranties of the Issuer as to Security Interest
|
19
|
|
Section
3.17
|
Audits
of the Issuer.
|
20
|
|
Section
3.18
|
Representations
and Warranties of the Issuer
|
20
|
|
Section
3.19
|
Calculation
Agent
|
21
|
i
|
ARTICLE
IV SATISFACTION AND DISCHARGE
|
||
|
Section
4.1
|
Satisfaction
and Discharge of Indenture.
|
21
|
|
ARTICLE
V REMEDIES
|
||
|
Section
5.1
|
Events
of Default.
|
22
|
|
Section
5.2
|
Acceleration
of Maturity; Rescission and Annulment.
|
22
|
|
Section
5.3
|
Collection
of Indebtedness by the Indenture Trustee.
|
23
|
|
Section
5.4
|
Trustee
May File Proofs of Claim.
|
24
|
|
Section
5.5
|
Trustee
May Enforce Claims Without Possession of Notes.
|
24
|
|
Section
5.6
|
Remedies;
Priorities.
|
25
|
|
Section
5.7
|
Optional
Preservation of the Collateral
|
26
|
|
Section
5.8
|
Limitation
of Suits.
|
27
|
|
Section
5.9
|
Unconditional
Rights of Noteholders To Receive Principal and Interest.
|
27
|
|
Section
5.10
|
Restoration
of Rights and Remedies.
|
28
|
|
Section
5.11
|
Rights
and Remedies Cumulative.
|
28
|
|
Section
5.12
|
Delay
or Omission Not a Waiver.
|
28
|
|
Section
5.13
|
Control
by Controlling Class of Noteholders.
|
28
|
|
Section
5.14
|
Waiver
of Defaults and Events of Default.
|
29
|
|
Section
5.15
|
Undertaking
for Costs.
|
29
|
|
Section
5.16
|
Waiver
of Stay or Extension Laws.
|
29
|
|
Section
5.17
|
Performance
and Enforcement of Certain Obligations.
|
30
|
|
ARTICLE
VI THE INDENTURE TRUSTEE
|
||
|
Section
6.1
|
Duties
of Indenture Trustee.
|
30
|
|
Section
6.2
|
Rights
of Indenture Trustee.
|
31
|
|
Section
6.3
|
Individual
Rights of Indenture Trustee.
|
32
|
|
Section
6.4
|
Indenture
Trustee’s Disclaimer.
|
32
|
|
Section
6.5
|
Notice
of Defaults.
|
33
|
|
Section
6.6
|
Reports
by Indenture Trustee.
|
33
|
|
Section
6.7
|
Compensation
and Indemnity.
|
34
|
|
Section
6.8
|
Replacement
of Indenture Trustee.
|
35
|
|
Section
6.9
|
Successor
Indenture Trustee by Merger.
|
36
|
|
Section
6.10
|
Appointment
of Separate Indenture Trustee or Co-Indenture Trustee.
|
37
|
|
Section
6.11
|
Eligibility;
Disqualification.
|
38
|
|
Section
6.12
|
Preferential
Collection of Claims Against Issuer.
|
39
|
|
Section
6.13
|
Audits
of the Indenture Trustee.
|
39
|
|
Section
6.14
|
Representations
and Warranties of the Indenture Trustee
|
39
|
|
Section
6.15
|
Duty
to Update Disclosure
|
40
|
|
Section
6.16
|
Establishment
of Swap Collateral Acounts
|
41
|
ii
|
ARTICLE
VII NOTEHOLDERS’ LISTS AND REPORTS
|
||
|
Section
7.1
|
Names
and Addresses of Noteholders.
|
41
|
|
Section
7.2
|
Preservation
of Information; Communications to Noteholders.
|
41
|
|
Section
7.3
|
Reports
by Issuer.
|
41
|
|
Section
7.4
|
Reports
by Indenture Trustee.
|
42
|
|
ARTICLE
VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
|
||
|
Section
8.1
|
Collection
of Money
|
42
|
|
Section
8.2
|
Trust
Accounts; Distributions and Disbursements.
|
43
|
|
Section
8.3
|
General
Provisions Regarding Bank Accounts.
|
46
|
|
Section
8.4
|
Release
of Collateral.
|
47
|
|
ARTICLE
IX SUPPLEMENTAL INDENTURES
|
||
|
Section
9.1
|
Supplemental
Indentures Without Consent of Noteholders.
|
48
|
|
Section
9.2
|
Supplemental
Indentures with Consent of Noteholders.
|
50
|
|
Section
9.3
|
Execution
of Supplemental Indentures.
|
51
|
|
Section
9.4
|
Effect
of Supplemental Indenture.
|
51
|
|
Section
9.5
|
Conformity
with Trust Indenture Act.
|
51
|
|
Section
9.6
|
Reference
in Notes to Supplemental Indentures.
|
51
|
|
ARTICLE
X REDEMPTION OF NOTES
|
||
|
Section
10.1
|
Redemption.
|
51
|
|
ARTICLE
XI MISCELLANEOUS
|
||
|
Section
11.1
|
Compliance
Certificates and Opinions, etc.
|
53
|
|
Section
11.2
|
Form
of Documents Delivered to Indenture Trustee.
|
54
|
|
Section
11.3
|
Acts
of Noteholders.
|
55
|
|
Section
11.4
|
Notices,
etc., to Indenture Trustee, Issuer and Rating Agencies.
|
55
|
|
Section
11.5
|
Notices
to Noteholders; Waiver.
|
56
|
|
Section
11.6
|
Conflict
with Trust Indenture Act.
|
56
|
|
Section
11.7
|
Benefits
of Indenture.
|
57
|
|
Section
11.8
|
GOVERNING
LAW.
|
57
|
|
Section
11.9
|
Submission
to Jurisdiction.
|
57
|
|
Section
11.10
|
WAIVER
OF JURY TRIAL.
|
57
|
|
Section
11.11
|
Severability.
|
57
|
|
Section
11.12
|
Counterparts.
|
57
|
|
Section
11.13
|
Headings.
|
57
|
|
Section
11.14
|
Recording
of Indenture.
|
57
|
|
Section
11.15
|
Trust
Obligation.
|
58
|
|
Section
11.16
|
Subordination
of Claims against the Depositor.
|
58
|
|
Section
11.17
|
No
Petition.
|
59
|
iii
|
EXHIBIT
A-1
|
FORM
OF CLASS A-1 NOTE
|
A-1-1
|
|
EXHIBIT
A-2a
|
FORM
OF CLASS A-2a NOTE
|
A-2a-1
|
|
EXHIBIT
A-2b
|
FORM
OF CLASS ▇-▇▇ ▇▇▇▇
|
▇-▇▇-▇
|
|
▇▇▇▇▇▇▇
▇-▇
|
FORM
OF CLASS A-3 NOTE
|
▇-▇-▇
|
|
▇▇▇▇▇▇▇
▇-▇
|
FORM
OF CLASS A-4 NOTE
|
A-4-1
|
|
EXHIBIT
B
|
FORM
OF CLASS B NOTE
|
B-1
|
|
EXHIBIT
C
|
FORM
OF CLASS C NOTE
|
C-1
|
|
EXHIBIT
D
|
FORM
OF CLASS D NOTE
|
D-1
|
|
EXHIBIT
E
|
FORM
OF INVESTMENT LETTER:
|
|
|
CLASS
D NOTES
|
E-1
|
|
|
SCHEDULE
A
|
Schedule
of Receivables
|
SA-1
|
iv
CROSS
REFERENCE TABLE1
|
TIA
Section
|
Indenture
Section
|
|
310
(a)(1)
|
6.11
|
|
(a)(2)
|
6.11
|
|
(a)(3)
|
6.10
|
|
(a)(4)
|
N.A.2
|
|
(a)(5)
|
6.11
|
|
(b)
|
6.8;
6.11
|
|
(c)
|
N.A.
|
|
311
(a)
|
6.12
|
|
(b)
|
6.12
|
|
(c)
|
N.A.
|
|
312
(a)
|
7.1;
7.2
|
|
(b)
|
7.2
|
|
(c)
|
7.2
|
|
313
(a)
|
.
7.4
|
|
(b)
|
7.4
|
|
(c)
|
7.4
|
|
(d)
|
7.4
|
|
314
(a)
|
3.9,
7.3
|
|
(b)
|
3.8,
11.13
|
|
(c)(1)
|
11.1
|
|
(c)(2)
|
11.1
|
|
(c)(3)
|
11.1
|
|
(d)
|
11.1
|
|
(e)
|
11.1
|
|
315
(a)
|
6.1
|
|
(b)
|
6.5
|
|
(c)
|
6.1
|
|
(d)
|
6.1
|
|
(e)
|
5.15
|
|
316
(a)(1)(A)
|
5.13
|
|
(a)(1)(B)
|
5.14
|
|
(a)(2)
|
N.A.
|
|
(b)
|
5.9
|
|
(c)
|
N.A
|
|
317
(a)(1)
|
5.4
|
|
(a)(2)
|
5.4
|
|
(b)
|
3.3
|
|
318
(a)
|
11.6
|
_______________________
|
1
|
Note:
This Cross Reference Table is not deemed, for any purpose, to be
part of
this Indenture.
|
|
2
|
N.A.
means Not Applicable.
|
v
INDENTURE,
dated as of August 1, 2006 (this “Indenture”),
between FORD CREDIT AUTO OWNER TRUST 2006-B, a Delaware statutory trust, as
Issuer, and THE BANK OF NEW YORK, a New York banking corporation, as Indenture
Trustee for the benefit of the Secured Parties.
Each
party agrees as follows for the benefit of the other party and for the equal
and
ratable benefit of the Secured Parties.
GRANTING
CLAUSE
The
Issuer Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee
for the benefit of the Secured Parties, all of the Issuer’s right, title and
interest in, to and under, whether now owned or hereafter acquired, the
Collateral.
The
foregoing Grant is made in trust to secure (a) the payment of principal of,
interest on and any other amounts owing in respect of the Notes as provided
in
this Indenture and (b) to secure compliance by the Issuer with the provisions
of
this Indenture and the Interest Rate Swap 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 incorpo-rated
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.
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 authentica-tion. The terms of the Notes set forth in Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇▇, Exhibit ▇-▇▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit A-4, Exhibit B, Exhibit
C
and Exhibit D are part of this Indenture and are incorporated into this
Indenture by reference.
Section
2.2 Execution,
Authentication and Delivery.
(a) A
Responsible Person of
the Issuer will execute the Notes on behalf of the Issuer. The signature of
such
Responsible Person on the Notes may be manual or facsimile. Notes bearing the
manual or facsimile signature of an individual who was a Responsible Person
of
the Issuer will bind the Issuer, notwithstanding that such individual has ceased
to hold such office before the authentication and delivery of such Notes or
did
not hold such office at the date of issuance of such Notes.
(b) The
Indenture Trustee
will, upon Issuer Order, authenticate and deliver the Notes for original issue
in the Classes, Note Interest Rates and initial Note Balances as set forth
below.
|
Class
|
Note
Interest Rate
|
Initial
Note Balance
|
||
|
Class
A-1 Notes
|
5.4048%
|
$657,000,000
|
||
|
Class
A-2a Notes
|
5.42%
|
$470,000,000
|
||
|
Class
A-2b Notes
|
one-month
LIBOR + 0.02%
|
$470,000,000
|
||
|
Class
A-3 Notes
|
5.26%
|
$730,000,000
|
||
|
Class
A-4 Notes
|
5.25%
|
$438,560,000
|
||
|
Class
B Notes
|
5.43%
|
$87,333,000
|
||
|
Class
C Notes
|
5.68%
|
$58,222,000
|
||
|
Class
D Notes
|
7.12%
|
$58,222,000
|
2
(c) The
Notes (other than the
Class A-1 Notes and the Class D Notes) will be issuable as Book-Entry Notes
in
minimum denominations of $100,000 and in multiples of $1,000 in excess thereof.
The Class A-1 Notes and the Class D Notes will be issuable as Book-Entry Notes
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.
Section
2.3 Tax
Treatment.
The
Issuer intends that each Class of Notes, if beneficially owned by a Person
other
than Ford Credit, 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 Ex-change.
(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 aggre-gate 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.
3
(d) All
Notes issued upon any
registration of transfer or exchange of Notes will be the valid obligations
of
the Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture as the Notes surrendered upon such registration of transfer
or
exchange.
(e) Every
Note presented or
surrendered for registration of transfer or exchange will be (i) duly endorsed
by, or be accompanied by a written instrument of transfer in form satisfactory
to the Note Registrar or the Indenture Trustee duly executed by, the Noteholder
of such Note or such Noteholder's attorney duly authorized in writing, with
such
signature guaranteed by an “eligible guarantor institution” meeting the
requirements of the Note Registrar which requirements include membership or
participation in Securities Transfer Agents Medallion Program or such other
“signature guarantee program” as may be determined by the Note Registrar in
addition to, or in substitution for, the Securities Transfer Agent 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.
(g)
Neither the Issuer nor
the Note Registrar will be required to register transfers or exchanges of Notes
selected for redemption or Notes whose next Payment Date is not more than 15
days after the requested date of such transfer or exchange.
(h) Neither
the Class A-1
Notes 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 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 or Class D Note without
registration.
(i)
No
Class A-1 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"
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 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"
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:
4
(i)
It
understand 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 QIB within the meaning of Rule 144A under the Securities
Act.
(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 D Note will
bear a legend to the effect of the legend contained in Exhibit D unless
determined otherwise by the Administrator (as certified to the Indenture Trustee
in an Officer's Certificate) consistent with applicable law.
As
a
condition to the registration of any Class D Note Transfer, the prospective
transferee of such Class D Note will be required to represent in writing to
the
Depositor, the Note Registrar and the Issuer the following, unless determined
otherwise by the Administrator (as certified to the Indenture Trustee in an
Officer's Certificate):
(i)
It
understands that no
subsequent Class D Note Transfer is permitted unless it causes its proposed
transferee to provide to the Issuer, the Note Registrar and the Depositor a
letter substantially in the form of Exhibit E hereof (with such changes therein
as may be approved by the Depositor), as applicable, or such other written
statement as the Depositor will prescribe.
(ii) It
is
either:
(1) not,
and each account (if
any) for which it is purchasing the Class D Notes is not (a) an employee benefit
plan, as defined in Section 3(3) of ERISA, subject to Title I of ERISA, (b)
a
plan described in Section 4975(e)(1) of the Code subject to Section 4975 of
the
Code, or (c) an entity whose underlying assets include plan assets by reason
of
a plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. Section 2510.3-101 (the "Plan Assets Regulation") or
otherwise under ERISA), with each of (a) through (c) in this subsection (1)
being a "Benefit Plan Investor"; or
5
(2) an
insurance company
acting on behalf of a general account and (a) on the date of purchase less
than
25% (or such lower percentage as may be determined by the Depositor) of the
assets of such general account (as reasonably determined by it) constitute
"plan
assets" for purposes of Title I of ERISA and Section 4975 of the Code, (b)
the
purchase and holding of such Class D Notes are eligible for exemptive relief
under Section (I) of Prohibited Transaction Class Exemption 95-60, (c) the
purchaser agrees that if, after the purchaser's initial acquisition of the
Class
D Notes, at any time during any calendar quarter 25% (or such lower percentage
as may be determined by the Depositor) or more of the assets of such general
account (as reasonably determined by it no less frequently than each calendar
quarter) constitute "plan assets" for purposes of Title I of ERISA or Section
4975 of the Code and the Depositor so requests, it will dispose of all Class
D
Notes then held in its general account by the end of the next following calendar
quarter and (d) is not a person, other than a Benefit Plan Investor, who has
discretionary authority or control with respect to the assets of the Issuer
or
any person who provides investment advice for a fee (direct or indirect) with
respect to such assets or any affiliate (as defined in the Plan Assets
Regulation) of such person.
(iii) It
is a person who is (A)
a citizen or resident of the United States, (B) a corporation or partnership
organized in or under the laws of the United States or any State thereof
(including the District of Columbia), (C) an estate the income of which is
includible in gross income for United States tax purposes, regardless of its
source, (D) a trust if a U.S. court is able to exercise primary supervision
over
the administration of such trust and one or more persons described in clause
(A), (B), (C) or (E) of this paragraph (iii) has the authority to control all
substantial decisions of the trust or (E) a person not described in clauses
(A)
through (D) of this paragraph (iii) whose ownership of the Class D Notes is
effectively connected with such persons conduct of a trade or business within
the United States (within the meaning of the Code) and who provides the Issuer
and the Depositor with an IRS Form W-8ECI (and such other certifications,
representations, or opinions of counsel as may be requested by the Issuer or
the
Depositor).
(iv) It
understands that any
purported Class D Note Transfer in contravention of any of the restrictions
and
conditions contained in this Section will be a Void Class D Note Transfer,
and
the purported transferee in a Void Class D Note Transfer will not be recognized
by the Issuer or any other person as a Class D Noteholder, for any
purpose.
6
(l)
By
acceptance of any Class A-1 Note or Class D Note, the Class A-1 Noteholder
or
the Class D Noteholder specifically agrees with and represents to the Depositor,
the Issuer and the Note Registrar, that no transfer of a Class A-1 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 or Class D Note is to the Depositor or
its
Affiliates, or (B) such transfer of a Class A-1 Note or Class D Note is exempt
from the registration requirements under the Securities Act because such Class
A-1 Note Transfer or Class D Note Transfer 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 or Class
D
Note Transfer 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.
(m)
The Depositor will make
available to the prospective transferor and transferee of a Class A-1 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 Note or Class D Notes, 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.
(n) Any
Noteholder that purchases and holds the Class A Notes, the Class B Notes or
the
Class C Notes will be deemed to have represented that its purchase and holding
of such Notes does not and will not constitute a non-exempt prohibited
transaction under ERISA or the Code.
Section
2.5 Mutilated,
Destroyed, Lost or Stolen Notes.
(a) If
a mutilated Note is
surrendered to the Indenture Trustee or the Indenture Trustee receives evidence
to its satisfaction of the destruction, loss or theft of a Note, then the Issuer
will execute and, upon Issuer Request, the Indenture Trustee will authenticate
and deliver a replacement Note of the same Class and principal amount in
exchange for or in lieu of such Note so long as (i) the Indenture Trustee
receives such security or indemnity as may be required by it to hold the Issuer
and the Indenture Trustee harmless, (ii) none of the Issuer, the Note Registrar
or the Indenture Trustee have received notice that such Note has been acquired
by a protected purchaser, as defined in Section 8-303 of the UCC and (iii)
the
require-ments 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 Inden-ture Trustee or any agent
of
the Issuer or the Indenture Trustee will recognize notice to the
contrary.
Section
2.7 Payment
of Principal and Interest.
(a) Each
Class of Notes will
accrue interest at the applicable Note Interest Rate. Interest on each Note
will
be due and payable on each Payment Date as specified in such Note. Interest
on
the Class A-1 Notes and the Class A-2b 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 and the Class A-2b Notes) will be computed on the
basis
of a 360-day year consisting of twelve 30-day months.
(b) Interest
and principal
payments on each Class of Notes will be made ratably to the Noteholders of
such
Class entitled to such payments. On each Payment Date before the issuance of
Definitive Notes, distributions to be made with respect to interest on and
principal of the Book-Entry Notes will be paid to the Registered Noteholder
by
wire transfer in immediately available funds to the account designated by the
nominee of the Clearing Agency (initially, such nominee will be Cede & Co.).
Distributions to be made with respect to interest on and principal of the Class
D Notes and, on and after the date on which Definitive Notes are issued, the
Class A Notes, Class B Notes and Class C Notes will be paid to the Registered
Noteholder (i) if such Noteholder has provided to the Note Registrar appropriate
instructions at least 5 Business Days before such Payment Date and the aggregate
original principal amount of such Noteholder’s Notes is at least $1,000,000, by
wire transfer in immediately available funds to the account of such Noteholder
or (ii) by check mailed first class mail, postage prepaid, to such Registered
Noteholder’s address as it appears on the Note Register on the related Record
Date. However, the final install-ment of principal (whether payable by wire
transfer or check) of each Note on a Payment Date, the Redemp-tion 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 date that the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2.
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:
9
(a) With
respect to
Book-Entry Notes, the Note Registrar and the Indenture Trustee will be entitled
to deal with the Clearing Agency for all purposes of this Indenture (including
the payment of principal of and interest on the Book-Entry Notes and the giving
of notices, instructions or directions under this Indenture) as the sole
Noteholder of the Book-Entry Notes, and will have no obligation to the Note
Owners;
(b) the
Clearing Agency will
make book-entry transfers among its participants and receive and transmit
payments of principal of and interest on the Book-Entry Notes to such
participants;
(c) to
the extent that the
provisions of this Section 2.10 conflict with any other provisions of this
Indenture, the provisions of this Section 2.10 will control;
(d) the
rights of Note Owners
may be exercised only through the Clearing Agency and will be limited to those
established by law and agreements between such Note Owners and the Clearing
Agency and/or its participants pursuant to the DTC Letter; and
(e) whenever
this Indenture
requires or permits actions to be taken based upon instructions or directions
of
Noteholders of a specified percentage of the Note Balance of the Notes
Outstanding (or the Controlling Class), the Clearing Agency will be deemed
to
represent such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or the Clearing Agency’s participants owning
or representing, respectively, such required percentage of the beneficial
interest of the Notes Outstanding (or the Controlling Class) and has delivered
such instructions to the Indenture Trustee.
Section
2.11 Definitive
Notes.
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 Administra-tor 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.
10
(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 Authenticat-ing Agent
had been expressly authorized by those Sections to authenticate such Notes.
For
all purposes of this Indenture, the authentication of Notes by an
Authenti-cating Agent pursuant to this Section 2.12 is deemed to be the
authentication of Notes “by the Indenture Trustee.”
(b) Any
Person into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, consolidation or
conversion to which an Authenticating Agent is a party, or any Person succeeding
to all or substantially all of the corporate trust business of an Authenticating
Agent, will be the successor of such Authenticating Agent under this Indenture
without the execution or filing of any document or any further act.
(c) An
Authenticating Agent
may resign by giving notice of resignation to the Indenture Trustee and the
Owner Trustee. The Indenture Trustee may terminate the agency of an
Authenticating Agent by giving notice of termination to such Authenticating
Agent and the Owner Trustee. Upon receiving such notice of resignation or upon
such a termination, the Indenture Trustee may appoint a successor Authenticating
Agent and will notify the Owner Trustee of any such appointment.
(d) Sections
2.8 and 6.4 will
apply to each Authenticating Agent.
Section
2.13 Note
Paying Agents.
(a) The
Indenture Trustee may
appoint one or more Note Paying Agents that meet the eligibility standards
for
the Indenture Trustee specified in Section 6.11(a). The Note Paying Agents
will
have the power to make distributions from the Trust Accounts.
(b) Any
Person into which a
Note Paying Agent may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, consolidation or
conversion to which a Note Paying Agent is a party, or any Person succeeding
to
all or substantially all of the corporate trust business of a Note Paying Agent,
will be the successor of such Note Paying Agent under this Indenture without
the
execution or filing of any document or any further act.
(c) A
Note Paying Agent may
resign by giving notice of resignation to the Indenture Trustee, the
Administrator and the Issuer. The Indenture Trustee may terminate the agency
of
a Note Paying Agent by giving notice of termination to such Note Paying Agent,
the Administrator and the Issuer. Upon receiving such notice of resignation
or
upon such a termination, the Indenture Trustee may appoint a successor Note
Paying Agent and will notify the Administrator and the Issuer of any such
appointment.
(d)
Sections 2.8 and 6.4 will
apply to each Note Paying Agent.
11
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 Swap that are
to
be made from amounts withdrawn from the Bank Accounts will be made on behalf
of
the Issuer by the Indenture Trustee or by another Note Paying Agent, and no
amounts so withdrawn from the Bank Accounts for payments of Notes may be paid
over to the Issuer, except as provided in this Section 3.3.
(b) The
Indenture Trustee
(including in its capacity as Note Paying Agent) will cause each Note Paying
Agent (other than the Indenture Trustee itself) to execute and deliver to the
Indenture Trustee, an instrument in which such Note Paying Agent agrees with
the
Indenture Trustee to:
(i)
hold
all sums held by it
for the payment of amounts due on the Notes in trust for the benefit of the
Persons entitled to such sums until such sums are paid to such Persons or
otherwise disposed of as provided in this Indenture and pay such sums to such
Persons as provided in this Indenture;
(ii) give
the Indenture
Trustee notice of any default by the Issuer of which it has actual knowledge
in
the making of any payment required to be made with respect to the
Notes;
(iii)
during the continuance
of
any such default, upon the request of the Indenture Trustee, immediately pay
to
the Indenture Trustee all sums held in trust by such Note Paying
Agent;
(iv)
immediately resign as a
Note Paying Agent and immediately pay to the Indenture Trustee all sums held
by
it in trust for the payment of Notes if it ceases to meet the eligibility
standards specified in Section 6.11(a) with respect to the Indenture Trustee;
and
12
(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).
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 supple-ments 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:
13
(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. 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.
14
(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 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 (A)
the
related Swap Counterparty fails to have the Swap Required Ratings and (B) any
Rating Agency gives notice to the Issuer, the Indenture Trustee or the
Administrator that the credit support, if any, with respect to the Swap
Counterparty is no longer deemed adequate to maintain the then-current rating
on
the Class A Notes, within 30 days of such rating withdrawal, downgrade or
notification (unless each such Rating Agency has reconfirmed the rating of
each
Class of Notes which was in effect immediately prior to such withdrawal or
downgrade or notification), such Swap Counterparty will (1) assign the swap
transaction to another counterparty that has the Swap Required Ratings and
is
approved by the Issuer (which approval will not be unreasonably withheld) on
terms substantially similar to such Interest Rate Swap, (2) obtain a guaranty
of, or a contingent agreement of, another person that has the Swap Required
Ratings to honor such Swap Counterparty’s obligations under such Interest Rate
Swap, provided that such other person is approved by the Issuer (which approval
will not be unreasonably withheld), (3) post ▇▇▇▇-to-market collateral, pursuant
to a collateral support agreement acceptable to the Issuer, which will be
sufficient to restore any downgrade or withdrawal in the ratings of the Notes
attributable to such Swap Counterparty's failure to have the Swap Required
Ratings, or (4) establish any other arrangement satisfactory to the Issuer
and
to the applicable Rating Agency, in each case, sufficient to satisfy the Rating
Agency Confirmation.
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;
15
(b) claim
any credit on, or
make any deduction from the principal or interest payable in respect of, the
Notes (other than amounts withheld from such payments under the Code or any
State or local tax law) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed upon the
Issuer or the Collateral;
(c) dissolve
or liquidate in
whole or in part;
(d) (i)
permit the validity
or effectiveness of this Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as expressly permitted by
this
Indenture, (ii) permit any Lien other than Permitted Liens to be created on
or
extend to or otherwise arise upon or burden the Collateral or (iii) permit
the
lien of this Indenture not to constitute a valid first priority security
interest in the Collateral (other than with respect to Permitted Liens);
or
(e) except
as otherwise
provided in any Basic Document, amend, modify, waive, supplement, terminate
or
surrender the terms of any Collateral or any of the Basic Documents without
the
consent of the Indenture Trustee or the Noteholders of at least a majority
of
the Note Balance of the Notes Outstanding and upon notice to the Rating
Agencies.
Section
3.8 Opinions
as to Collateral.
(a) On
the Closing Date, the
Issuer will furnish to the Indenture Trustee an Opinion of Counsel to the effect
that this Indenture has been properly recorded and filed to make effective
the
lien intended to be created by this Indenture, and reciting the details of
such
action, or stating that in the opinion of such counsel no such action is
necessary to make such lien effective.
(b) On
or before April 30 in
each calendar year, beginning April 30, 2007, 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.
16
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 Swap 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 inden-ture 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 attor-neys’ fees) arising under or related to this
Indenture and the Notes and (iii) that such Person will make all filings with
the Securities and Exchange Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(c) immediately
after giving
effect to such consolidation, merger or sale, no Default or Event of Default
will have occurred and be continuing;
(d) Rating
Agency
Confirmation has been obtained with respect to such consolidation, merger or
sale;
(e) the
Issuer has received
an Opinion of Counsel (and has delivered copies of such Opinion of Counsel
to
the Indenture Trustee) to the effect that such consolidation, merger or sale
will not cause (i) any security issued by the Issuer to be deemed sold or
exchanged for purposes of Section 1001 of the Code or (ii) the Issuer to be
treated as an association or publicly traded partnership taxable as a
corporation for U.S. federal income tax purposes;
(f) any
action that is
necessary to maintain the lien and security interest created by this Indenture
has been taken; and
(g) the
Issuer has delivered
to the Depositor, the Servicer, the Owner Trustee and the Indenture Trustee
an
Officer’s Certificate and an Opinion of Counsel each to the effect that such
consolidation, merger or sale and such supplemental indenture comply with this
Article III and that all conditions precedent in this Indenture relating to
such
consolidation, merger or sale have been complied with (including any filing
required by the Exchange Act).
17
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.
(b) Notwithstanding
Section
3.14(a), the Issuer may make payments to the Servicer, the Administrator, the
Owner Trustee, the Indenture Trustee, the Swap Counterparty, 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
Docu-ments.
Section
3.15 Notice
of Events of Default.
The
Issuer will notify the Indenture Trustee and the Rating Agencies within 5
Business Days after a Responsible Person of the Issuer obtains actual knowledge
of an Event of Default.
18
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 Swap,
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.”
19
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.
20
Section
3.19 Calculation
Agent.
(a) The
Issuer agrees that
for so long as any of the Floating Rate Notes are Outstanding there will at
all
times be an agent appointed to calculate LIBOR in respect of each Interest
Period (the "Calculation
Agent").
The
Issuer appoints The Bank of New York as Calculation Agent for purposes of
determining LIBOR for each Interest Period and The Bank of New York accepts
such
appointment. The Calculation Agent may be removed by the Issuer at any time.
If
the Calculation Agent is unable or unwilling to act as such or is removed by
the
Issuer, the Issuer will promptly appoint as a replacement Calculation Agent
a
leading bank which is engaged in transactions in Eurodollar deposits in the
international Eurodollar market and which does not control or is not controlled
by or under common control with the Issuer or its Affiliates. The Calculation
Agent may not resign its duties without a successor having been duly
appointed.
ARTICLE
IV
SATISFACTION
AND DISCHARGE
Section
4.1 Satisfaction
and Discharge of Indenture.
(a) Subject
to Section
4.1(b), this Indenture will cease to be of further effect with respect to the
Notes, and the Indenture Trustee, upon Issuer Order and at the expense of the
Issuer, will execute proper instruments acknowledging satisfaction and discharge
of this Indenture with respect to the Notes, if:
(i)
all
Notes that have been
authenticated and delivered (other than (x) Notes that have been destroyed,
lost
or stolen and that have been replaced or paid as provided in Section 2.5 and
(y)
Notes for whose payment money has been deposited in trust or segregated and
held
in trust by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 3.3) have been delivered to the Indenture
Trustee for cancellation;
(ii) the
Issuer has paid or
caused to be paid all other sums payable under the Basic Documents and all
payments due to the Swap Counterparty 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.
21
(c) Upon
the satisfaction and
discharge of the Indenture pursuant to this Section 4.1, at the request of
the
Owner Trustee, the Indenture Trustee will deliver to the Owner Trustee a
certificate of a Trustee Officer stating that all Noteholders have been paid
in
full and stating whether, to the best knowledge of such Trustee Officer, any
claims remain against the Issuer in respect of the Indenture and the
Notes.
ARTICLE
V
REMEDIES
Section
5.1 Events
of Default.
(a) The
occurrence of any one
of the following events will constitute an event of default under this Indenture
(each, an “Event
of Default”):
(i)
failure
to pay interest
due on any Note of the Controlling Class when the same becomes due and payable
on each Payment Date, and such failure continues for a period of 5 days or
more;
(ii) failure
to pay the
principal of any Note at its Final Scheduled Payment Date or Redemption Date,
if
any;
(iii) failure
to observe or perform
any material covenant or agreement of the Issuer made in this Indenture (other
than covenants and agreements as to which the failure to observe or perform
is
specifically covered elsewhere in this Section 5.1) or any representation or
warranty of the Issuer made in this Indenture or in any Officer’s Certificate or
other document delivered pursuant to or in connection with this Indenture proves
to have been incorrect in any material respect as of the time made and, in
each
case, such failure or incorrectness continues for a period of 60 days after
notice was given to the Issuer by the Indenture Trustee or to the Issuer and
the
Indenture Trustee by the Noteholders of at least 25% of the Note Balance of
the
Controlling Class specifying such failure or incorrectness, requiring it to
be
remedied and stating that such notice is a “Notice of Default”; or
(iv)
the occurrence of an
Insolvency Event with respect to the Issuer.
(b) The
Issuer will notify
the Indenture Trustee within 5 Business Days after a Responsible Person of
the
Issuer has actual knowledge of the occurrence of an event set forth in Section
5.1(a)(iii) which with the giving of notice and the lapse of time would become
an Event of Default, which notice will describe such Default, the status of
such
Default and what action the Issuer is taking or proposes to take with respect
to
such Default. The Issuer will send a copy of such notice to each Qualified
Institution or Qualified Trust Institution (if not the Indenture Trustee)
maintaining a Bank Account.
22
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, the Swap Counterparty and each Qualified
Institution or Qualified Trust 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
Swap if the Event of Default giving rise to such acceleration had not occurred,
(2) pay all amounts owed to the Indenture Trustee under Section 6.7, and (3)
pay
all other outstanding fees and expenses of the Issuer, and
(ii) all
Events of Default,
other than the nonpayment of the principal of the Notes that has become due
solely by such acceleration, have been cured or waived as provided in Section
5.14.
No
such
rescission will affect any subsequent default or impair any right resulting
from
such rescission.
Section
5.3 Collection
of Indebtedness by the Indenture Trustee.
(a) The
Issuer covenants that
if an Event of Default under Section 5.1(a)(i) or (ii) occurs and continues,
the
Issuer, upon demand of the Indenture Trustee, will pay to the Indenture Trustee
for the benefit of the Noteholders, such overdue amount with interest on any
overdue principal at the applicable Note Interest Rate and, to the extent
lawful, with interest on any overdue interest at the applicable Note Interest
Rate. In addition, the Issuer covenants to pay, or to cause the Administrator
to
pay, the costs and expenses of collection, including all amounts owed to the
Indenture Trustee under Section 6.7.
(b) If
the Issuer fails to
pay such amounts upon such demand, the Indenture Trustee, in its own name and
as
trustee of an express trust, may institute a Proceeding for the collection
of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer and collect the monies
adjudged or decreed to be payable in the manner provided by law out of the
Collateral.
23
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 (including
any
amounts due to the Indenture Trustee pursuant to Section 6.7), the Secured
Parties allowed in such Proceedings;
(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 the 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 the 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 the Swap Counterparty any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the Interest Rate Swap or
the
rights of any Noteholder or the Swap Counterparty to authorize the Indenture
Trustee to vote in respect of the claim of any Noteholder or the Swap
Counterparty in any such proceeding.
Section
5.5 Trustee
May Enforce Claims Without Possession of Notes.
(a) All
rights of action and
claims under this Indenture, or under any of the Notes, may be enforced by
the
Indenture Trustee without the possession of any of the Notes or the production
of any of the Notes in any Proceeding relative to any of the Notes, and any
such
Proceeding instituted by the Indenture Trustee will be brought in its own
name
as trustee of an express trust, and any recovery of judgment, subject to
the
amounts owed to the Indenture Trustee under Section 6.7, will be for the
benefit
of the Secured Parties in respect of which such judgment has been
recovered.
24
(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
Counterparty; 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, the 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, the Swap Counterparty or the Depositor
may submit a bid with respect to such sale or liquidation.
(b) Notwithstanding
Section
5.6(a), the Indenture Trustee is prohibited from selling or otherwise
liquidating the Collateral unless:
(i)
the
Event of Default is
described in Section 5.1(a)(i) or (ii); or
(ii) the
Event of Default is
described in Section 5.1(a) (iii) and:
(1) the
Noteholders
representing 100% of the Note Balance of the Notes consent to such sale or
liquidation; or
25
(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 Noteholders including all principal of and accrued interest
on
the Outstanding Notes and all payments due (including any Swap Termination
Payment) under the Interest Rate Swap;
(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 Payment)
under the Interest Rate Swap; or
(3) the
Indenture Trustee (A)
determines (but will have no obligation to make such determination) that the
Collateral will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as they 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 Section 5.1(a)(i), (ii) or (iv) and an acceleration of
the
Notes or (ii) an Event of Default specified in Section 5.1(a)(iii) and the
sale
or other liquidation of the Collateral pursuant to Section 5.6(a)(iv), will
be
deposited into the Collection Account for distribution in accordance with
Section 8.2(e) on the Payment Date following the Collection Period during which
such amounts are collected. In all other circumstances, Section 8.2(c) will
continue to apply after an Event of Default.
Section
5.7 Optional
Preservation of the Collateral.
If the
Notes have been accelerated under Section 5.2(a) and such declaration and its
consequences have not been rescinded and annulled in accordance with Section
5.2(b), the Indenture Trustee may elect to maintain possession of the
Collateral. It is the intention of the parties to this Indenture and the
Noteholders that there at all times be sufficient funds for the payment of
principal of and interest on the Notes and any payments due to the Swap
Counterparty. 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.
26
Section
5.8 Limitation
of Suits.
(a) No
Noteholder has any
right to institute any Proceeding with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy under this
Indenture, unless:
(i)
such
Noteholder has given
notice to the Indenture Trustee of a continuing Event of Default;
(ii) the
Noteholders of at
least 25% of the Note Balance of the Controlling Class have requested the
Indenture Trustee to institute such Proceeding in respect of such Event of
Default in its own name as Indenture Trustee under this Indenture;
(iii)
such Noteholders have
offered reasonable indemnity satisfactory to the Indenture Trustee against
any
costs, expenses, losses, damages, claims and liabilities that may be incurred
by
the Indenture Trustee, or its agents, counsel, accountants and experts, in
complying with such request;
(iv)
the Indenture Trustee has
failed to institute such Proceedings for 60 days after its receipt of such
notice, request and offer of indemnity; and
(v) the
Noteholders of at
least a majority of the Note Balance of the Controlling Class have not given
the
Indenture Trustee any direction inconsistent with such request during such
60
day period.
(b) No
Noteholder has any
right to affect, disturb or prejudice the rights of any other Noteholder or
to
obtain or to seek to obtain priority or preference over any other Noteholder
or
to enforce any right under this Indenture, except in the manner provided in
this
Indenture.
(c) If
the Indenture Trustee
receives conflicting requests pursuant to Section 5.8(a)(ii) from two or more
groups of Noteholders, each evidencing less than a majority of the Note Balance
of the Controlling Class, the Indenture Trustee in its sole discretion may
determine what action, if any, will be taken.
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.
27
Section
5.10 Restoration
of
Rights
and Remedies.
If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then the Issuer, the Indenture Trustee and the
Noteholders, subject to any determination in such Proceeding, will be restored
severally and respectively to their former positions under this Indenture,
and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
will continue as though no such Proceeding had been instituted.
Section
5.11 Rights
and Remedies Cumulative.
No right
or remedy conferred upon or reserved to the Indenture Trustee or to the
Noteholders in this Indenture is intended to be exclusive of any other right
or
remedy, and every right and remedy, to the extent permitted by law, will be
cumulative and in addition to every other right and remedy given under this
Indenture or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy under this Indenture, or
otherwise, will not prevent the concurrent assertion or employment of any other
appropriate right or remedy. The Indenture Trustee’s right to seek and recover
judgment on the Notes or under this Indenture will not be affected by the
seeking, obtaining or application of any other relief under or with respect
to
this Indenture. Neither the lien of this Indenture nor any rights or remedies
of
the Indenture Trustee or the Noteholders will be impaired by the recovery of
any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any
of
the assets of the Issuer.
Section
5.12 Delay
or Omission Not a Waiver.
No delay
or omission of the Indenture Trustee or any Noteholder to exercise any right
or
remedy accruing upon any Default or Event of Default will impair any such right
or remedy, or constitute a waiver of any such Default or Event of Default.
Every
right and remedy conferred by this Article V or by law to the Indenture Trustee
or to the Noteholders may be exercised from time to time, and as often as may
be
deemed expedient, by the Indenture Trustee or by the Noteholders, as the case
may be.
Section
5.13 Control
by Controlling Class of Noteholders.
The
Noteholders of at least a majority of the Note Balance of the Controlling Class
have the right to direct the time, method and place of conducting any Proceeding
for any remedy available to the Indenture Trustee with respect to the Notes
or
exercising any trust or power conferred on the Indenture Trustee
if:
(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
28
(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).
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.
29
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 continu-ing, the Indenture Trustee may, and at the
direction of
the
Noteholders of at least 66 2/3% of the Note Balance of the Controlling Class
will, exercise all rights, remedies, powers, privileges and claims of the Issuer
against (i) the Depositor or the Servicer under the Sale and Servicing
Agreement, or (ii) the Depositor or Ford Credit under the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by such Persons of their obligations to the Issuer under such
agreements, and to give any consent, request, notice, direction, approval,
extension or waiver under such agreements, and any right of the Issuer to take
such action will be suspended.
(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 Counterparty in accordance with the
related Interest Rate Swap 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 the Swap Counterparty, including the right or
power
to take any action to compel or secure performance or observance by the Swap
Counterparty of its obligations to the Issuer under the Interest Rate Swap,
and
to give any consent, request, notice, direction, approval, extension or waiver
under the related Interest Rate Swap, and any right of the Issuer to take such
action will be suspended.
ARTICLE
VI
THE
INDENTURE TRUSTEE
Section
6.1 Duties
of Indenture Trustee.
(a) If
an Event of Default
has occurred and is continuing, the Indenture Trustee will exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent Person would use under the circumstances
in
the conduct of such Person’s own affairs.
(b) Except
during the
continuance of an Event of Default:
30
(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.
31
(b) Before
the Indenture
Trustee acts or refrains from acting, it may require an Officer’s Certificate or
an Opinion of Counsel. The Inden-ture 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) to 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.
32
Section
6.5 Notice
of Defaults.
Within
90 days after any Default under this Indenture of which the a Responsible Person
of the Indenture Trustee has knowledge, the Indenture Trustee will mail as
described in Section 313(c) of the TIA to each Noteholder, notice of such
Default, unless such Default has been cured or waived, provided that (a) except
in the case of a Default in the payment of principal of or interest on any
Note,
the Indenture Trustee may withhold such notice if and so long as a committee
of
its Responsible Persons in good faith determines that the withholding of such
notice is in the interests of the Noteholders and (b) in the case of any Default
specified in Section 5.1(a)(iii), the Indenture Trustee will not give notice
to
the Noteholders until at least 30 days after the occurrence of such
Default.
Section
6.6 Reports
by Indenture Trustee.
(a) Upon
delivery to the
Indenture Trustee by the Servicer of the information prepared by the Servicer
pursuant to Section 3.4(a) of the Sale and Servicing Agreement to enable each
Noteholder to prepare its federal and State income tax returns, the Indenture
Trustee will deliver the relevant portions of such information to each
Noteholder of record as of the most recent Record Date (which delivery may
be
made by making such information available to the Noteholders through the
Indenture Trustee’s website, which initially is located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
(b) On
each Payment Date, the
Indenture Trustee will deliver the Monthly Investor Report to each Noteholder
of
record as of the most recent Record Date (which delivery may be made by e-mail
to the e-mail addresses in the Note Register without need for confirmation
of
receipt or by making such report available to the Noteholders through the
Indenture Trustee’s website, which initially is located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
On
each Payment Date, the Indenture Trustee will deliver the Monthly Investor
Report to the Owner Trustee (by e-mail without need for confirmation of receipt)
to forward to the holder of the Residual Interest.
(c) If
required by Regulation
AB, 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, 2007, an
Officer's Certificate, dated as of December 31 of the preceding calendar year,
signed by a Responsible Person of the Indenture Trustee to the effect that
(i) 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 (ii) 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. 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:
33
(i) deliver
to the Depositor, the Owner Trustee and the Servicer, a report, dated as
of
December 31 of the preceding calendar year, on its assessment of compliance
with
the applicable minimum servicing criteria regarding general servicing, cash
and
collection administration, investor remittances and reporting and pool asset
administration during the preceding calendar year, including disclosure of
any
material instance of non-compliance identified by the Indenture Trustee,
as
required by Rule 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB under the Securities Act.
(ii) cause
a firm of
registered public accountants that is qualified and independent within the
meaning of Rule 2-01 of Regulation S-X under the Securities Act to deliver
to
the Depositor, Owner Trustee and the Servicer an attestation report that
satisfies the requirements of Rule 13a-18 or Rule 15d-18 under the Exchange
Act,
as applicable, on the assessment of compliance with servicing criteria with
respect to the prior calendar year. Such attestation report will be addressed
to
the board of directors of the Servicer and to the Depositor and Owner Trustee.
Such attestation report will be in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Exchange Act. The firm may
render other services to the Indenture Trustee, but the firm must indicate
in
each attestation report that it is qualified and independent within the meaning
of Rule 2-01 of Regulation S-X under the Securities Act.
(iii)
The reports referred to in this Section 6.6(d) will be delivered on before
March
1 of each year, beginning March 1, 2007 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, 2007.
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.
34
(c) Promptly
upon receipt by
the Indenture Trustee, or any of its officers, directors, employees and agents
(each, an “Indemnified
Person”),
of
notice of the commencement of any Proceeding against any such Indemnified
Person, such Indemnified Person will, if a claim in respect of such Proceeding
is to be made under Section 6.7(b), notify the Issuer and the Administrator
of
the commencement of such Proceeding. Failure by the Indenture Trustee to so
notify the Issuer and the Administrator will not relieve the Issuer or the
Administrator of its obligations under this Section 6.7, provided that neither
the Issuer nor the Administrator has been materially prejudiced by such failure
to so notify and notice is given within 180 days of a Responsible Person of
the
Indenture Trustee learning of such Proceeding. The Issuer, or, if Issuer so
causes, the Administrator, may participate in and assume the defense and
settlement of any such Proceeding at its expense, and no settlement of such
Proceeding may be made without the approval of the Issuer or the Administrator,
as applicable, and such Indemnified Person, which approvals will not be
unreasonably withheld, delayed or conditioned. After notice from the Issuer
or
the Administrator, as applicable, to the Indemnified Person of the intention
of
the Issuer or the Administrator, as applicable, to assume the defense of such
Proceeding with counsel reasonably satisfactory to the Indemnified Person,
and
so long as the Issuer or the Administrator, as applicable, so assumes the
defense of such Proceeding in a manner reasonably satisfactory to the
Indemnified Person, neither the Issuer nor the Administrator will be liable
for
any legal expenses of counsel to the Indemnified Person unless there is a
conflict between the interests of the Issuer or the Administrator, as
applicable, on one hand, and an Indemnified Person, on the other hand, in which
case the Issuer or the Administrator, will pay for the separate counsel to
the
Indemnified Person.
(d) The
payment obligations
of the Issuer and the Administrator, to the Indenture Trustee pursuant to this
Section 6.7 will survive the resignation or removal of the Indenture Trustee
and
the discharge of this Indenture. Expenses incurred by the Indenture Trustee
after the occurrence of a Default specified in Section 5.1(a)(iv) are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or State bankruptcy, insolvency or similar
law.
Section
6.8 Replacement
of Indenture Trustee.
(a) No
resignation or removal
of the Indenture Trustee, and no appointment of a successor Indenture Trustee,
will become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.8. Subject to the preceding
sentence, the Indenture Trustee may resign by notifying the Issuer. The
Noteholders of at least a majority in Note Balance of the Controlling Class
may
remove the Indenture Trustee without cause by notifying the Indenture Trustee
and the Issuer and may appoint a successor Indenture Trustee.
35
(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 Noteholders. The retiring Indenture Trustee will promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee.
(e) If
a successor Indenture
Trustee does not take office within 60 days after the retiring Indenture Trustee
tenders its resignation or is removed, the retiring Indenture Trustee, the
Issuer or the Noteholders of at least a majority in Note Balance of the
Controlling Class may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
(f)
Notwithstanding
the
replacement of the retiring Indenture Trustee pursuant to this Section 6.8,
any
obligations of the Issuer and the Administrator owing to the retiring Indenture
Trustee under Section 6.7 up to the date of removal will continue for the
benefit of the retiring Indenture Trustee.
Section
6.9 Successor
Indenture Trustee by Merger.
(a) If
the Indenture Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association will be the successor Indenture Trustee so long as such corporation
or banking association is otherwise qualified and eligible under Section 6.11.
The Indenture Trustee will promptly notify the Issuer, the Servicer and the
Rating Agencies of any such transaction.
(b) If,
at the time any such
successor by merger, conversion or consolidation to the Indenture Trustee
succeeds to the trusts created by this Indenture, any of the Notes have been
authenticated but not delivered, such successor may adopt the certificate of
authentication of any predecessor Indenture Trustee and deliver such Notes
so
authenticated. If at such time any of the Notes have not been authenticated,
any
successor to the Indenture Trustee may authenticate such Notes either in the
name of any predecessor Indenture Trustee or in the name of such successor
Indenture Trustee. In all such cases, such certificates will have the same
force
and effect provided for anywhere in the Notes or in this Indenture as the
certificate of the predecessor Indenture Trustee.
36
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.
37
(d) Any
separate trustee or
co-trustee may appoint the Indenture Trustee as its agent or attorney-in-fact
with power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its name. If
any
separate trustee or co-trustee dies, becomes incapable of acting, resigns or
is
removed, all of its estates, properties, rights, remedies and trusts will vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section
6.11 Eligibility;
Disqualification.
(a) The
Indenture Trustee
must satisfy the requirements of Section 310(a) of the TIA and must comply
with
Section 310(b) of the TIA. The Indenture Trustee or its parent must have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent annual published report of condition and must have a long-term debt
rating of investment grade by each of the Rating Agencies or must otherwise
be
acceptable to each of the Rating Agencies. Within 10 days after the Indenture
Trustee fails to satisfy any of the requirements set forth in this Section
6.11(a), the Indenture Trustee will notify the Issuer and the Servicer of such
failure.
(b) Within
90 days after the
occurrence of an Event of Default that has not been cured or waived, unless
authorized by the Securities and Exchange Commission, the Indenture Trustee
will
resign with respect to the Class A Notes, the Class B Notes, the Class C Notes
and/or the Class D Notes in accordance with Section 6.8, and the Issuer will
appoint a successor Indenture Trustee for any or all of such Class A Notes,
Class B Notes, Class C Notes and/or Class D Notes, as applicable, so that there
will be separate Indenture Trustees for the Class A Notes, Class B Notes, the
Class C Notes and the Class D Notes. If the Indenture Trustee fails to comply
with the terms of the preceding sentence, the Indenture Trustee must comply
with
TIA Section 310(b)(ii) and (iii).
(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
38
(iv)
provisions necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Indenture Trustee.
Nothing
in this Indenture or in such supplemental indenture will constitute such
Indenture Trustees co-trustees of the same trust and each such Indenture Trustee
will be a trustee of a trust or trusts under this Indenture separate and apart
from any trust or trusts under this Indenture administered by any other
Indenture Trustee. The indenture supplement will become effective upon the
removal of the retiring Indenture Trustee.
Section
6.12 Preferential
Collection of Claims Against Issuer.
The
Indenture Trustee will comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. An Indenture Trustee
who has resigned or been removed will be subject to Section 311(a) of the
TIA.
Section
6.13 Audits
of the Indenture Trustee.
The
Indenture Trustee agrees that, with reasonable prior notice, it will permit
any
authorized representative of the Servicer or the Administrator, during the
Indenture Trustee’s normal business hours, to examine and audit the books of
account, records, reports and other documents and materials of the Indenture
Trustee relating to (a) the performance of the Indenture Trustee’s obligations
under this Indenture, (b) any payments of fees and expenses of the Indenture
Trustee in connection with such performance and (c) any claim made by the
Indenture Trustee under this Indenture. In addition, the Indenture Trustee
will
permit such representatives to make copies and extracts of any such books and
records and to discuss the same with the Indenture Trustee’s officers and
employees. Each of the Servicer and the Administrator will, and will cause
its
authorized representatives to, hold in confidence all such information except
to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Servicer or the Administrator, as the case may be, may reasonably determine
that
such disclosure is consistent with its obligations under this Indenture. The
Indenture Trustee will maintain all such pertinent books, records, reports
and
other documents and materials for a period of 2 years after the termination
of
its obligations under this Indenture.
Section
6.14 Representations
and Warranties of the Indenture Trustee.
The
Indenture Trustee represents and warrants to the Issuer as of the Closing
Date:
(a) Organization
and Qualification.
The
Indenture Trustee is a banking corporation duly organized, validly existing
and
in good standing under the laws of the State of New York. The Indenture Trustee
is qualified as a foreign banking corporation in good standing and has obtained
all necessary licenses and approvals in all jurisdictions in which the ownership
or lease of its properties or the conduct of its activities requires such
qualification, license or approval, unless the failure to obtain such
qualifications, licenses or approvals would not reasonably be expected to have
a
material adverse effect on the Indenture Trustee's ability to perform its
obligations under this Indenture or the other Basic Documents to which it is
a
party.
(b) Power,
Authorization and Enforceability.
The
Indenture Trustee has the power and authority to execute deliver and perform
the
terms 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.
39
(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 compli-ance by the Indenture Trustee with this Indenture
will
not (i) violate any federal or New York State law, governmental rule or
regulation governing the banking or trust powers of the Indenture Trustee or
any
judgment or order binding on it or (ii) conflict with, result in a breach of,
or
constitute (with or without notice or lapse of time or both) a default under
its
charter documents or by-laws or any indenture, mortgage, deed of trust, loan
agreement, guarantee or similar agreement or instrument under which the
Indenture Trustee is a debtor or guarantor or (iii) violate any law or, to
the
Indenture Trustee's knowledge, any order, rule, or regulation applicable to
the
Indenture Trustee of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Indenture Trustee or its properties, in each case which conflict,
breach, default, lien, or violation would reasonably be expected to have a
material adverse effect on the Indenture Trustee's ability to perform its
obligations under this Indenture.
(d) No
Proceedings.
To the
Indenture Trustee's knowledge, there are no proceedings or investigations
pending or overtly threatened in writing, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over the Indenture Trustee or its properties: (i) asserting the invalidity
of
any of this Indenture or the Sale and Servicing Agreement (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by any of the Basic Documents, (iii) seeking any determination
or
ruling that would reasonably be expected to have a material adverse effect
on
the Indenture Trustee's ability to perform its obligations under, or the
validity or enforceability of, this Indenture.
(e) Eligibility.
The
Indenture Trustee satisfies the requirements of Section 310(a) of the TIA.
The
Indenture Trustee or its parent has a combined capital and surplus of at least
$50,000,000 as set forth in its most recent annual published report of
condition.
(f)
Information
Provided by the Indenture Trustee.
The
information provided by the Indenture Trustee in any certificate delivered
by a
Responsible Person of the Indenture Trustee is true and correct in all material
respects.
Section
6.15 Duty
to Update Disclosure.
The
Indenture Trustee will notify and provide information, and certify such
information in an Officer's Certificate, to the Depositor upon any event or
condition relating to the Indenture Trustee or actions taken by the Indenture
Trustee that (A) (i) is required to be disclosed by the Depositor under Item
2
(the institution of, material developments in, or termination of legal
proceedings against The Bank of New York that are material to Noteholders)
of
Form 10-D under the Exchange Act within 5 days of such occurrence or (ii) the
Depositor reasonably requests of the Indenture Trustee that the Depositor,
in
good faith, believes is necessary to comply with Regulation AB within 5 days
of
such request or (B) (i) is required to be disclosed under Item 5 (submission
of
matters to a vote of Noteholders) of Form 10-D under the Exchange Act within
5
days of a Responsible Person of the Indenture Trustee becoming aware of such
submission, (ii) is required to be disclosed under Item 6.02 (resignation,
removal, replacement or substitution of The Bank of New York as Indenture
Trustee) or Item 6.04 (failure to make a distribution when required) of Form
8-K
under the Exchange Act within 2 days of a Responsible Person of the Indenture
Trustee becoming aware of such occurrence or (iii) causes the information
provided by the Indenture Trustee in any certificate delivered by a Responsible
Person of the Indenture Trustee to be untrue or incorrect in any material
respect or is necessary to make the statements provided by the Indenture Trustee
in light of the circumstances in which they were made not misleading within
5
days of a Responsible Person of the Indenture Trustee becoming aware
thereof.
40
Section
6.16 Establishment
of Swap Collateral Acounts.
If the
Swap Counterparty is required to collateralize the Interest Rate Swap pursuant
to the Interest Rate Swap, the Indenture Trustee, upon request by the
Administrator, will establish individual collateral accounts and will hold
any
securities deposited in such accounts in trust and will, to the extent such
investment options are acceptable to the Indenture Trustee, invest any cash
amounts in such accounts in Permitted Investments.
ARTICLE
VII
NOTEHOLDERS’
LISTS AND REPORTS
Section
7.1 Names
and Addresses of Noteholders.
If the
Indenture Trustee is not the Note Registrar, the Issuer will furnish a list
of
the names and addresses of the Noteholders of any Definitive Notes to the
Indenture Trustee (a) not more than 5 days after each Record Date, as of such
Record Date and (b) not more than 30 days after receipt by the Issuer of a
request from the Indenture Trustee, as of a date not more than 10 days before
the time such list is furnished. If the Indenture Trustee is the Note Registrar,
the Indenture Trustee, upon the request of the Owner Trustee, will furnish
within 10 days to the Owner Trustee a list of Noteholders of all Book-Entry
Notes as of the date specified by the Owner Trustee.
Section
7.2 Preservation
of Information; Communications to Noteholders.
(a) The
Indenture Trustee
will preserve, in as current a form as is reasonably practicable, the names
and
addresses of the Noteholders contained in the most recent list furnished to
the
Indenture Trustee pursuant to Section 7.1 and the names and addresses of
Noteholders received by the Indenture Trustee in its capacity as Note Registrar.
The Indenture Trustee may destroy any list furnished to it pursuant to Section
7.1 upon receipt of a new list.
(b) Noteholders
may
communicate pursuant to Section 312(b) of the TIA with other Noteholders with
respect to their rights under this Indenture or under the Notes.
(c) The
Issuer, the Indenture
Trustee and the Note Registrar will have the protection of Section 312(c) of
the
TIA.
Section
7.3 Reports
by Issuer.
(a) The
Issuer
will:
41
(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) (i) 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, 2007, the Indenture Trustee will prepare and mail
to each Noteholder a report dated as of such April 15 that complies with Section
313(a) of the TIA, but only if such report is required pursuant Section 313(a)
of the TIA. The Indenture Trustee will also prepare and mail to Noteholders
any
report required pursuant to Section 313(b) of the TIA. Any report mailed to
the
Noteholders pursuant to this Section 7.4(a) will be mailed in compliance with
Section 313(c) of the TIA.
(b) The
Indenture Trustee
will file with the Securities and Exchange Commission and any stock exchange
on
which the Notes are listed a copy of each report delivered pursuant to Section
7.4(a) at the time of its mailing to Noteholders. The Issuer will notify the
Indenture Trustee if and when the Notes are listed on any stock
exchange.
ARTICLE
VIII
ACCOUNTS,
DISBURSEMENTS AND RELEASES
Section
8.1 Collection
of Money.
(a) Except
as otherwise
provided in this Indenture, the Indenture Trustee may demand payment or delivery
of, and will receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture and the Sale and Servicing Agreement. The Indenture Trustee will
apply
all such money received by it as provided in this Indenture and the Sale and
Servicing Agreement.
42
(b) The
Issuer, or the Administrator on its behalf, will direct each Swap Counterparty
to remit any Net Swap Receipts and any Swap Termination Payments 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 Payment as an initial payment to a replacement Swap
Counterparty.
Section
8.2 Trust
Accounts; Distributions and Disbursements.
(a) On
or before the Closing
Date, the Issuer will cause the Servicer or the Depositor, as applicable, to
establish the Trust Accounts as provided in Section 4.1 of the Sale and
Servicing Agreement.
(b) On
or before each Payment
Date, the Indenture Trustee will withdraw all amounts required to be withdrawn
from the Reserve Account and deposit them into the Collection Account pursuant
to Section 4.4 of the Sale and Servicing Agreement.
(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:
(i)
first,
to the payment of
all amounts, including indemnities, then due to the Indenture Trustee and the
Owner Trustee (pro rata based on the amount due to such Person) 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 Counterparty, any Net Swap Payment due;
(iv)
fourth, to the Noteholders of Class A Notes and the Swap Counterparty,
interest due on the Class A Notes and any Swap Termination Payment due to the
Swap Counterparty, pro rata based on the Note Balances of the Class A Notes
and
the amount of such Swap Termination Payment; provided that if any amounts
allocable to the Class A Notes are not needed to pay interest due on such Notes,
such amounts will be applied to pay the portion of any Swap Termination Payment
remaining unpaid;
(v) fifth,
to the Principal
Payment Account, the First Priority Principal Payment;
43
(vi)
sixth, to the Noteholders
of Class B Notes, the Accrued Note Interest for the Class B Notes;
(vii)
seventh, to the Principal Payment Account, the Second Priority Principal
Payment;
(viii)
eighth, to the Noteholders of Class C Notes, the Accrued Note Interest for
the
Class C Notes;
(ix) ninth,
to the Principal
Payment Account, the Third Priority Principal Payment;
(x)
tenth,
to the Noteholders
of Class D Notes, the Accrued Note Interest for the Class D Notes;
(xi) eleventh,
to the Reserve
Account, the amount required to reinstate the amount in the Reserve Account
up
to the Specified Reserve Balance;
(xii) twelfth,
to the Principal
Payment Account, the Regular Principal Payment;
(xiii)
thirteenth, to the
payment of all amounts due to the Indenture Trustee and the Owner Trustee (pro
rata based on the amount due to such Person) to the extent not paid by the
Depositor or Administrator or pursuant to Section 8.2(c)(i) on such Payment
Date; and
(xiv)
fourteenth, to the Trust Distribution Account (or if the Trust Distribution
Account has not been established, to the holder of the Residual Interest),
any
funds remaining on deposit in the Collection Account with respect to the
Collection Period preceding such Payment Date.
(d) On
each Payment Date, the
Indenture Trustee (based on the information contained in the most recent Monthly
Investor Report) will withdraw the funds on deposit in the Principal Payment
Account and make deposits and payments in the following order of priority,
in
each case, applied ratably in accordance with the Note Balance of the Notes
of
such Class:
(i)
first,
to
the Noteholders of the Class A-1 Notes in payment of principal until the Note
Balance of the Class A-1 Notes has been reduced to zero;
(ii) second,
to the Noteholders of the Class A-2a Notes and the Noteholders of the Class
A-2b
Notes, pro rata based on their respective Note Balances, in payment of principal
until the aggregate Note Balance of the Class A-2a Notes and the Class A-2b
Notes has been reduced to zero;
(iii) third,
to
the Noteholders of the Class A-3 Notes in payment of principal until the Note
Balance of the Class A-3 Notes has been reduced to zero;
44
(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(a)(iv), then on each Payment Date
following the Collection Period during which 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:
(i)
first,
to
the payment of all amounts due to the Indenture Trustee and the Owner Trustee
(pro rata based on the amount due to such Person);
(ii) second,
to the Servicer for due and unpaid Servicing Fees;
(iii)
third,
to
the Swap Counterparty, any Net Swap Payment due;
(iv)
fourth,
to the Noteholders of Class A Notes and the Swap Counterparty,
interest due on the Class A Notes and any Swap Termination Payment due to the
Swap Counterparty, pro rata based on the Note Balances of the Class A Notes
and
the amount of such Swap Termination Payment; provided that if any amounts
allocable to the Class A Notes are not needed to pay interest due on such Notes,
such amounts will be applied to pay the portion of any Swap Termination Payment
remaining unpaid;
(v) fifth,
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;
45
(vi)
sixth,
to
the Noteholders of the Class A-2a Notes and the Noteholders of the Class A-2b
Notes, pro rata based on their respective principal balance in payment of
principal until the Note Balance of the Class A-2a Notes and the Class A-2b
Notes is reduced to zero;
(vii)
seventh,
to the Noteholders of the Class A-3 Notes in payment of principal until the
Note
Balance of the Class A-3 Notes is reduced to zero;
(viii)
eighth, to the Noteholders of the Class A-4 Notes in payment of principal until
the Note Balance of the Class A-4 Notes is reduced to zero;
(ix) ninth,
to
the Noteholders of Class B Notes, the Accrued Note Interest for the Class B
Notes;
(x)
tenth,
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;
(xi) eleventh,
to the Noteholders of Class C Notes, the Accrued Note Interest for the Class
C
Notes;
(xii)
twelfth,
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;
(xiii)
thirteenth, to the Noteholders of Class D Notes, the Accrued Note Interest
for
the Class D Notes;
(xiv)
fourteenth, to Noteholders of the Class D Notes in payment of principal until
the Note Balance of the Class D Notes is reduced to zero; and
(xv)
fifteenth,
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 (xiv).
(f) Each
of (i) the
subordination of interest payments to the Noteholders of the Class B Notes
to
the payment of principal to the Noteholders of the Class A Notes, (ii) the
subordination of interest payments to the Noteholders of the Class C Notes
to
the payment of principal to the Noteholders of the Class A Notes and the Class
B
Notes and (iii) the subordination of interest payments to the Noteholders of
the
Class D Notes to the payment of principal to the Noteholders of the Class A
Notes, the Class B Notes and the Class C Notes pursuant to Section 8.2(c) is
deemed a subordination agreement within the meaning of Section 510(a) of the
Bankruptcy Code.
Section
8.3 General
Provisions Regarding Bank Accounts.
46
(a) The
Indenture Trustee
will not be liable by reason of any insufficiency in any of the Bank Accounts
resulting from any loss on any Permitted Investment included in the Bank
Accounts, except for losses attributable to the Indenture Trustee’s failure to
make payments on such Permitted Investments issued by the Indenture Trustee,
in
its commercial capacity as principal obligor and not as trustee. In addition,
the Indenture Trustee has no duty to monitor the activities of any Qualified
Institution or Qualified Trust Institution (unless such Qualified Institution
or
Qualified Trust Institution is also the Indenture Trustee) and will not be
liable for the actions or inactions of any Qualified Institution or Qualified
Trust Institution (unless such Qualified Institution or Qualified Trust
Institution is also the Indenture Trustee).
(b) A
Responsible Person of
the Indenture Trustee will provide notice to the Qualified Institution or
Qualified Trust Institution maintaining the Reserve Account and the Collection
Account (if not the Indenture Trustee) if an Event of Default has occurred
and
is continuing with respect to the Notes.
Section
8.4 Release
of Collateral.
(a) The
Indenture Trustee
will release property from the lien of this Indenture only upon receipt of
an
Issuer Request accompanied by an Officer's Certificate and an Opinion of Counsel
meeting the requirements of Section 11.1.
(b) To
facilitate the
Servicer’s servicing of the Receivables pursuant to the Sale and Servicing
Agreement, the Indenture Trustee will be deemed to release, and does release,
and each Noteholder or Note Owner by its acceptance of a Note or a beneficial
interest in a Note respectively acknowledges that the Indenture Trustee will
release any and all liens and other rights and interests it possesses or may
possess from time to time, without further action of the parties, in, to and
under:
(i)
each
Receivable and all proceeds of such Receivable, effective on the date on which
a
Purchase Amount with respect to such Receivable is deposited into the Collection
Account;
(ii) each
Receivable and the proceeds of such Receivable and the rights of Ford Credit
(individually or as Servicer) under any contract or agreement for the sale
of
such Receivable in accordance with Section 3.3 of the Sale and Servicing
Agreement, effective immediately prior to the date on which such contract or
agreement arises (provided that the Servicer will receive and apply all proceeds
of such sale in accordance with Section 3.3 of the Sale and Servicing
Agreement); and
(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.
47
(c) Upon
request by the
Servicer or the Issuer, the Indenture Trustee will execute instruments and
authorize or file termination statements to release property from the lien
of
this Indenture or convey the Indenture Trustee’s interest in the same to effect
the transfers of Receivables permitted by Sections 8.4 or 10.1. No party relying
upon an instrument or authorization executed by the Indenture Trustee as
provided in this Article VIII is required to ascertain the Indenture Trustee’s
authority, inquire into the satisfaction of any conditions precedent or require
evidence as to the application of any monies.
(d) The
Indenture Trustee, at
such time as there are no Notes Outstanding, all sums due from the Issuer to
the
Indenture Trustee pursuant to Section 6.7 have been paid in full and
all
payments due under the Interest Rate Swap (including any Swap Termination
Payment) 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.
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 Counterparty;
48
(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:
(i)
the
Issuer delivers, or causes the Administrator to deliver to the Indenture Trustee
an Officer’s Certificate to the effect that such amendment will not have a
material adverse effect on the Notes;
(ii) the
Issuer delivers an Opinion of Counsel to the Indenture Trustee to the effect
that such amendment will not (A) cause any Note to be deemed sold or exchanged
for purposes of Section 1001 of the Code, (B) cause the Issuer to be treated
as
an association or publicly traded partnership taxable as a corporation for
U.S.
federal income tax purposes, or (C) with respect to the issuance of additional
securities only, adversely affect the treatment of the Notes as debt for U.S.
federal income tax purposes;
(iii)
each
Rating Agency provides Rating Agency Confirmation with respect to such
amendment; and
(iv) with
respect to the issuance of additional securities only, (A)
payments of interest on such additional securities on each Payment Date will
be
subordinate to payments of interest on the Notes, (B) payments of principal
of
such additional securities will be subordinate to payments of principal on
the
Notes and (C) either (x) such additional securities are registered under the
Securities Act or (y) the Issuer delivers an Opinion of Counsel to the Indenture
Trustee to the effect that the offer, sale and delivery of such additional
securities do not require registration under the Securities Act.
49
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
Counterparty.
No
such
supplemental indenture, without the consent of each Noteholder of each
Outstanding Note adversely affected by such supplemental indenture,
will:
(i)
modify
or
alter Section 9.1 or this Section 9.2;
(ii) 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;
(iii)
reduce
the percentage of the Note Balance of the Notes Outstanding or the Controlling
Class required for any action;
(iv) modify
or
alter (A) the proviso to the definition of “Outstanding” or (B) the definition
of “Controlling Class”;
50
(v)
modify
the calculation of the amount of any payment of interest or principal due on
any
Note on any Payment Date; or
(vi)
permit
the creation of any lien ranking prior or equal to the lien of this Indenture
with respect to any part of the Collateral other than Permitted Liens, or except
as permitted by this Indenture or the other Basic Documents, release the lien
of
this Indenture with respect to any part of the Collateral.
(b) It
will not be necessary
for any Act of Noteholders under this Section 9.2 to approve the particular
form
of any proposed supplemental indenture, but it will be sufficient if such Act
of
Noteholders approves the substance of such proposed supplemental
indenture.
Section
9.3 Execution
of Supplemental Indentures.
In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modification of the trusts created
by this Indenture, the Indenture Trustee will be entitled to receive, and
subject to Sections 6.1 and 6.2, will be fully protected in relying upon, an
Opinion of Counsel to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that all conditions
precedent to the execution and delivery of such supplemental indenture have
been
satisfied. The Indenture Trustee may, but is not obligated to, enter into any
such supplemental indenture that affects the Indenture Trustee’s own rights,
powers, duties, obligations, liabilities or immunities under this Indenture
or
otherwise.
Section
9.4 Effect
of Supplemental Indenture.
Upon the
execution of any supplemental indenture pursuant to this Article IX, this
Indenture will be modified and amended in accordance with such supplemental
indenture, and such supplemental indenture will be part of this Indenture for
any and all purposes. Every Noteholder of Notes authenticated and delivered
before or after such supplemental indenture will be bound by such supplemental
indenture.
Section
9.5 Conformity
with Trust Indenture Act.
Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX will conform to the requirements of the Trust Indenture
Act
as then in effect so long as this Indenture is qualified under the Trust
Indenture Act.
Section
9.6 Reference
in Notes to Supplemental Indentures.
Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee will,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee so determine, new Notes so modified as to conform, in the opinion of
the
Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE
X
REDEMPTION
OF NOTES
Section
10.1 Redemption.
51
(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
Counterparty:
(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 in the Collection Account the amount required
pursuant to Section 8.1 of the Sale and Servicing Agreement, whereupon all
such
Notes will be paid in full on the Redemption Date.
(c) On
the Redemption Date,
the outstanding principal amount of the Notes will be due and payable and
interest on the Notes will cease to accrue from and after the Redemption Date,
unless the Issuer defaults in the payment of the Notes on the Redemption Date.
Upon redemption, the Indenture Trustee agrees to execute any and all instruments
to release the Collateral from the lien of this Indenture and release to the
Issuer or any other Person entitled to any funds then on deposit in the Bank
Accounts under this Indenture.
52
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 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.
53
(ii) Whenever
any property or securities are to be released from the lien of this Indenture,
the Issuer will furnish to the Indenture Trustee (A) an Officer’s Certificate
certifying or stating the opinion of each person signing such certificate as
to
the fair value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions of this Indenture and (B) an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated by
Section 11.1(c)(iii), or securities released from the lien of this Indenture
since the commencement of the then-current calendar year, as set forth in the
certificates required by Section 11.1(c)(ii)(A) and this Section 11.1(c)(ii)(B),
equals 10% or more of the Note Balance of the Notes Outstanding, but such
certificate need not be furnished in the case of any release of property or
securities, if the fair value of such property or securities as set forth in
the
related Officer’s Certificate is less than $25,000 or less than 1% of the Note
Balance of the Notes Outstanding.
(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.
54
(b) In
any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by,
or
covered by the opinion of, only one such Person, or that they be certified
or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Section
11.3 Acts
of Noteholders.
(a) Any
request, demand,
authorization, direction, notice, consent, waiver or other action provided
by
this Indenture to be given or taken by Noteholders or a specified percentage
of
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing. Except as otherwise provided in this Indenture such
action will become effective when such instrument or instruments are delivered
to the Indenture Trustee, and, if required, to the Issuer. Such instrument
or
instruments (and the action embodied in such instrument or instruments and
evidenced by such instrument or instruments) are sometimes referred to in this
Indenture as the “Act
of
Noteholders”
signing
such instrument or instruments. Proof of execution of any such instrument or
of
a writing appointing any such agent will be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section
11.3.
(b) The
fact and date of the
execution by any Person of any such instrument or writing may be proved in
any
manner that the Indenture Trustee deems sufficient.
(c) Any
Act of Noteholders
will bind the Noteholder of every Note issued upon the registration of such
Note
or in exchange for such Note or in lieu of such Note, in respect of anything
done, omitted or suffered to be done by the Indenture Trustee or the Issuer
in
reliance on such Note, whether or not notation of such action is made upon
such
Note.
Section
11.4 Notices,
etc., to Indenture Trustee, Issuer and Rating Agencies.
(a) Unless
otherwise
specified in this Indenture, all notices, requests, demands, consents, waivers
or other communications to or from the parties to this Indenture must be in
writing and will be deemed to have been given and made:
(i)
upon
delivery or, in the case of a letter mailed by registered first class mail,
postage prepaid, 3 days after deposit in the mail;
(ii) in
the
case of a fax, when receipt is confirmed by telephone, reply email or reply
fax
from the recipient;
(iii)
in
the
case of an email, when receipt is confirmed by telephone or reply email from
the
recipient; and
55
(iv)
in
the
case of an electronic posting to a password-protected website to which the
recipient has been provided access, upon delivery of an email to such recipient
stating that such electronic posting has occurred.
Unless
otherwise specified in this Indenture, any such notice, request, demand, consent
or other communication must be delivered or addressed as set forth on Schedule
B
to the Sale and Servicing Agreement or at such other address as any party may
designate by notice to the other parties.
(b) Any
notice required or
permitted to be mailed to a Noteholder must be sent by overnight delivery,
mailed by registered first class mail, postage prepaid, or sent by fax, to
the
address of such Person as shown in the Note Register. Any notice so mailed
within the time prescribed in this Indenture will be conclusively presumed
to
have been duly given, whether or not the Noteholder receives such
notice.
Section
11.5 Notices
to Noteholders; Waiver.
(a) Any
notice to Noteholders
will be sufficiently given (unless otherwise provided in this Indenture) if
in
writing, sent by overnight delivery, mailed by registered first class mail,
postage prepaid, or sent by facsimile, to each Noteholder adversely affected
by
such event, at its address or facsimile number as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder will affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner provided in this Indenture will conclusively be
presumed to have been duly given.
(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.
56
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 the Swap Counterparty has no 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.
Section
11.10 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
11.11 Severability.
If any
of the covenants, agreements or terms of this Indenture is held invalid, illegal
or unen-forceable, 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.
Section
11.12 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
11.13 Headings.
The
headings in this Indenture are included for convenience only and will not affect
the meaning or interpretation of this Indenture.
Section
11.14 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.
57
Section
11.15 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
capaci-ties). 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
11.16 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 agree-ment is deemed a subordination agreement within the meaning
of Section 510(a) of the Bankruptcy Code. The Indenture Trustee, each Noteholder
and each Note Owner further acknowledges and agrees that no adequate remedy
at
law exists for a breach of this Section 11.16 and this Section 11.16 may be
enforced by an action for specific performance.
(b) This
Section 11.16 is for
the third party benefit of those entitled to rely on this Section 11.16 and
will
survive the termination of this Indenture.
58
Section
11.17 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.
59
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 2006-B
|
||||
|
By:
|
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|||
|
Title:
|
Authorized
Person
|
|||
|
THE
BANK OF NEW YORK,
|
||||
|
not
in its individual capacity but solely as Indenture
Trustee
|
||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇
|
|||
|
Title:
|
Assistant
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 HEREOF, 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
|
$657,000,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AA 7
|
CLASS
A-1
5.4048% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of SIX HUNDRED FIFTY-SEVEN 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 September 2006 (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
August 1, 2006 (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 September 2007 Payment Date (the “Class
A-1 Final Scheduled Payment Date”)
or the
Redemption Date pursuant to Section 10.1 of the Indenture. Notwithstanding
the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the Indenture. All principal
payments on the Class A-1 Notes will be made ratably to the Noteholders entitled
to such principal payments. Capitalized terms used but not otherwise defined
in
this Note are defined in Article I of the Indenture, which also contains rules
as to usage applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment Date from
and including the previous Payment Date on which interest has been paid (or,
in
the case of the initial Payment Date, from and including the Closing Date)
to
but excluding such Payment Date. Interest will be computed on the basis of
actual days elapsed and a 360-day year.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note will be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class A-1 5.4048% Asset Backed Notes (the
“Class
A-1 Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-2a Notes, the Class
A-2b Notes, the Class A-3 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-1-2
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 Counterparty to receive payments (other
than any Swap Termination Payment) pursuant to the Interest Rate Swap. 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-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 the other limitations set forth in the Indenture.
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 hereof or such Noteholder’s attorney duly authorized
in writing, with such signature guaranteed by an “eligible guarantor
institution” meeting the require-ments 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.
A-1-3
Each
Noteholder or Note Owner, by its acceptance of a Note or a beneficial interest
in a Note, covenants and agrees that no recourse may be taken 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 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
distribu-tions 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 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
bank-ruptcy, 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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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.
A-1-4
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 Inden-ture 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.
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.
A-1-5
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 defi-ciency, 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-1-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-1 Notes designated above and referred to in the
Indenture.
Date:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
A-1-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said 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
member-ship or participation in Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
A-1-8
EXHIBIT
A-2a
FORM
OF
CLASS A-2a NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTA-TIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORA-TION (“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 HEREOF FOR VALUE
OR
OTHER-WISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, 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 HEREOF.
A-2a-1
|
REGISTERED
|
$470,000,000
|
|
No.
▇-▇
|
▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇ 5
|
CLASS
A-2a 5.42% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of FOUR HUNDRED SEVENTY 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 September 2006 (each, a “Payment
Date”)
in an
amount equal to the aggregate amount payable to Noteholders of Class A-2a Notes
on such Payment Date from the Principal Payment Account in respect of principal
on the Class A-2a Notes pursuant to Section 3.1 of the Indenture, dated as
of
August 1, 2006 (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 2009 Payment Date (the “Class
A-2a Final Scheduled Payment Date”)
or the
Redemption Date pursuant to Section 10.1 of the Indenture. Notwithstanding
the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the Indenture. All principal
payments on the Class A-2a Notes will be made ratably to the Noteholders
entitled to such principal payments. Capitalized terms used but not otherwise
defined in this Note are defined in Article I of the Indenture, which also
contains rules as to usage applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Indenture. Interest on this Note will accrue for each Payment Date from
and including the 15th
day of
the calendar month preceding each Payment Date (or, in the case of the initial
Payment Date, from and including the Closing Date) to but excluding the
15th
day of
the following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note will be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this
Note.
A-2a-2
This
Note
is one of a duly authorized issue of Class A-2a 5.42% Asset Backed Notes (the
“Class
A-2a Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2b Notes, the Class A-3 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-2a Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-2a Notes are
subordinated to the rights of the Swap Counterparty to receive payments (other
than any Swap Termination Payment) pursuant to the Interest Rate Swap. 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-2a
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and the other limitations set forth in the Indenture.
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 hereof or such Noteholder’s attorney duly authorized
in writing, with such signature guaranteed by an “eligible guarantor
institution” meeting the require-ments 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.
A-2a-3
Each
Noteholder or Note Owner, by its acceptance of a Note or a beneficial interest
in a Note, covenants and agrees that no recourse may be taken 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 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
distribu-tions 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 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
bank-ruptcy, 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.
A-2a-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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.
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.
A-2a-5
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 defi-ciency, 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 hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note will not be
entitled to any benefit under the Indenture, or be valid or obligatory for
any
purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-2a-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-2a Notes designated above and referred to in the
Inden-ture.
Date:
August___,
2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
A-2a-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
member-ship or participation in Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
A-▇▇-▇
▇▇▇▇▇▇▇
▇-▇▇
FORM
OF
CLASS A-2b NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTA-TIVE 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 HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, 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 HEREOF.
A-2b-1
|
REGISTERED
|
$470,000,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AC 3
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
CLASS
A-2b FLOATING RATE ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of FOUR HUNDRED SEVENTY 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 September 2006 (each, a “Payment
Date”)
in an
amount equal to the aggregate amount payable to Noteholders of Class A-2b Notes
on such Payment Date from the Principal Payment Account in respect of principal
on the Class A-2b Notes pursuant to Section 3.1 of the Indenture, dated as
of
August 1, 2006 (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 2009 Payment Date (the “Class
A-2b Final Scheduled Payment Date”)
or the
Redemption Date pursuant to Section 10.1 of the Indenture. Notwithstanding
the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the Indenture. All principal
payments on the Class A-2b Notes will be made ratably to the Noteholders
entitled to such principal payments. Capitalized terms used but not otherwise
defined in this Note are defined in Article I of the Indenture, which also
contains rules as to usage applicable to this Note.
The
Issuer will pay interest on this Note at a rate based on LIBOR determined in
accordance with the terms of the Indenture which rate will not be less than
LIBOR plus 0.02% 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 Inden-ture. 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.
A-2b-2
This
Note
is one of a duly authorized issue of Class A-2b Floating Rate Asset Backed
Notes
(the “Class
A-2b Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2a Notes, the Class A-3 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-2b Notes are and will be equally and ratably secured by the collateral pledged
as security therefore as provided in the Indenture. The Class A-2b Notes are
subordinated to the rights of the Swap Counterparty to receive payments (other
than any Swap Termination Payment) pursuant to the Interest Rate Swap. Interest
on and principal of the Notes will be payable in accordance with the priority
of
payments set forth in Section 8.2 of the Indenture.
Payments
of interest on this Note on each Payment Date, together with any installment
of
principal to the extent not in full payment of this Note, will be made to the
Registered Noteholder of this Note either by wire transfer in immediately
available funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities for such wire transfer, if such Noteholder has
provided to the Note Registrar appropriate written instructions at least 5
Business Days before such Payment Date and such Noteholder’s Notes in the
aggregate evidence a denomination of not less than $1,000,000, or, if not,
by
check mailed first class mail, postage prepaid, to such Registered Noteholder’s
address as it appears on the Note Register on each Record Date. However, unless
Definitive Notes have been issued to Note Owners, payment will be made by wire
transfer in immediately available funds to the account designated by Cede &
Co., as nominee of the Clearing Agency or any successor nominee. Such payments
will be made without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note effected by any
payments made on any Payment Date will be binding upon all future Noteholders
of
this Note and of any Note issued upon the registration of transfer of this
Note
or in exchange of this Note or in lieu of this Note, whether or not noted on
this Note. If funds are expected to be available for payment in full of the
then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the
Registered Noteholder of this Note as of the preceding Record Date by notice
mailed or transmitted by facsimile before such Payment Date, and the amount
then
due and payable will be payable only upon presentation and surrender of this
Note at the Indenture Trustee’s Corporate Trust Office or at the office of the
Indenture Trustee’s agent appointed for such purposes located in The City of New
York.
The
Issuer will pay interest on overdue installments of interest at the Class A-2b
Note Interest Rate to the extent lawful.
The
Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
A-2b-3
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and the other limitations set forth in the Indenture.
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 hereof 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 a beneficial interest
in a Note, covenants and agrees that no recourse may be taken 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 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
distribu-tions 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 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
bank-ruptcy, 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.
A-2b-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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.
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.
A-2b-5
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 defi-ciency, 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 hereon has been executed by the Indenture
Trustee whose name appears below by manual signature, this Note will not be
entitled to any benefit under the Indenture, or be valid or obligatory for
any
purpose.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
A-2b-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-2b Notes designated above and referred to in the
Inden-ture.
Date:
August___,
2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
A-2b-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
member-ship or participation in Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
A-▇▇-▇
▇▇▇▇▇▇▇
▇-▇
FORM
OF
CLASS A-3 NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTA-TIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORA-TION (“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 HEREOF FOR VALUE
OR
OTHER-WISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, 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-3-1
|
REGISTERED
|
$730,000,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AD 1
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
CLASS
A-3
5.26% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of SEVEN HUNDRED THIRTY 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 September 2006 (each, a “Payment
Date”)
in an
amount equal to the aggregate amount payable to Noteholders of Class A-3 Notes
on such Payment Date from the Principal Payment Account in respect of principal
on the Class A-3 Notes pursuant to Section 3.1 of the Indenture, dated as of
August 1, 2006 (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 2010 Payment Date (the “Class
A-3 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-3 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 Inden-ture. 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 com-puted 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.
A-3-2
This
Note
is one of a duly authorized issue of Class A-3 5.26% Asset Backed Notes (the
“Class
A-3 Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2a Notes, the Class A-2b Notes, the Class A-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-3 Notes are and will be equally and ratably secured by the collateral pledged
as security therefor as provided in the Indenture. The Class A-3 Notes are
subordinated to the rights of the Swap Counterparty to receive payments (other
than any Swap Termination Payment) pursuant to the Interest Rate Swap. 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-3
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.
A-3-3
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and the other limitations set forth in the Indenture.
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 hereof or such Noteholder’s attorney duly authorized
in writing, with such signature guaranteed by an “eligible guarantor
institution” meeting the require-ments 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 a beneficial interest
in a Note, covenants and agrees that no recourse may be taken 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 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
distribu-tions 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 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
bank-ruptcy, 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.
A-3-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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.
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.
A-3-5
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 defi-ciency, 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 hereon 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 PAGE INTENTIONALLY LEFT BLANK.
A-3-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class A-3 Notes designated above and referred to in the
Inden-ture.
Date:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
A-3-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
membership or participation in 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 REPRESENTA-TIVE 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 HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, 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
|
$438,560,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AE 9
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
CLASS
A-4
5.25% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of FOUR HUNDRED THIRTY-EIGHT MILLION FIVE HUNDRED SIXTY 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 September
2006 (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
August 1, 2006 (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 September 2011 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 Inden-ture. 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 com-puted 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.
A-4-2
This
Note
is one of a duly authorized issue of Class A-4 5.25% 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-2a Notes, the Class A-2b Notes, the Class A-3 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-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 Counterparty to receive payments (other
than any Swap Termination Payment) pursuant to the Interest Rate Swap. 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.
A-4-3
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face of this Note and the other limitations set forth in the Indenture.
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 hereof or such Noteholder’s attorney duly authorized
in writing, with such signature guaranteed by an “eligible guarantor
institution” meeting the require-ments 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 a beneficial interest
in a Note, covenants and agrees that no recourse may be taken 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 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
distribu-tions 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 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
bank-ruptcy, 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.
A-4-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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.
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.
A-4-5
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 defi-ciency, 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 hereon 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-4-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
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:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
A-4-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
member-ship or participation in Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
A-4-8
EXHIBIT
B
FORM
OF
CLASS B NOTE
UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTA-TIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORA-TION (“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 HEREOF FOR VALUE
OR
OTHER-WISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST IN THIS NOTE.
EACH
NOTE
OWNER, BY ACCEPTING A BENEFICIAL INTEREST IN THIS NOTE, IS DEEMED TO REPRESENT
THAT ITS PURCHASE AND HOLDING OF SUCH NOTE DOES NOT CONSTITUTE AND WILL NOT
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE
PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH IN THIS NOTE.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE MAY BE LESS THAN
THE
AMOUNT SHOWN ON THE FACE OF THIS NOTE.
B-1
|
REGISTERED
|
$87,333,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AF 6
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
Class
B
5.43% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of EIGHTY-SEVEN MILLION THREE HUNDRED THIRTY-THREE 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 September
2006 (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 August
1, 2006 (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 2012 Payment Date (the “Class
B Final Scheduled Payment Date”)or
the
Redemption Date pursuant to Section 10.1 of the Indenture. Notwithstanding
the
foregoing, the entire unpaid principal amount of the Notes will be due and
payable on the date on which the Notes are declared to be immediately due and
payable in the manner provided in Section 5.2(a) of the Indenture. All principal
payments on the Class B Notes will be made ratably to the Noteholders entitled
to such principal payments. Capitalized terms used but not otherwise defined
in
this Note are defined in Article I of the Indenture, which also contains rules
as to usage applicable to this Note.
The
Issuer will pay interest on this Note at the rate per annum shown above on
each
Payment Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in Section
3.1
of the Inden-ture. 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 com-puted 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.
B-2
This
Note
is one of a duly authorized issue of Class B 5.43% Asset Backed Notes (the
“Class
B Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2a Notes, the Class A-2b Notes, the Class A-3 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 therefor as provided in the Indenture. The Class B Notes are
subordinated in right of payment to the Class A Notes and to amounts payable
to
the Swap Counterparty pursuant to the Interest Rate Swap as and to the extent
provided in 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 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 hereof 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
registra-tion 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 hereof 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 denomina-tions 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.
B-3
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
Inden-ture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in
its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly 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 and Note Owner,
by its acceptance of a Note or a beneficial interest in a Note, acknowledges
and
agrees that it has no right, title or interest in or to any Other Assets of
the
Depositor. To the extent that, notwithstanding the agreements and provisions
contained in the preced-ing sentence, such Noteholder or Note Owner either
(i)
asserts an interest or claim to, or benefit from, Other Assets, or (ii) is
deemed to have any such interest, claim to, or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to insolvency laws or
otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or
any
successor provision having similar effect under the Bank-ruptcy 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 ex-pressly 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
distribu-tions 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.
B-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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
principal amount 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 principal amount
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 hereof or in exchange hereof or in lieu hereof
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.
B-5
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 hereof, 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 hereon 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-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class B Notes designated above and referred to in the
Inden-ture.
Date:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
B-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
member-ship or participation in Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
B-8
EXHIBIT
C
FORM
OF
CLASS C 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 HEREOF FOR VALUE
OR
OTHER-WISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGIS-TERED OWNER
HEREOF, 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.
C-1
|
REGISTERED
|
$58,222,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AG 4
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
CLASS
C
5.68% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of FIFTY-EIGHT MILLION TWO HUNDRED TWENTY-TWO 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 September 2006
(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 August
1, 2006 (the “Indenture”),
between the Issuer and The Bank of New York, as Indenture Trustee (the
“Indenture
Trustee”).
However, the entire unpaid principal amount of this Note will be due and payable
on the earlier of the June 2012 Payment Date (the “Class
C Final Scheduled Payment Date”)
or the
Re-demption 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 Inden-ture. 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 com-puted 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 5.68% Asset Backed Notes (the
“Class
C Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2a Notes, the Class A-2b Notes, the Class A-3 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.
C-2
The
Class
C Notes are and will be equally and ratably secured by the collateral pledged
as
security therefor 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
amounts payable to the Swap Counterparty pursuant to the Interest Rate Swap
as
and to the extent provided in 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 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 hereof 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
registra-tion 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 hereof 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 denomina-tions 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.
C-3
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
Inden-ture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in
its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly 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 and Note Owner,
by its acceptance of a Note or a beneficial interest in a Note, by its
acceptance of a Note or a beneficial interest in a Note, acknowledges and agrees
that it has no right, title or interest in or to any Other Assets of the
Depositor. To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentence, such Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, or (ii) is
deemed to have any such interest, claim to, or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to insolvency laws or
otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or
any
successor provision having similar effect under the Bankruptcy Code), then
such
Noteholder or Note Owner further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and will be expressly subordinated
to the indefeasible payment in full of the other obligations and liabilities,
which, under the relevant documents relating to the securitization or conveyance
of such Other Assets, are entitled to be paid from, entitled to the benefits
of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to a priority
of
distributions or application under applicable law, including insolvency laws,
and whether or not asserted against the Depositor), including the payment of
post-petition interest on such other obligations and liabilities.
THIS
SUBORDINATION AGREEMENT WILL BE DEEMED A SUBORDINATION AGREEMENT WITHIN THE
MEANING OF SECTION 510(A) OF THE BANKRUPTCY CODE.
Each
Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, covenants and agrees by accepting the
benefits of the Indenture that such Noteholder or Note Owner will not institute
against the Depositor or the Issuer, or join in any institution against the
Depositor or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any federal or State bankruptcy
or
similar law in connection with any obligations relating to the Notes, the
Indenture or any of the other Basic Documents.
C-4
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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
principal amount 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 principal amount
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 hereof or in exchange hereof or in lieu hereof
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.
C-5
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 hereof, 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 hereon 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 PAGE INTENTIONALLY LEFT BLANK.
C-6
The
Issuer has caused this instrument to be signed, manually or in facsimile, by
its
Responsible Person, as of the date set forth below.
Date:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class C Notes designated above and referred to in the
Indenture.
Date:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
C-7
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee:
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto:
|
(name
and address of assignee)
|
the
within Note and all rights under said Note, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration of said, with full power of substitution in the
premises.
|
Dated:
|
*/
|
|||
|
Signature
Guaranteed
|
*/
|
*/
|
NOTICE:
The signature to this assignment must correspond with the name of
the
registered owner as it appears on the face of the within Note in
every
particular, without alteration, enlargement or any change whatever.
Such
signature must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Note Registrar, which requirements
include
member-ship 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-8
EXHIBIT
D
FORM
OF
CLASS D 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 HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, 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 HEREOF, 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.
D-1
IN
ADDITION, EACH HOLDER 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-2
|
REGISTERED
|
$58,222,000
|
|
No.
R-1
|
CUSIP
NO. 34528A AH 2
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
CLASS
D
7.12% ASSET BACKED NOTES
Ford
Credit Auto Owner Trust 2006-B, a statutory trust organized under the laws
of
the State of Delaware (the “Issuer”),
for
value received, promises to pay to CEDE & CO., or registered assigns, the
principal sum of FIFTY-EIGHT MILLION TWO HUNDRED TWENTY-TWO 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 September 2006
(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 August
1, 2006 (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
D Final Scheduled Payment Date”)
or the
Re-demption 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 Inden-ture. 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 com-puted on the basis of a
360-day year of twelve 30-day months.
The
principal of and interest on this Note are payable in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note will be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this
Note.
This
Note
is one of a duly authorized issue of Class D 7.12% Asset Backed Notes (the
“Class
D Notes”)
of the
Issuer. Also authorized under the Indenture are the Class A-1 Notes, the Class
A-2a Notes, the Class A-2b Notes, the Class A-3 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.
D-3
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 amounts payable to the Swap Counterparty pursuant to the
Interest Rate Swap as and to the extent provided in 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 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).
D-4
The
transfer of this Note is subject to the restrictions on transfer specified
on
the face hereof 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
registra-tion 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 hereof 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 denomina-tions 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
Inden-ture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in
its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly 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 and Note Owner,
by its acceptance of a Note or a beneficial interest in a Note, by its
acceptance of a Note or a beneficial interest in a Note, acknowledges and agrees
that it has no right, title or interest in or to any Other Assets of the
Depositor. To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentence, such Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, or (ii) is
deemed to have any such interest, claim to, or benefit in or from Other Assets,
whether by operation of law, legal process, pursuant to insolvency laws or
otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or
any
successor provision having similar effect under the Bankruptcy Code), then
such
Noteholder or Note Owner further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and will be expressly subordinated
to the indefeasible payment in full of the other obligations and liabilities,
which, under the relevant documents relating to the securitization or conveyance
of such Other Assets, are entitled to be paid from, entitled to the benefits
of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to a priority
of
distributions or application under applicable law, including insolvency laws,
and whether or not asserted against the Depositor), including the payment of
post-petition interest on such other obligations and liabilities.
D-5
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 Docu-ments.
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, each
Class of Notes, if beneficially owned by a Person other than Ford Credit, 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 Inden-ture 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
principal amount 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 principal amount
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 hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this
Note.
D-6
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 hereof, 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 hereon 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 PAGE INTENTIONALLY LEFT BLANK.
D-7
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:
August___, 2006
|
FORD
CREDIT AUTO OWNER TRUST 2006-B
|
|||
|
By:
|
U.S.
BANK TRUST
|
||
|
NATIONAL
ASSOCIATION,
|
|||
|
not
in its individual capacity but solely as Owner Trustee of Ford Credit
Auto
Owner Trust 2006-B
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class D Notes designated above and referred to in the
Indenture.
Date:
August___, 2006
|
THE
BANK OF NEW YORK,
|
|||
|
not
in its individual capacity but solely as Indenture
Trustee
|
|||
|
By:
|
|||
|
Responsible
Person
|
|||
D-8
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
member-ship or participation in the Securities Transfer Agents Medallion
Program or such other “signature guarantee program” as may be determined
by the Note Registrar in addition to, or in substitution for, the
Securities Transfer Agents Medallion Program, all in accordance with
the
Exchange Act.
|
D-9
EXHIBIT
E
FORM
OF
INVESTMENT LETTER
CLASS
D
NOTES
| Date |
Ford
Credit Auto Owner Trust 2006-B,
as
Issuer
The
Bank
of New York,
as
Indenture Trustee and
Note
Registrar
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention:
Structured Finance Services-Asset Backed Securities, Ford Credit Auto Owner
Trust Series 2006-B
Ford
Credit Auto Receivables
Two
LLC
c/o
Ford
Motor Credit Company
c/o
Ford
Motor Company
World
Headquarters
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ford Credit SPE Management Office
|
Re:
|
Ford
Credit Auto Owner Trust 2006-B
|
Class
D 7.12% Asset Backed Notes
Ladies
and Gentlemen:
In
connection with our proposed purchase of the Class D 7.12% Asset Backed Notes
(the "Class D Notes") of Ford Credit Auto Owner Trust 2006-B (the "Issuer"),
a
trust formed by Ford Credit Auto Receivables Two LLC (the "Depositor"), we
confirm that:
|
(1)
|
The
undersigned agrees to be bound by, and not to resell, transfer, assign,
participate, pledge or otherwise dispose of (any such act, a "Transfer")
the Class D Notes except in compliance with, the restrictions and
conditions set forth in the legend on the face of the Class D Notes
and
under the Securities Act of 1933, as amended (the "Securities
Act").
|
|
(2)
|
We
understand that no subsequent Transfer of the Class D Notes is permitted
unless we cause our proposed transferee to provide to the Issuer,
the Note
Registrar and the Depositor a letter substantially in the form of
this
letter, or such other written statement as the Depositor shall
prescribe.
|
|
(3)
|
We
are a "qualified institutional buyer" (within the meaning of Rule
144A
under the Securities Act) (a "QIB") and we are acquiring the Class
D Notes
for our own account or for a single account (which is a QIB) as to
which
we exercise sole investment
discretion.
|
E-1
|
(4)
|
We
are 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 5 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 5 whose ownership of the Class D Notes is effectively connected
with such person's 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).
|
|
(5)
|
We
are either:
|
(a)
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 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 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
(b)
an
insurance company acting on behalf of a general account and (i) on the date
hereof 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) the undersigned agrees that if, after the
undersigned's 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) 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.
E-2
|
(6)
|
We
understand that any purported Transfer of any Class D Note (or any
interest therein) in contravention of the restrictions and conditions
above will be null and void (each, a "Void Transfer"), and the purported
transferee in a Void Transfer will not be recognized by the Issuer
or any
other person as a Class D Noteholder for any
purpose.
|
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.
|
Very
truly yours,
|
|||
|
By:
|
|||
|
Name:
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Title:
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Securities
To Be Purchased:
$
- principal amount of Class D Notes
E-3
SCHEDULE
A
Schedule
of Receivables
Delivered
on CD Rom to the Indenture Trustee at the Closing